In Re: B.B. & T.S.B. ( 2004 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
March 19, 2004 Session
IN RE: B. B. & T. S. B.
Appeal from the Circuit Court for Perry County
No. 4178 Donald P. Harris, Judge
No. M2003-01234-COA-R3-PT - Filed June 9, 2004
This appeal involves a petition filed by the Department of Children’s Services to terminate the
parental rights of Mother to two of her minor children. The trial court granted the petition and
Mother appeals the decision. Because we find there was not clear and convincing evidence of a
ground for termination, we reverse the judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed
PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J.,
M.S., joined. WILLIAM B. CAIN , J. filed a concurring opinion.
David Kozlowski, Columbia, Tennessee, for the appellant, S.L.
Paul G. Summers, Attorney General and Reporter; Dianne Stamey Dycus, Deputy Attorney General,
for the appellee, State of Tennessee, Department of Children’s Services.
OPINION
At issue is the trial court’s grant of the petition to terminate the parental rights of S.L.
(“Mother”), in regard to two (2) of her minor children, a daughter, B.B., born November 14, 1989,
and a daughter, T.S.B., born December 29, 1990.1
1
Her oldest, a son, T.B.B., born April 20, 1988, was initially included in the termination petition but during the
trial Mother consented to her parental rights being terminated with respect to T.B.B. after learning of her son’s wish to
be adopted by his foster family, listening to the testimony of B.B.’s foster mother, and recognizing that this foster home
was an appropriate placement.
I. FACTS
In 1991, the children were placed in foster care under the custody of the Department of
Human Services (the predecessor to the Department of Children’s Services) following allegations
of neglect and concerns about their safety. Mother testified that her then husband and the children’s
father, T.B., voluntarily placed the children with the Department. Nonetheless, Mother concedes that
she was not able to take care of her children at that time.2
Following the Department’s non-suit of an initial termination petition filed in 1994, it
developed a plan to reunite the children with Mother. Crucial to this effort was renewed supervised
visitation between Mother and the children. The visits did not go well. The children became
resistant to attending and developed disruptive behaviors at school and in their foster home.
In early 1996, the juvenile court granted the Department’s ex parte motion to stop the visits.
This ban on visitation remains in effect at the time of this appeal.3 The expectation was that once
the visits with Mother were stopped, the children’s behavior would improve. In early 1997,
following the suspension of Mother’s visitation with the children, the Department changed the
children’s permanency plan goal to adoption. Although the behavior of the children initially
improved after visitation was stopped, their behavior significantly deteriorated in 1998 and early
1999.
Until 1999, the children remained in the same foster home together.4 In fact, DCS team
supervisor Jim Griner testified that the Department’s initial goal in 1994 had been to allow this foster
family to adopt all three children. Not until DCS caseworker Tina Richardson, who had handled the
children’s cases for many years took another position did the Department begin to question the
appropriateness of the placement of the children in their long standing foster home.5 Around this
2
Mother married when she was only thirteen and a half years old, and was a mother to the three children by age
eighteen. Mother stated she was too young to have children and knew little about being a parent because “I didn’t have
no parenthood when I was growing up.” Raised by her grandmother, M other explained that she did not attend school
as a child and is illiterate.
3
After her visits were stopped, Mother did what she could to see her children. She tried to get information about
the children without success. She attended the Foster Care Review Board meetings and the staffings when she knew
about them.
4
DCS caseworker Tina Richardson acknowledged that Mother had repeatedly warned the Department that she
had been sexually abused by the foster father when she was a child and that she wanted her children removed from his
home. The Department did not act on her concerns.
5
In October 2000, Mr. Griner received an e-mail from Lisa Nelson at the Center for Adoption referencing the
fact that DCS Supervisor Mickie Pierce had removed Tina Richardson from the children’s cases because she had lost
her “objectivity.”
2
time, the children were referred to the Center for Adoption,6 and Susie Jackson and Kelly Ann
Nichols with the Center were assigned to work with the children.
The children, particularly B.B., were exhibiting behaviors typical of a child who has been
physically or sexually abused. Jeannie Horton with DCS, Ms. Jackson, and then Ms. Nichols
suspected that the children had been abused in the foster home and conducted an investigation.
Indeed, Ms. Horton called in the foster mother concerning allegations that she had whipped B.B.
with a spoon in clear violation of the DCS discipline policy. Ms. Horton testified that she believed
B.B. was telling the truth about the incident.
Ms. Jackson explained that she had serious concerns about the foster home following her first
visit. She explained that when she approached the home, she could hear a screaming match between
an adult and a child going on inside. Once inside, Ms. Jackson was restricted to the front room of
the house and explained she had never been denied access to a home during a visit before. The foster
mother was speaking very negatively about the children’s mother. In addition, the foster mother
belittled the children in front of her during the visit. Ms. Jackson testified
I have real issues with any adult belittling a child, and most certainly in front of one
that’s suppose to be over their adoption. . . . I mean if you’re so brazen as to do that,
what are you doing when I’m not there.
