State of Tennessee Department of Children's Services v. B.B.M. ( 2004 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 27, 2004 Session
STATE OF TENNESSEE, DEPARTMENT OF CHILDREN'S SERVICES
v. B.B.M.
Appeal from the Juvenile Court for Hancock County
No. 12753 through 12756 Mindy Norton Seals, Judge
No. E2004-00491-COA-R3-PT - FILED NOVEMBER 17, 2004
This appeal involves the Juvenile Court’s termination of the parental rights of B.B.M. (“Mother”)
to her four children. After a trial, the Juvenile Court held there was clear and convincing evidence
that DCS had made a reasonable effort to assist Mother to reunite with her children. The Juvenile
Court also concluded that DCS had proven by clear and convincing evidence that Mother’s parental
rights should be terminated on three separate grounds. Finally, the Juvenile Court held there was
clear and convincing evidence that termination of Mother’s parental rights was in the children’s best
interest. The record on appeal is lacking in many respects and does not contain even the permanency
plans developed by DCS to assist Mother in the unsuccessful attempt to reunite her with her children.
We conclude the record, such as it is, does not contain sufficient evidence to support the Juvenile
Court’s conclusion that there was clear and convincing evidence that DCS had made a reasonable
effort to assist Mother to reunite with her children. The judgment of the Juvenile Court is, therefore,
reversed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
Juvenile Court Reversed; Case Remanded
D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and
SHARON G. LEE, J., joined.
Scott A. Hodge, Morristown, Tennessee, for the Appellant B.B.M.
Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Senior Counsel,
Nashville, Tennessee, for the Appellee State of Tennessee, Department of Children’s Services.
OPINION
Background
This litigation began in August of 1998 when DCS filed a Petition for Temporary
Custody of Mother’s four children, who then were ages 1, 3, 6, and 8. In the petition, DCS claimed
the children were dependent and neglected because both parents, who were divorced and living apart,
had lost their homes and were unable to care for the children. Apparently, the children’s father had
placed them with various relatives who no longer were able to care adequately for them. Along with
the petition, DCS filed an Affidavit of Reasonable Efforts setting forth what efforts had been made
to prevent removing the children from their home. The Juvenile Court granted the petition and
awarded DCS temporary custody. In April and July of 1999, temporary custody of three of the four
children was returned to the father on a “trial home placement.” Although the record contains no
order returning temporary custody of the fourth child to the father, the Juvenile Court’s final
judgment stated “that is in fact what occurred.”
DCS filed a second Petition for Temporary Custody in May of 2000, claiming all four
children once again were dependent and neglected. With regard to the father, DCS alleged he had
a “lengthy alcohol dependency problem,” although he had expressed an intention to seek treatment.
With regard to Mother, DCS stated she was receiving Social Security disability benefits for “mental
problems” and was not an available resource for placement of the children. No Affidavit of
Reasonable Efforts was filed by DCS or, if one was filed, it is not contained in the record on appeal.
The Juvenile Court apparently granted the petition and awarded DCS temporary custody, but the
order granting the petition likewise is not in the record.
In August of 2000, Mother filed a Petition seeking custody of all four children. She
asserted that she was in a position to provide proper care for her children. According to Mother, she
was remarried and living in a three bedroom home. Mother noted that she was receiving a Social
Security disability check for a physical disability, not a mental disability, and that her new husband
was actively employed building homes.
On May 11, 2001, DCS filed a motion asking the Juvenile Court to review “the
necessity of continued foster care, the appropriateness of the placement, the extent of compliance
of all parties with the terms of the foster care plan, the extent of progress made in achieving the goal
of the plan, and the future status of the children.” DCS also filed a Notice stating the review would
be heard by the Juvenile Court on May 22, 2001. The record contains no information regarding what
happened at the review, or if it even happened.
The next document in the record is a combined motion and order dated September
5, 2001, which restored full legal custody of the two oldest children to their father on a “trial home
placement” effective November 29, 2001. In the meantime, DCS filed another motion requesting
that the Juvenile Court review the current foster care situation and the parents’ progress in
completing the terms of their permanency plans. DCS filed a Notice saying this review would take
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place on September 12, 2001. Once again, the record contains no information regarding what
happened at the review hearing, assuming it even took place.