In addition, Ms. Jackson was further disturbed by information from the school system that
concerned the foster mother’s attitude toward the girls. She testified that the school telephoned the
foster mother after T.S.B. had engaged in self-mutilation, and the foster mother replied she “didn’t
care whether she bled to death or not”and did not take her to the doctor until her husband came
home. The school was concerned when the foster mother made the comment she was going to
change her phone number because “if [they] knew how bad T.S.B. was, then they would know how
horrible of a child she is.”
At this point, the Department realized that the foster home was part of the problem. At trial,
a DCS supervisor conceded that “we could have been wrong” about the quality of the foster home.
The trial court also concluded that:
[t]he behavioral problems the two girls were exhibiting were described as typical of
behaviors exhibited by children who are being or have been abused. If the emotional
and psychological problems which the two girls developed have an external origin,
the mistreatment by these foster parents is the most probable cause.
6
The Center for Adoption is part of Child and Family Services, and it contracts with DCS to arrange adoptions
for special needs children in the Department’s custody. Typically, the Center has a caseload between 400 and 500
special needs children.
3
At the trial, DCS conceded that the foster home was “not a good environment” for the
children. The children were removed from that foster home in 1999 and went to different
placements due to their individual emotional, psychological and behavioral needs.
After the Department removed T.S.B. from her longstanding foster home, she was placed in
a therapeutic foster home7 in the Cookeville area. Barbara Campbell with OmniVisions, a
therapeutic foster care agency, testified that she placed T.S.B. and that the child had been in the same
therapeutic foster home for the last three years. Ms. Campbell explained that this placement is not
a pre-adoptive placement. T.S.B. has significant behavior problems; she can be physically
aggressive and exhibits severe temper tantrums. At times, T.S.B. has to be restrained to prevent her
from hurting herself or others. She has become extremely oppositional defiant to the point that the
school had to return her to the behavioral classroom. Her medication had to be increased due to
her temper tantrums. Regarding needed parenting skills, T.S.B. needs “a lot of consistency, a lot of
structure, a lot of love.” T.S.B. has a hard time dealing with change. Ms. Campbell testified that
T.S.B. “believes she has a meaningful relationship” with her Mother, cannot give a “concrete”
answer about whether she wants to be adopted, and has asked about going home to be with her birth
mother, although Ms. Campbell characterized that possibility as “fantasy.”
Ms. Nichols added that T.S.B. was twelve at the time of the termination hearing. She is in
special resource classes and has obtained a second grade reading level. She is on medication to help
with her mood swings and sleep. T.S.B. has difficulty getting along with peers and is “bossy.”
B.B.’s situation is much worse than T.S.B.’s. Following her removal from the foster home,
where she was demonstrating symptoms indicative of sexual or physical abuse, she experienced
significant problems. At the time of trial, she had been in the Middle Tennessee Mental Health
Institute (“MTMHI”) for a year and a half. This was her second long stay at MTMHI. When not at
MTMHI, B.B. was in twenty separate placements over a one year period. B.B. exhibits suicidal
tendencies and has even had delinquency charges brought against her because of aggressive
behavior. B.B. has expressed an interest in visiting with Mother. The case worker frankly had no
idea how termination of parental rights would impact B.B. and did not know whether visitation with
her mother would help or harm B.B.
According to Ms. Nichols, B.B. is generally a very loving and kind child. However, when
she gets upset, she can become violent. B.B. is on medication for her Attention Deficit Disorder and
for mood swings associated with her bi-polar disorder. In addition, B.B. experiences psychotic
features where she can have command hallucinations and auditory, visual hallucinations at the same
time. At the time of trial, B.B. was doing better and looking at being placed in a step-down, less
restrictive, facility such as a group home or a therapeutic foster home.
7
A therapeutic foster home differs from a regular DCS foster home in that it deals with more serious behavioral
problems, including physical aggression. These foster parents receive a “higher level of training, more intense.” Only
two children can be in a therapeutic foster home at one time. At the time of trial, a birth child was in the home with
T.S.B.
4
Despite the revelations about the mistreatment the children suffered in foster care, the
Department inexplicably never rethought its position that Mother was the cause of the children’s
behavioral problems.8 Since 1997, the Department has done nothing to restart visitation between
Mother and the children. Although Ms. Horton was assigned to be Mother’s contact and was
involved in the investigation of the foster home, she has never visited Mother’s home in the two
years she was assigned the case. Indeed, the record contains no proof that DCS made any contact
with Mother since 1997. In 2000, the Foster Care Review Board recommended that DCS set up a
process where Mother would at least be periodically updated on what was happening with the girls.
The Department assigned a Wayne County case worker to make those reports, but the reports were
never made.
Indicative of DCS’s attitude toward reuniting Mother with her children and its lack of
knowledge about Mother is the following exchange during Mother’s attorney’s cross-examination
of Jim Griner concerning whether Mother had complied with the Department’s permanency goals:
Q. Did I understand correctly your testimony to be that it was your position as a
representative of the Department that [Mother] has not complied with these
provisions, these objectives as of today?
A. That’s correct.
Q. Well, let me see if I can get some sense as to how you know that. And I
mean, not necessarily you as the supervisor today, but you as the Department.
You’ve had a chance to look at the record.
A. They’re very voluminous.
****
Q. Now let me go back to my question as to how you as a representative of the
Department can testify -- let’s take a look at number 1, numbered paragraph
125 which says, “Provides safe and secure home.” I assume that means that
[Mother] was required to have a safe and secure house where she was living
and where the children might live?
A. Uh-huh (affirmative). Yes.
Q. Okay. Ms. Jackson in her deposition testified that she had visited with
[Mother] at her home in Lewis County sometime in the late summer, early
fall of 1999. Do you have any record or do you see any record that indicates
8
Jim Grinder conceded that “what was going on could have been caused by another reason other than what we
thought at the time.”
5
that anybody who works with the Department has visited [Mother’s] home
since 1999?
****
Q. At some point though with Ms. Horton, at some point in 1999 the case was
referred to the Center for Adoption? The children’s case?
A. And that’s where the confusion arose. We at the Department had previously
done our own adoptions. And when the Center for Adoption came into
being, there was a referral system set up so that we would refer our cases that
were ready for adoptive placement to the Center for Adoption.
Also during that time we were told that the Center for Adoption
would take the cases and finish up writing termination summaries;
finish termination of parental rights, if that was necessary; work with
parents; do whatever was necessary to get the children adopted.
So we operated under that premise for quite some time before we learned that
the Center for adoption didn’t do all those things.
And so --
Q. But as some point --
A. At some point Ms. Horton was told, you are the contact person for [Mother]
. . . . If she needs anything, she’s to contact you. You are the contact person.
If somebody calls you and tells you that she needs something, you have the
record.
Q. Well, let me go back to my question. And Ms. Horton testified in her
deposition that she has never visited [Mother’s] home. You have any
indication that anybody from the Department has visited her home since
1999?
A. Probably not.
Q. But you’re saying that she has not provided a safe and secure home. That’s
your testimony today?
A. Yes.
Q. And that’s based upon what?
A. Based upon my reading of the record.
6
Q. Have you talked about her home to Ms. Hood, the Guardian ad Litem, who
actually has been there?
A. Yes.
Q. You’ve talked with her about it?
A. No.
Q. This talks about maintaining a source of income as something that [Mother]
had to do, correct?
A. Yes. Yes.
Q. And I think that, if I’m looking -- and this one is the July 30, 1999.
****
Q. This says, ‘[Mother and J.J.], need to maintain a consistent source of income.’
Hasn’t [Mother] gotten SSI benefits, from the day that you’ve known her?
A. I believe she has.
Q. Is that not income?
A. Yes.
Q. Where that she’s gotten child support for [youngest daughter] sometimes
from [Father].
A. It seems that I recall seeing that somewhere, but I’m not sure.
Q. So what hasn’t she done to maintain source of income, or “consistent source
of income,” as this says?
A. Well, a man and woman and five children can’t live off of one person’s SSI
check.
Q. Really?
A. And have everything they need.
****
7
Q. . . . .[I]f we go around Perry County identifying people who live on SSI
income only, you’re not going to take those children out of their home; are
you?
A. No.
Q. Number 15, numbered three says, “Have psychologicals done.” Now I notice
that’s not on the more recent foster care -- excuse me, care -- plan of cares,
permanency plans. I assume at some point psychologicals were done?
A. I think they were done, yes.
Q. Number five says, “Demonstrate ability to supervise children” in the 1996
report. Now that isn’t in the 2000 -- again No. 4, the 1999, that’s not in that
plan. Does that mean she did that or was no longer any need to do that?
A. I would think that -- I probably wasn’t there when staffing was done. But my
thinking would be that the plan was just written in a different way.
Q. All right.
A. That some of these responsibilities that are worded one way one year might
get worded another way in another year.
Q. But if I understand you, testimony earlier was that [Mother] hasn’t
demonstrated ability to supervise children. So she hasn’t met this particular
part of the plan, the 1996 plan?
A. No.
****
Q. Let me go back again. Again having nobody from the Department go her
house, see her with her two children that she now has, how in the world are
you testifying that she doesn’t know how to supervise children? Do we have
information in 1999, 2000, 2001, 2003 that . . . ., the two children with her,
are not being supervised?
A. In this mind this is not talking about [younger children]. This is talking about
[B.B. and T.S.B.].
Q. All right. So the answer is that you don’t have any information that she’s not
supervising [younger children]?
8
A. No, I don’t.
Q. Okay. And reports that she hasn’t had any contact with [T.S.B. or B.B.] since
January 1996, how can she demonstrate an ability to supervise them?
A. Well, I recall reading one of the plans, or one of the reviews from the Review
Board that the suggestion was made that she come up with a safety plan.
Q. That she write out a safety plan?
A. Yes, that she write up a safety plan that would show what she would do in
certain situations in order to protect children from abuse and so forth. And
I don’t think that that ever came through.
Q. Of course, she’s illiterate, correct?
A. Yes. But not totally.
Q. Number six says, “Learn nutrition, safety, and sanitary skills.” Is your
testimony that the department does not believe that she has learned nutrition,
safety, or sanitary skills?
A. I don’t know that.
Q. Okay. Seven, “Provide own transportation.” Is it your testimony that she
hasn’t complied with that provision?