On November 21, 2001, the Juvenile Court entered an Order declaring that the two
older children continued to be dependent. This was eight days before custody of the two older
children was to be returned to the father per the September 5, 2001, order. Custody of the two older
children never was returned to the father because he officially surrendered his parental rights to all
four children on November 14, 2001.
On February 25, 2002, DCS filed another motion asking the Juvenile Court to review
“the necessity of continued foster care, the appropriateness of the placement, the extent of
compliance of all parties with the terms of the foster care plan, the extent of progress made in
achieving the goal of the plan, and the future status of the child[ren].” A guardian ad litem was
appointed on the children’s behalf on February 27, 2002. One month later, the guardian ad litem
filed a report with the Juvenile Court recommending, among other things, that the children remain
in foster care at least until Mother completed the terms of her permanency plan. On March 27, 2002,
the Juvenile Court conducted a hearing to review the status of the foster care placement and Mother’s
compliance with the terms of the permanency plan. Following this hearing, the Juvenile Court
entered an Order continuing the current foster care placement and ordering Mother to complete the
terms of the permanency plan by May 27, 2002.
The next pertinent document in the record is dated October 21, 2002, and is the
petition to terminate Mother’s parental rights to all four children. In this petition, DCS alleged,
among other things, that: 1) the children had been removed from the home for at least six months
and the conditions which led to their removal persisted; 2) there was little likelihood that these
conditions would be remedied at an early date which would permit a safe return of the children to
Mother; 3) Mother was unable to provide a suitable home for the children and had made no
reasonable efforts to provide a suitable home; and 4) continuation of the parent/child relationship
would greatly diminish the children’s chances of early integration into a safe, stable and permanent
home. DCS also alleged there had not been substantial compliance by Mother with the terms of
“periodic foster care plans” or permanency plans. According to DCS, Mother had willfully
abandoned the children by failing to visit or engaging only in token visitation with them and by
refusing to pay child support for more than four consecutive months preceding the filing of the
petition. Finally, DCS alleged it would be in the best interests of the children for Mother’s parental
rights to be terminated.
The next documents in the record pertain to the father’s November 14, 2001,
surrender of his parental rights and are not directly pertinent to this appeal. There are no documents
in the record pertaining to Mother which were entered between the time DCS filed its petition to
terminate Mother’s parental rights on October 21, 2002, and the Juvenile Court’s final judgment
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granting that petition on January 28, 2004.1 In its final judgment, the Juvenile Court held there was
sufficient evidence to terminate Mother’s parental rights on three grounds. Specifically, the Juvenile
Court stated:
[M]other’s lack to provide a suitable home and demonstrated lack of
concern for the children precluding an early return of the children to
her care, conditions which led to the removal still persist, other
conditions persist which would in all probability cause the children
to be subjected to further abuse and neglect and mother has failed to
comply in a substantial manner with the permanency plan. These
grounds have been proven by clear and convincing evidence.
The Juvenile Court also held there was clear and convincing evidence that termination of Mother’s
parental rights was in the best interest of the children.
Mother appeals claiming there was no clear and convincing evidence to support
terminating her parental rights on any of the three grounds relied upon by the Juvenile Court.
Mother also claims there was no clear and convincing evidence to support a finding that termination
of her parental rights was in the best interest of the children. Mother also maintains the termination
of her parental rights must be reversed because DCS did not exercise reasonable efforts on her
behalf.
Discussion
The factual findings of the Juvenile Court are accorded a presumption of correctness,
and we will not overturn those factual findings unless the evidence preponderates against them. See
Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal
issues, our review is conducted “under a pure de novo standard of review, according no deference
to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon County
Bd. Of Educ., 58 S.W.3d 706, 710 (Tenn. 2001). In In re Adoption of T.A.M., No. M2003-02247-
COA-R3-PT, 2004 Tenn. App. LEXIS 317 (Tenn. Ct. App. May 12, 2004), no appl perm appeal
filed, this Court observed that:
Because of the heightened burden of proof required by Tenn.