A. There used to be a problem with that. I don’t know if there is any more.
****
Q. And to some extent objectives for parents are superfluous or perhaps just
filling in blanks on a sheet. I mean, there apparently were times that even
though that was the goal [Mother] was still coming to some of the staffings
and certainly to some of the Foster Care Review Board meetings, correct?
A. Yes.
****
9
Q. Well, you made a comment that the department worked hard for reunification.
A. Yes.
Q. Let me get the time frame that I’m looking at is as far as that goes. Is it ‘91-‘92?
A. Yes. And also after the first termination was dismissed and we started all over again,
we worked hard.
Q. Well, we spent a lot of time. But once the visits were cut off, what part of work was
done after that toward reunification? Or is it just fair to say that particularly after the
court approved adoption as the goal, that that pretty much cut out everything as far
as working with this family? It may sound as logical, but --
A. That’s what’s logical to me. That’s what normally happens when the goal changes
from reunification to adoption.
Q. So there hasn’t been any work at reunification since ‘96 or ‘97?
A. No.
If the Department had taken a renewed interest in Mother, they would have discovered that
her situation and parenting skills had improved. Despite her own deficient upbringing and her
educational limitations, Mother has successfully been raising two younger children: T.B., who is
eight, and J.B., who recently turned seven. Although her current income is limited, it is sufficient
for Mother to take care of herself and her children; at the time of trial, she was receiving disability
benefits and child support. T.B. and J.B. are well cared for and well adjusted children.
In fact, the children’s guardian ad litem Ms. Hood, did make a home visit to Mother’s
residence and seemed impressed at the strides Mother had made. It was her opinion that Mother has
done a “good job” raising the younger children, primarily living in Lewis County.9 She has a car and
a driver’s license. The home where she lives has three bedrooms and two baths, allowing each of
the children to have her or his own room. The children go to school and do well. J.B. had a speech
problem, but Mother located resources to address that issue. Mother allows no illegal drugs or
drinking in her home. Her home is safe, is clean, and has no conditions that would adversely impact
on the safety of her children.
Not even the Department disputes that Mother loves all of her children. One of the DCS case
managers commented that
9
Ms. Hood, the guardian ad litem, questioned Mother on her home to demonstrate to the trial court how well
she was caring for her two younger children at home, with home cooked meals, nicely decorated bedrooms for the
children with books in them.
10
[a]nybody that’s going to fight for as many years as she [S.L.] has, I don’t know what
else you can mark that up to other than she does care deeply for these kids.
Nonetheless, DCS filed a petition for termination of Mother’s parental rights in Perry County
Circuit Court on April 20, 2000.10 The Department alleged that Mother had willfully abandoned the
children, had not complied with the permanency plans, and had not remedied the conditions that
existed at the time the children were removed and that other conditions now exist that will subject
the children to further neglect.11
The trial was conducted the last two days of January 2003. Mother told the trial court that
she thought the children deserved to at least know who she was.
. . . . I think it is better for my children to know who I am. . . .Because they don’t
know who I am. They know what people has told them. They really don’t know me,
you know. I would like them to know who I am. . .[t]hat I am going to be there for
them. Not abuse them. Love them. . . . I think about T.B.B., B.B. and T.S.B.
everyday, you know. I know T.B.B’s in a good home, but the girls is not. I want to
be there for them. . . .
They don’t know me because ya’ll wouldn’t let them know me. That’s how I feel. . . .
I want what’s best for the kids; them to know who I am; them to know that I love
them and care for them and has fought all these years because I do love them.
Concerning the girls’ wishes regarding adoption, Ms. Nichols explained that she helped the
girls create a “life book,” which explains both the meaning of adoption and the girls’ past and their
present. T.S.B. “waffles” back and forth concerning whether she wants to be adopted. With B.B.,
“it really depends on the day whether or not she is for or against, or what she really wants. She does
not know.” In Ms. Nichols’ opinion, a ruling “one way or another” would be beneficial to the girls.
Regarding the girls’ prospects for adoption, Kathy Rogers, the Director of the Center for
Adoption, testified that she was confident that the girls could be adopted and that they were “typical”
of their special needs children.12 When cross-examined on this point by Mother’s attorney, Ms.
Rogers conceded she had not read the girls’ files, just talked with the staff. When informed of B.B.’s
needs, Ms. Rogers stated that roughly ten percent of their children have been institutionalized.
10
In 1995, Mother divorced the children’s father. On June 1, 1998, T .D.B, the children’s father, surrendered
his parental rights before Judge Cornelia Clark, Perry County Chancery Court.
11
Mother began the discovery process after filing her Answer. However, the process bogged down. The
Department took over sixteen (16) months to respond to M other’s first set of interrogatories. Finally, an Order was
entered setting deadlines for discovery and scheduling the trial.
12
Interestingly, Ms. Rogers explained that with special needs adoptions, the agency offers post-adoption support
to the adoptive families for six months.
11
Nonetheless, Ms. Rogers insisted that B.B. and T.S.B. were “typical” because they needed a family
and that in her opinion no child is “unadoptable, except for children who cannot form a relationship
. . . . and represent only three to five percent of the population.”
After commenting on the “especially tragic” circumstances of the case, the trial court
concluded in its memorandum opinion that:
While in the early years, [Mother] failed to comply with the plan for developing her
parenting skills and acquiring the means to provide for these children, she now has
developed those skills and acquired the necessities for caring for her children. She
cannot be said to have abandoned the children subject of this action since she has
been prohibited by court order from contact with them and her attempts to send gifts
were met with rejection. She cannot, however, provide for the special needs of these
two girls and as a result it is highly unlikely that they would ever be returned to her
home. Placing the two girls in [Mother’s] home would not be in their best interest
and, moreover, would not be in the best interest of the two children for whom
[Mother] now cares. It is also clear that maintaining a parental relationship between
[Mother] and [B.B.] and [T.B.] significantly reduces the likelihood they will find
adoptive homes.
Accordingly, the court finds by clear and convincing evidence that [B.B.] and
[T.S.B.] have been removed from the home of the parent, [Mother], for a period of
more than six months and the continuation of the parent and child relationship greatly
diminishes the two girls’ chances of early integration into a safe, stable and
permanent home. The court also finds it to be in the manifest best interests of [B.B.]
and [T.S.B.] that there be a termination of [Mother’s] parental rights so they may be
available for adoption.
II. STANDARD FOR TERMINATION OF PARENTAL RIGHTS
A parent has a fundamental right to the care, custody and control of his or her child. Stanley
v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212-13 (1972); Nash-Putnam v. McCloud, 921
S.W.2d 170, 174-75 (Tenn. 1996); In Re Adoption of a Female Child, 896 S.W.2d 546, 547 (Tenn.
1995); Nale v. Robertson, 871 S.W.2d 674, 678 (Tenn. 1994). This right is a fundamental but not
absolute right, and the state may interfere with parental rights if there is a compelling state interest.
Santosky v. Kramer, 455 U.S. 745, 747, 102 S. Ct. 1388, 1391 (1982); Nash-Putnam, 921 S.W.2d
at 174-75.
Terminating parental rights has the legal effect of reducing the parent to the role of a
complete stranger, and of
severing forever all legal rights and obligations of the parent or guardian of the child
against whom the order of termination is entered and of the child who is the subject
12
of the petition to that parent or guardian. The parent or guardian shall have no further
right to notice of proceedings for the adoption of that child by other persons and shall
have no right to object to the child’s adoption or thereafter to have any relationship,
legal or otherwise, with the child. . . .
Tenn. Code Ann. § 36-1-113(l)(1). The United States Supreme Court has recognized the unique
nature of proceedings to terminate parental rights, stating that “[f]ew consequences of judicial action
are so grave as the severance of natural family ties.” M. L. B. v. S. L. J., 519 U.S. 102, 119, 117 S.
Ct. 555, 565 (1996) (quoting Santosky, 455 U.S. at 787, 102 S. Ct. at 1412 (Rehnquist, J.,
dissenting)). As a result, “[t]he interest of parents in their relationship with their children is
sufficiently fundamental to come within the finite class of liberty interests protected by the
Fourteenth Amendment.” Id. The constitutional protections of the parent-child relationship require
certain safeguards before the relationship can be severed. O’Daniel v. Messier, 905 S.W.2d 182, 186
(Tenn. Ct. App. 1995).
Our legislature has identified those situations in which the state’s interest in the welfare of
a child justifies interference with a parent’s constitutional rights by setting forth grounds on which
termination proceedings can be brought. Tenn. Code Ann. § 36-1-113(g). The statutes on
termination of parental rights provide the only authority for a court to terminate a parent’s rights.
Osborn v. Marr, 127 S.W.3d 737 (Tenn. 2004). Thus, parental rights may be terminated only where
a statutorily defined ground exists. Tenn. Code Ann. § 36-1-113(c)(1); Jones v. Garrett, 92 S.W.3d
835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). In addition, it
must be shown that termination of parental rights is in the best interest of the child. Tenn. Code
Ann. § 36-1-113(c)(2); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
One of the safeguards required by the fundamental nature of the a parent’s constitutional
rights is that courts must apply a higher standard of proof when adjudicating termination cases.
Santosky, 455 U.S. at 769, 102 S. Ct. at 1403; In re M.W.A., 980 S.W.2d at 622; Messier, 905
S.W.2d at 186. To justify the termination of parental rights, both the grounds for termination and
the fact that termination is in the best interest of the child must be established by clear and
convincing evidence. Tenn. Code. Ann. § 36-1-113(c)(1); In re Valentine, 79 S.W.3d at 546. “This
heightened standard . . . serves to prevent the unwarranted termination or interference with the
biological parents’ rights to their children.” In re M.W.A., 980 S.W.2d at 622.
In order to be clear and convincing, evidence must eliminate any serious or substantial doubt
about the correctness of the conclusions to be drawn from the evidence. In re Valentine, 79 S.W.3d
at 546; Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992); Messier, 905 S.W.2d
at 188. Such evidence should produce in the fact-finder’s mind a firm belief or conviction as to the
truth of the allegations sought to be established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App.