Code Ann. § 36-1-113(c), we must adapt Tenn. R. App. P. 13(d)'s
customary standard of review for cases of this sort. First, we must
review the trial court's specific findings of fact de novo in accordance
with Tenn. R. App. P. 13(d). Thus, each of the trial court's specific
factual findings will be presumed to be correct unless the evidence
1
The one document filed during this time period was the order on the March 27, 2002, hearing. The order
pertaining to this hearing actually was signed by the Juvenile Court on November 13, 2002, but was entered nunc pro
tunc to March 27.
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preponderates otherwise. Second, 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
grounds for terminating the biological parent's parental rights. Jones
v. Garrett, 92 S.W.3d at 838; In re Valentine, 79 S.W.3d at 546; Ray
v. Ray, 83 S.W.3d at 733; In re L.S.W., 2001 Tenn. App. LEXIS 659,
No. M2000-01935-COA-R3-JV, 2001 WL 1013079, at *5 (Tenn. Ct.
App. Sept. 6, 2001), perm. app. denied (Tenn. Dec. 27, 2001).
In re Adoption of T.A.M., 2004 Tenn. App. LEXIS 317, at ** 8-9 (footnote omitted).
In Dep't of Children's Servs. v. D.G.S.L., this Court discussed the relevant burden of
proof in cases involving termination of parental rights. Specifically, we observed:
It is well established that “parents have a fundamental right to
the care, custody, and control of their children." In re Drinnon, 776
S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Stanley v. Illinois, 405
U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)). "However, this
right is not absolute and parental rights may be terminated if there is
clear and convincing evidence justifying such termination under the
applicable statute." Id. (citing Santosky v. Kramer, 455 U.S. 745, 102
S. Ct. 1388, 71 L. Ed. 2d 599 (1982)).
Termination of parental or guardianship rights must be based
upon a finding by the court that: (1) the grounds for termination of
parental or guardianship rights have been established by clear and
convincing evidence; and (2) termination of the parent's or guardian's
rights is in the best interests of the child. Tenn. Code Ann.
§ 36-1-113(c). Before a parent's rights can be terminated, it must be
shown that the parent is unfit or substantial harm to the child will
result if parental rights are not terminated. In re Swanson, 2 S.W.3d
180, 188 (Tenn. 1999); In re M.W.A., Jr., 980 S.W.2d 620, 622
(Tenn. Ct. App. 1998). Similarly, before the court may inquire as to
whether termination of parental rights is in the best interests of the
child, the court must first determine that the grounds for termination
have been established by clear and convincing evidence. Tenn. Code
Ann. § 36-1-113(c).…
Dep't of Children's Servs. v. D.G.S.L., No. E2001-00742-COA-R3-JV, 2001 Tenn. App. LEXIS 941,
at **16-17 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed.
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Termination of parental rights may be based upon a number of statutory grounds. The
statutory provisions relied upon by the Juvenile Court provide that parental rights can be terminated
for the following reasons:
(1) Abandonment by the parent or guardian, a defined in § 36-1-102,
has occurred;
(2) There has been substantial noncompliance by the parent or
guardian with the statement of responsibilities in a permanency plan
or a plan of care pursuant to the provisions of title 37, chapter 2, part
4;
(3)(A) 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:
(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.
Tenn. Code Ann. §§ 36-1-113(g)(1) through (g)(3) (Supp. 2004).
As relevant to this appeal, Tenn. Code Ann. § 36-1-102(1)(A)(ii) defines
abandonment as follows:
The child has been removed from the home of the parent(s) or
guardian(s) as the result of a petition filed in the juvenile court in
which the child was found to be a dependent and neglected child, as
defined in § 37-1-102, and the child was placed in the custody of the
department or a licensed child-placing agency, that the juvenile court
found, or the court where the termination of parental rights petition
is filed finds, that the department or a licensed child-placing agency
made reasonable efforts to prevent removal of the child or that the
circumstances of the child's situation prevented reasonable efforts
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from being made prior to the child's removal; and for a period of four
(4) months following the removal, the department or agency has made
reasonable efforts to assist the parent(s) or guardian(s) to establish a
suitable home for the child, but that the parent(s) or guardian(s) have
made no reasonable efforts to provide a suitable home and have
demonstrated a lack of concern for the child to such a degree that it
appears unlikely that they will be able to provide a suitable home for
the child at an early date.