2002); In re C. W. W., 37 S.W.3d 467, 474 (Tenn. Ct. App. 2000). In contrast to the preponderance
of the evidence standard, clear and convincing evidence should demonstrate that the truth of the facts
asserted is “highly probable” as opposed to merely “more probable” than not. Lettner v. Plummer,
13
559 S.W.2d 785, 787 (Tenn. 1977); In re C. W. W., 37 S.W.3d at 474; see also Estate of Acuff v.
O’Linger, 56 S.W.3d 527, 537 (Tenn. Ct. App. 2001).
Thus, it was the burden of DCS to present “evidence in which there is no serious or
substantial doubt about the correctness of the conclusions drawn by the evidence” that grounds exist
and that termination would serve the best interests of the children. In re Valentine, 79 S.W.3d at
539.
In addition, where the Department seeks to terminate parental rights on a ground that
implicates the Department’s obligation to use reasonable efforts to make it “possible for the child
to return safely to the child’s home,” Tenn. Code Ann. §§ 37-1-166(a)(2), -166(g)(2), those
reasonable efforts must also be proved by clear and convincing evidence. In re C.M.M. & S.D.M.,
No. M2003-01122-COA-R3-PT, 2004 WL 438326, at **7-8 (Tenn. Ct. App. March 9, 2004) (no
Tenn. R. App. P. application filed).
Finally, because of the constitutional implications, gravity of consequences, higher standard
of proof, and required individualized decision making, our legislature has explicitly required that
courts making termination of parental rights decisions “enter an order which makes specific findings
of fact and conclusions of law.” Tenn. Code Ann. § 36-1-113(k). The trial court is in the best
position to make such findings. In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).
In this court’s review, we must determine de novo whether DCS has proved its case by clear
and convincing evidence. In re Valentine, 79 S.W.3d at 536. First, we must review each of the trial
court’s specific findings of fact de novo, with a presumption of correctness unless the evidence
preponderates otherwise, in accordance with Tenn. R. App. P. 13(d). Then, we must determine
whether the facts, either as found by the trial court or as supported by the preponderance of the
evidence, clearly and convincingly establish the elements necessary to terminate parental rights.
Jones, 92 S.W.3d at 838; In re Valentine, 79 S.W.3d at 548-49.
III. GROUNDS
The only ground at issue in this appeal and the only ground found by the trial court is
persistence of conditions which prevent the children’s return to Mother’s home.13 That ground is
set out in Tenn. Code Ann. § 36-1-113(g)(3)(A), and allows a trial court to terminate the parental
rights if:
The child has been removed from the home of the parent or guardian by order of a
court for a period of six (6) months and:
13
DCS alleged other grounds in the trial court. That court correctly concluded that M other had not abandoned
her children because she had been cut off from any contact with them by judicial fiat. The trial court also correctly
concluded that the Department failed to present proof that Mother had not complied with relevant permanency plans.
DCS has not pursued either ground on appeal.
14
(i) The conditions which led to the child’s removal or other conditions which in all
reasonable probability would cause the child to be subjected to further abuse or
neglect and which, therefore, prevent the child’s safe return to the care of the
parent(s) or guardian(s), still persist;
(ii) There is little likelihood that these conditions will be remedied at an early date
so that the child can be safely returned to the parent(s) or guardian(s) in the near
future; and
(iii) The continuation of the parent or guardian and child relationship greatly
diminishes the child’s chances of early integration into a safe, stable and permanent
home.
Under the clear language of the statute, the conditions which prevent the child’s safe return
to the home may be either (1) the conditions that led to removal or (2) other conditions likely to
cause further neglect.
In its order, as set out above, the trial court specifically found (1) the children had been
removed from Mother’s home for more than six months, (2) that continuation of the parent-child
relationship diminished the girls’ chance of integration into a safe, stable, permanent home, and (3)
that termination of Mother’s parental rights was in the girls’ best interest so they could be eligible
for adoption. The court did not specifically find that a condition existed that made further neglect
probable and prevented the safe return of the girls to the Mother’s home in the near future. However,
other findings by the court make it clear that the court considered the girls’ emotional, psychological,
and behavioral problems to be the required conditions along with Mother’s inability, in the court’s
opinion, to “provide for the special needs of the two children now in foster care.”14
It is this set of circumstances upon which the Department relies as the ground for termination.
In its brief, the Department argues:
In this case, there are persistent conditions which in all reasonable probability would
cause these children to be subjected to further abuse or neglect and, therefore, prevent
14
Here, the original condition that led to the children’s removal from Mother’s home was neglect. The
Department did not prove by clear and convincing evidence that Mother’s current situation would lead to further neglect.
In fact, the trial court found that Mother’s parenting skills had greatly improved as evidenced by her parenting of her two
youngest children:
[M other] has apparently done well with the two children now living with her. They appear to be well
fed, appropriately clothed, and to have affection for their mother. They are doing well in school. Their
home is clean and safe. The mother has a means of transportation. [Mother] appropriately seeks
assistance from others when she is not able to meet the needs these children have. W hile [Mother] has
significant limitations because of her illiteracy and lack of formal education, she had developed the
parenting skills necessary to provide an appropriate home for these two children.