In the present case, the Juvenile Court found there was clear and convincing evidence
that the statutory grounds for termination in Tenn. Code Ann. §§ 36-1-113(g)(1) through (g)(3) had
been met. Clear and convincing evidence supporting any single ground will support a termination
order. See In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
Initially, we note that there were at least two permanency plans prepared for Mother
by DCS and approved by the Juvenile Court. Generally, permanency plans are designed, inter alia,
to assist the parent in taking the necessary steps to be reunited with his or her child and so the parent
can provide a safe environment for the child’s eventual return. We already have mentioned the
significant lack of information contained in the record on appeal. In addition to what we already
have noted, and much to this Court’s consternation, neither of the permanency plans are in the
record. Due to the heightened burden of proof necessitated by the constitutional ramifications of
forever terminating a parent’s rights to his or her child, we believe it is the responsibility of DCS to
ensure that this critical information is contained in the record on appeal.
One of the grounds for terminating Mother’s parental rights was the Juvenile Court’s
factual conclusion that Mother failed to substantially comply with the statement of responsibilities
contained in her permanency plans. In its final judgment the Juvenile Court did set forth many of
the requirements contained in Mother’s most recent permanency plan. However, without the ability
to actually review all the requirements of the permanency plan because we have no way of even
knowing what all the requirements were, we cannot and will not affirm the conclusion that Mother
failed to substantially comply with these requirements of the plan. Because we are effectively
precluded from reviewing whether Mother did or did not substantially comply with the terms of her
permanency plan, the Juvenile Court’s conclusion that she did not must be reversed.
Permanency plans typically provide this Court with much relevant information, or at
least they do when they are included in the record. Not only do the plans provide this Court with the
various requirements the parent must complete in order to be reunited with his or her children, but
they usually contain information on assistance that has been provided to the parent by DCS with the
hope of enabling the parent to achieve the goal of reunification. One of Mother’s claims on appeal
is that DCS failed to provide her with adequate assistance in achieving the goal of reunification.
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In the recent case of In re C. LaC. and D.L., No. M2003-02164-COA-R3-PT, 2004
Tenn. App. LEXIS 172 (Tenn. Ct. App. Mar. 17, 2004), no appl. perm. appeal filed, this Court
observed that:
Before we evaluate whether there is sufficient evidence to
establish the grounds for termination, we must ascertain whether the
Department made reasonable efforts to prevent the need for removal
and thereafter to return the children safely to their home for this is not
a case where reasonable efforts are excused. Unless remaining with
the parent exposes the children to substantial risk of harm, the
Department must make reasonable efforts to prevent the need for
removal of the children prior to separating the children from the
family, Tenn. Code Ann. § 37-1-166(a)(1), and thereafter to return the
children to their home unless it exposes the children to substantial
harm. Tenn. Code Ann. § 37-1-166(a)(2); Tenn. Code Ann.
§ 37-1-166(g)(2).
The Department must establish by clear and convincing
evidence that it made reasonable efforts to reunite the children with
the parent. In re Valentine, 79 S.W.3d at 546; In re C.M.M. &
S.D.M., 2004 Tenn. App. LEXIS 160, No. M2003-01122-COA-R3-
PT, 2004 WL at *11, (Tenn. Ct. App. March 9, 2004); Tenn. Code
Ann. § 36-1-113(c). This burden requires that the Department present
sufficient evidence to enable us to conclude, without serious or
substantial doubt, that the efforts were reasonable under the
circumstances. In re Valentine, 79 S.W.3d at 546; Walton v. Young,
950 S.W.2d 956, 960 (Tenn. 1997); In re C.D.B., 37 S.W.3d 925, 927
(Tenn. Ct. App. 2000).
In re C. LaC. and D.L., 2004 Tenn. App. LEXIS 172, at ** 14-16.2
In the present case, the Juvenile Court made no finding, nor is it alleged, that DCS
was excused from providing reasonable efforts because the children would be exposed to a risk of
substantial harm if they were reunited with Mother. This conclusion is supported by the express
2
W e went on to add that DCS “is not required to make reasonable efforts every time it removes a child. In
certain aggravated circumstances, such as severe child abuse, the Department is relieved of this duty. Tenn. Code Ann.
37-1-102, Tenn. Code Ann. 37-1-166(g)(4) and Tenn. Code Ann. 36-1-113(g)(7).” In re C. LaC. and D.L., 2004 Tenn.
App. LEXIS 172, at * 15 n.5. See also In Re C.M.M. & S.D.M., No. M2003-01122-COA-R3-PT, 2004 Tenn. App.
LEXIS 160, at * 28 n.26 (Tenn. Ct. App. Mar. 9, 2004), no appl. perm. appeal filed, (“Termination proceedings based
on the grounds in Tenn. Code Ann. § 36-1-113(g)(4) - (8) usually will not require the Department to demonstrate that
it has made reasonable efforts to reunite a child with his or her parents.”).
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finding of the Juvenile Court that “DCS case managers used reasonable efforts in assisting mother
in the reunification process until the time of the termination petition.”
In In Re C.M.M. & S.D.M., No. M2003-01122-COA-R3-PT, 2004 Tenn. App. LEXIS
160 (Tenn. Ct. App. Mar. 9, 2004), no appl. perm appeal filed, this Court noted that what constitutes
reasonable efforts will vary on a case-by-case basis, and courts should consider, among other things,
“(1) the reasons for separating the parent from his or her child or children, (2) the parent's physical
and mental abilities, (3) the resources available to the parent, (4) the parent's efforts to remedy the
conditions that required the separation, (5) the resources available to the Department, (6) the duration
of the parent's remedial efforts, and (7) the closeness of the fit between the conditions that led to the
initial separation, the requirements in the permanency plan, and the Department's efforts.” 2004
Tenn. App. LEXIS 160, at *26. We went on to add:
In many circumstances, the success of a parent's remedial
efforts is intertwined with the efforts of the Department's staff to
provide assistance and support. State Dep't of Children's Servs. v.
Demarr, 2003 Tenn. App. LEXIS 569, 2003 WL 21946726, at *10.
Reasonable efforts entail more than simply providing parents with a
list of service providers and sending them on their way. The
Department's employees must use their superior insight and training
to assist parents with the problems the Department has identified in
the permanency plan, whether the parents ask for assistance or not.
In re D.V.V., 2002 Tenn. App. LEXIS 126, 2002 WL 225891, at *8.
However, the remedial responsibility does not rest solely on the
Department's shoulders. Parents must also make reasonable efforts to
rehabilitate themselves and to remedy the conditions that required
them to be separated from their children. In re R.C.V., 2002 Tenn.
App. LEXIS 811, 2002 WL 31730899, at *12.
In Re C.M.M. & S.D.M., 2004 Tenn. App. LEXIS 160, at ** 27-28.
Before we discuss the remaining grounds for termination of Mother’s parental rights,
we will review the trial testimony and other evidence contained in the record regarding the
reasonable efforts provided by DCS case managers. Carol Maxey, a former DCS employee, testified
at trial that she left the employment of DCS in December of 2000. Maxey testified she developed
a permanency plan on Mother’s behalf and went over that plan in detail with Mother.3 Maxey stated
that she informed Mother that she would have to undergo mental health counseling and that she (i.e.,
Maxey) made appointments for Mother. By the time of trial Maxey had not seen Mother’s file in
three and one-half years and did not have access to any documentation she may have prepared while
3
It is unclear whether the permanency plan developed by Maxey followed the first or second petition for
temporary custody filed by DCS. The permanency plan referenced by the Juvenile Court in the final judgment was
developed well over a year after Maxey left the employ of DCS.
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assisting Mother. According to Maxey, this information would be contained in the DCS file. None
of this information is in the record on appeal.
Leanne Holcomb (“Holcomb”) was the DCS case manager for Mother and her
children from May 1, 2002, until May 12, 2003. Holcomb testified she made several appointments
for counseling on Mother’s behalf and went over the terms of the permanency plan with Mother.
Holcomb testified she discussed the housing situation with Mother. When asked if she discussed
a time table for Mother to complete the necessary changes to her housing situation, Holcomb stated
it needed to be done as soon as possible, but “that was kind of after the fact to me when I got the case
because the Judge had already given the May 27th, 2002 deadline so really they were past the
deadline.” Holcomb testified she discussed with Mother what needed to be done concerning her
case, but she never sent Mother any correspondence explaining in writing what needed to be done.