15
their return to [Mother’s] care. There is no dispute that both [T.S.B.] and [B.B.] are
special needs children. Based on the need for consistency and structure and
[Mother’s] limited abilities, these children cannot be safely returned to her care.
****
Given her significant limitations due to her illiteracy and lack of formal education,
[Mother] is not capable of developing the parenting skills needed to address the
special needs of these children.
IV. IS THERE CLEAR AND CONVINCING EVIDENCE ?
Consequently, the questions before us are (1) whether the Department proved by clear and
convincing evidence that the girls have serious problems and special needs and that Mother is unable
to provide the parenting to meet those needs, and (2) would these circumstances, in all reasonable
probability, subject the children to further neglect and, therefore, prevent the their safe return to
Mother’s home in the near future. Additionally, did the Department prove by clear and convincing
evidence that “there is little likelihood that these conditions will be remedied at an early date so that
the child[ren] can be safely returned to the parent . . . in the near future.”
The proof clearly shows that the two children have serious emotional, psychological, and
behavioral problems that have required treatment, counseling, medication, and specialized
placements. There is no proof that any of these problems were due to or exacerbated by Mother’s
contact with the children. In fact, we agree with the trial court’s assessment that if any external
factor can be said to have caused the problems, it was probably the mistreatment by the foster
parents. The Department placed the girls in this foster home and left them there despite Mother’s
insistence that it was not a good placement. The Department chose to attribute the children’s
behavioral problems to their visits with Mother, rather than to investigate the situation in the foster
home, including the possibility that the foster parents influenced the children’s behavior at the visits.
Regardless of the factors contributing to the serious problems the girls now face, however, we agree
with the Department that it is the children’s current circumstances that are relevant.
There is no dispute these children have special needs. They have been in specialized or
therapeutic placements for over three years. There is no clear proof that they will be able to live in
anything other than a therapeutic placement anytime soon. Thus, their condition alone may prevent
their return to Mother’s home or to any other home “in the near future,” in the language of Tenn.
Code Ann. § 36-1-113(g)(3)(A)(ii).
However, we cannot conclude that the girls’ condition alone establishes grounds for
termination under the persistent conditions ground, and the Department does not argue that is the
case. DCS conceded that Mother was an appropriate parent to her younger children, but argued that
due to her lack of education and limited means, she would be unable to navigate the mental health
16
services that the girls would need or to provide appropriate parenting. It is in this area that we find
the proof lacking.
There is no clear and convincing evidence to support a conclusion that Mother is unable to
provide a suitable home for her daughters or meet their special needs in the event they ever improve
enough to be moved from their current placements. The difficulty the Department had with this
proof stems from the fact that the Department had no current information about Mother or her
situation. No one from DCS has visited Mother’s home since 1999. The Department made no
further efforts with Mother after the visits between Mother and the children were stopped. For some
period of time, Department workers apparently thought the Center for Adoption was responsible for
gathering and documenting information relating to possible termination.
The Department obviously gave up on attempting to reunite the family when the visits were
stopped. Even when it discovered the mistreatment or abuse in the foster home, a possible and likely
cause of the misbehavior that led to the cessation of the visits, the Department did nothing to restart
those visits or to explore reuniting the family. Consequently, the Department had no current
information and presented no proof regarding Mother’s current situation, her ability or inability to
parent these children, or any attempts by the Department to provide her with training and assistance
she would need to successfully parent them.
Although the Department supervisor testified that a psychological assessment of Mother had
probably been done, none was entered into the record. The Department did not prove that it had any
current assessment of Mother’s ability to learn the skills needed to deal with the special needs of the
children. DCS has not even considered the possibility or given Mother an opportunity to join in
counseling with and training for handling the girls’ needs. Since 1999, when DCS discovered the
abusive foster care situation, the record indicates no one at DCS has ever proposed a plan to restart
visits with Mother or allow the children and Mother to enter group counseling together. Further the
Department did not prove that, if it had made reasonable efforts to provide those skills and support
to Mother, that her inadequacies, if they exist, could not be remedied. Although employees of the
Department were apparently comfortable in reaching that conclusion, we are not, because there is
simply no proof to that effect.
The Department argues that the girls require the structure of a therapeutic foster or adoptive
home. Of course, if the expectation is that they will remain in foster care, the need to terminate
parental rights does not exist. At trial, there was testimony that therapeutic foster parents are given
training in addition to that given to other foster parents. The Department has not offered this training
to Mother or demonstrated that she is incapable of acquiring the necessary skills through such
training. The Department further asserts that because of the issues they face, the children require
consistency and structure as well as a parent with the ability to oversee a medication regimen.
Again, it did not prove that Mother is currently incapable of meeting these needs.
The Department also argues that because of their intense behaviors and needs, the children
need to be placed in a home with no more than one other child, thereby eliminating the possibility
17
of placing them in Mother’s home where other children live. The basis for this argument is
testimony that State regulation prohibits the placement of more than two children in a therapeutic
foster home.15 There was no testimony from a mental health professional regarding either of these
particular children.