When questioned further about what reasonable efforts she made to assist Mother in obtaining
suitable housing for the children, Holcomb stated:
At the point when I got the case the kids had been in custody
for five years and when I got the case we were already at the point of
termination, so I feel like the Department did make reasonable efforts
to try to help this family and help her. There’s only so much we can
do.… I can guide her and give her instruction on what she needs to
do, but I don’t hold her hand to have her do it.
***
At the time that I got the case I was instructed by Mr. Eidson
to proceed with termination; that we would still focus on the
Permanency Plan that was there, but to go ahead and proceed with the
termination which is what I did. I continued to have the visits with
[Mother], did the home visits, tried to help them get the testing done
that needed to be done.
Jalana Clingan (“Clingan”) was the DCS case manager assigned to this case following
Holcomb’s departure. When Clingan was assigned this case in June of 2003, the petition to
terminate Mother’s parental rights already had been filed. When Clingan was asked what reasonable
efforts she made to reunite Mother and the four children, Clingan testified she supervised the hourly
visits between Mother and the children. The following discussion than occurred between Clingan
and the guardian ad litem:
Q. Okay. And you testified earlier that you really haven’t made
any efforts for reunification?
A. No.
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Q. And will you explain to the Court why that is?
A. It was my understanding that she had until May 27th of 2002
to complete the, her goals on the Perm Plan. So when I got the case
I was just waiting on termination, the termination date.
Q. So are you saying that it’s departmental policy that after that
time period has lapsed that you don’t have to make any efforts
whatsoever towards reunification after that time has lapsed?
A. No.
In summary, there is the testimony of Maxey who developed a permanency plan and
made one or more appointments for Mother. This covers the time from when the children came into
DCS custody up until December of 2000. There was no testimony or other evidence in the record
regarding any reasonable efforts made by DCS from December of 2000 until Holcomb was assigned
to the case in May of 2002. By that time, however, it was a fait accompli that DCS was going to
seek to terminate Mother’s parental rights and this clearly impacted the efforts made by Holcomb
to assist Mother. It is for this very same reason that the next case worker, Clingan, admittedly made
very little, if any, reasonable effort to assist Mother. In all fairness, we expect that DCS may have
made other reasonable efforts to assist Mother in the reunification process. The problem again falls
back to the inadequacy of the record on appeal. Were we to have the permanency plans and at least
some of the DCS case file in the record, or testimony from the case manager assigned to the file after
Maxey and before Holcomb, it certainly is possible that we would conclude that the evidence was
clear and convincing that reasonable efforts had been made by DCS. However, this evidence is
missing, and we refuse simply to assume reasonable efforts were taken by DCS on Mother’s behalf
when such a fundamental right is at stake.
We acknowledge that Tenn. Code Ann. § 37-1-166(g)(6) specifically provides that
reasonable efforts to place a child for adoption can be made concurrently with reasonable efforts to
make it possible for a child to safely return home. We do not interpret this statutory section to mean
that reasonable efforts to return the child safely home need no longer be made once DCS makes the
decision that it will proceed with termination proceedings at some point in the future. This duality
behind the need for making reasonable efforts may account, at least in part, for Holcomb’s and
Clingan’s admittedly lackluster efforts following the expiration of Mother’s May 27, 2002 deadline.
However, this also makes the need for testimony or other proof of reasonable efforts made by
Mother’s prior case managers even more necessary.
Having an adequate record on appeal is critical to this Court to enable it to review the
judgment of the lower court, and is even more crucial when fundamental constitutional rights are at
stake. Due to the unfortunate state of the record in the present case, we have in large part been
precluded from effectively reviewing the judgment of the Juvenile Court. There is insufficient
evidence before us to conclude that DCS proved by clear and convincing evidence that reasonable
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efforts were made by DCS to assist Mother to reunite with her children. Accordingly, the judgment
of the Juvenile Court is reversed and the remaining issues are pretermitted. On remand, DCS is
instructed to develop a new permanency plan consistent with the children’s and Mother’s current
situation.
Conclusion
The judgment of the Juvenile Court is reversed, and this cause is remanded to the
Juvenile Court for further proceedings as may be necessary, if any, consistent with this Opinion and
for collection of the costs below. Costs on appeal are assessed against the Appellee State of
Tennessee, Department of Children’s Services.
____________________________________
D. MICHAEL SWINEY, JUDGE
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