Ms. Nichols, from the Center for Adoption, testified as to the type of family or placement
that, in the opinion of the Center, would be suitable for each of the children. Ms. Nichols is of the
opinion that the girls should be the only children in a home and that they should not be placed in a
home together. Consequently, she would search for adoptive homes meeting these criteria.
However, there is no proof from any mental health professional who has treated these girls as to the
type of environment that is needed for each or that the conditions desired by Ms. Nichols are a
requisite for these children.
Mother testified and told everyone who would listen that she wanted to try to reintroduce
herself to her girls and learn how to help them, but DCS continually turned a deaf ear to her pleas
over the years. Since visitation was cut off, Mother has continued to try to get information about the
children and their welfare. She attended Foster Care Review Board meetings, and consistently
refused to agree to termination. She unsuccessfully attempted to contact the caseworker she was told
was assigned to her children.
After a thorough review of the record before us, we conclude that the Department failed to
prove by clear and convincing evidence that conditions exist that in all reasonable probability would
subject these children to further neglect and, therefore, prevent their safe return to Mother’s care and
that there is little likelihood that any conditions preventing the children’s return could not be
remedied with sufficient training, support, and assistance by the Department in furtherance of its
obligation to make reasonable efforts to reunify the family. Consequently, we find that the
Department failed to prove the existence of any ground for termination of Mother’s parental rights.
The judgment of the trial court terminating Mother’s parental rights is reversed.
V. BEST INTEREST AND THE FUTURE
Because there was not sufficient proof of a ground to terminate, we need not reach the best
interest analysis. Tenn. Code Ann. § 36-1-113(c); In re Valentine, 79 S.W.3d at 546. We simply
note that the trial court considered the special needs of the children and Mother’s abilities in its best
interest analysis.
Our reversal of the termination of Mother’s rights does not change or affect custody of the
children. In re Valentine, 79 S.W.3d at 550. When a petition to terminate parental rights is granted,
Tenn. Code Ann. § 36-1-113(m) confers broad dispositional authority to the circuit court hearing the
15
The regulation’s application to this situation is questionable since Mother’s home or any regular foster care
placement is not a therapeutic foster home. In other words, if the children improve sufficiently to leave their therapeutic
placement, the regulation presumably would not apply.
18
matter; however, our reversal of the termination order ends that matter, and the authority of the
circuit court is at end. See In re R.S., No. M2002-00919-COA-R3-CV, 2003 WL 22098035 (Tenn.
Ct. App. Sept. 11, 2003) (no Tenn. R. App. P. 11 application filed). Consequently, jurisdiction over
the custody of these children and related matters returns to the juvenile court that determined these
children to be dependent and neglected. Tenn. Code Ann. § 37-1-103(a)(1); Dep’t of Human Servs.
v. Gouvitsa, 735 S.W.2d 452, 455-56 (Tenn. Ct. App. 1987); In re R.S., 2003 WL 22098035, at *19.
Thus, the decision of whether to allow Mother visitation with the children, if such visitation
is requested, rests with the juvenile court. That issue is not part of this appeal. Having said that, we
are deeply concerned that the no-visitation order entered in 1996 is still in effect if it has not been
reconsidered in light of changed circumstances.16 Given the Department’s own admission that the
children suffered abuse or at least mistreatment at their foster home, it appears that the misbehavior
that resulted in Mother’s visitations being halted was not actually attributable to Mother. If visitation
is requested, and the Department for some reason opposes it, it seems to us that the Department
would need to prove that such visitation would be harmful to the children.
In addition, as long as the children remain in the Department’s custody, it has an obligation
to prepare permanency plans for each child. The Department remains under a responsibility to make
reasonable efforts to provide Mother with the tools she will need and the opportunity to demonstrate
the ability to provide a safe, stable, and suitable home for these children according to their individual
needs. We hope, in light of all that has happened to both the girls and the changes and efforts
Mother has made, that the permanency plan approved by the court will include reasonable efforts
to reintroduce Mother to her daughters. If Mother either cannot or does not comply with such a plan,
or is unable to provide the parenting needed by these children with the necessary support and
resources, then DCS will have another opportunity to petition for termination of her parental rights
in the future.
VI. CONCLUSION
This court deals with no issue of greater importance than termination of parental rights.
There is no more significant action by the State in the context of civil proceedings. We are deeply
aware of the gravity of any decision we make in these cases. We have given thorough consideration
to the entire record in this case and to each argument propounded by the parties. Our decision is
based upon our conclusion that DCS failed to meet the substantial evidentiary burden placed upon
it by the United States Constitution, state statutes, and the courts.
Because the Department did not provide clear and convincing evidence that grounds for
termination exist, we reverse the trial court’s judgment. We agree that this is an “especially tragic”
situation. Whether or not termination of Mother’s rights would help ameliorate the consequences
16
Nothing in the record before us indicates whether a modification has been sought.
19
to the children of the situation is simply not the question. Termination of Mother’s fundamental
rights can only be upheld when there is a statutorily established ground for that termination. Costs
of this appeal are taxed to the Department of Children’s Services.
___________________________________
PATRICIA J. COTTRELL, JUDGE
20