State of Tennessee Department of Children's Services v. Anna Patricia Malone -Concurring ( 1998 )

IN THE COURT OF APPEALS OF TENNESSEE
STATE OF TENNESSEE )
FILED
C/A NO. 03A01-9706-JV-00224
DEPARTMENT OF CHILDREN’S SERVICES, ) February 5, 1998
)
Petitioner-Appellee, )
Cecil Crowson, Jr.
)
Appellate C ourt Clerk
)
v. )
)
) APPEAL AS OF RIGHT FROM THE
) HAMILTON COUNTY JUVENILE COURT
ANNA PATRICIA MALONE, )
)
Respondent-Appellant. )
)
)
)
IN THE MATTER OF: )
WILLARD FILLMORE REDNOWER ) HONORABLE SUZANNE BAILEY,
JESSIE MAE REDNOWER ) JUDGE
For Appellant For Appellee
DOROTHY M. RAY JOHN KNOX WALKUP
Buck & Ray, PLLC Attorney General & Reporter
Chattanooga, Tennessee
DOUGLAS EARL DIMOND
Assistant Attorney General
General Civil Division
Nashville, Tennessee
O P I N IO N
AFFIRMED AND REMANDED Susano, J.
1
The trial court’s judgment terminated the parental rights
of Anna Patricia Malone (“Mother”) in and to her children, Willard
Fillmore Rednower (DOB: October 1, 1983) and Jessie Mae Rednower
(DOB: September 15, 1985).1 She appealed, arguing, in her words,
that the Department of Children’s Services (“DCS”) “failed to make
reasonable efforts to reunite the family as required by T.C.A. [§]
37-1-166"; that the court erred in finding clear and convincing
evidence of Mother’s “substantial noncompliance” with a plan of
care formulated by DCS pursuant to T.C.A. § 37-2-403; and that the
court erred in finding clear and convincing evidence of a basis for
terminating Mother’s parental rights under T.C.A. § 37-1-147.2
Following a bench trial, the court entered a judgment
finding clear and convincing evidence to support its conclusion
that termination of Mother’s parental rights was justified under
two of the bases for termination set forth in the Code: T.C.A. §
36-1-113(g)(2) and T.C.A. § 36-1-113(g)(3)(A)(i)-(iii).3 In this
1
The parental rights of the children’s father, Paul Rednower, were
terminated in 1993. There was no appeal from that earlier judgment.
2
While the appellant refers to this code section, it is clear from her
brief that she is actually relying on the provisions of T.C.A. § 36-1-113.
These provisions were formerly found at T.C.A. § 37-1-147.
3
The pertinent provisions of T.C.A. § 36-1-113 are as follows:
(g) Termination of parental or guardianship rights may
be based upon any of the following grounds:
* * *
(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
2
non-jury case, our review is de novo upon the record of the
proceedings below; but the record comes to us with a presumption of
correctness as to the factual findings that we must honor “unless
the preponderance of the evidence is otherwise.” Rule 13(d),
T.R.A.P. “The scope of review for questions of law is de novo upon
the record of the [trial court] with no presumption of
correctness.” Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn.
1997).
While it is clear that a parent has a fundamental right
to the care, custody and control of his or her child, see Stanley
v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972), it
is likewise clear that this right is not absolute. It may be
terminated if there is clear and convincing evidence justifying
such termination under the applicable statute. Santosky v. Kramer,
455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).
Mother first argues, in the words of the pertinent
statute, that DCS did not make reasonable efforts to “[m]ake it
possible for the child to return home.” She relies on T.C.A. § 37-
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 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 stable and
permanent home.
3
1-166.4 We disagree with Mother’s characterization of the facts in
this case.
On the issue of “reasonable efforts” by DCS, the State of
Tennessee, through the Office of the Attorney General, relies on a
code provision, which, we believe, is more relevant to the issue at
hand. As pertinent here, T.C.A. § 36-1-113(h) provides as follows:
In determining whether termination of parental
or guardianship rights is in the best interest
of the child pursuant to this part, the court
shall consider, but is not limited to, the
following:
* * *
(2) Whether the parent or guardian has failed
to effect a lasting adjustment after reasonable
efforts by available social services agencies
for such duration of time that lasting
adjustment does not reasonably appear possible;
The children at issue have been away from Mother for over
eight years. The record is replete with efforts by DCS during that
period, both in Marion County and in Hamilton County, to improve
Mother’s parenting skills and her circumstances in order to
facilitate the safe return of the children to her. Mother argues
4
T.C.A. § 37-1-166 provides, in pertinent part, as follows:
(a) At any proceeding of a juvenile court, prior to
ordering a child committed to or retained within the
custody of the department of children’s services, the
court shall first determine whether reasonable efforts
have been made to:
* * *
(2) Make it possible for the child to return home.
(b) Whenever a juvenile court is making the
determination required by subsection (a), the
department has the burden of demonstrating that
reasonable efforts have been made to prevent the need
for removal of the child or to make it possible for
the child to return home.
4
that DCS could have done more to reunite these children with their
mother. This is no doubt true; but this is not the criteria. The
statute does not require a herculean effort on the part of DCS.
What is required is that the State make “reasonable efforts.” The
evidence does not preponderate against a finding that DCS has met
its obligation under T.C.A. § 36-1-113(h)(2).
Mother next argues that the record fails to support the
trial court’s finding, by clear and convincing evidence, that she
failed to substantially comply with a plan of care. Again, we
disagree. The evidence reflects that Charlene Whittenburg of DCS
wrote to Mother in September, 1995, advising her to attend
parenting classes as required by the plan of care, a copy of which
was transmitted to her with that correspondence. The letter was
sent by certified mail; its receipt was acknowledged by the
signature of Mother’s live-in boyfriend, William Eller. It is
clear that Mother failed to attend these classes. There is
evidence that Mother said she did not want to attend these classes
until she received her income tax return and bought a car. The
evidence does not preponderate against the trial court’s factual
findings supporting a conclusion, by clear and convincing evidence,
that Mother failed to substantially comply with the plan of care.
The proof clearly supports the trial court’s conclusion that Mother
was aware that she was required to attend parenting classes, but
failed to do so. Termination was justified under T.C.A. § 36-1-
113(g)(2). Mother’s second issue is found to be without merit.
5
Finally, Mother contends that termination is not
justified under T.C.A. § 36-1-113(g)(3)(A)(i)-(iii). We cannot
agree.
DCS took these children into its custody on July 13,
1988. They were originally removed from parental custody because
they had been subjected to acts of physical and sexual abuse. At
the time of the hearing below, Mother was living with a man who had
been accused of sexually abusing Natasha, Mother’s third child --
an allegation that DCS concluded was true, following an internal
review. We find that termination was justified under T.C.A. § 36-
1-113(g)(3)(A)(i)-(iii). We find this by clear and convincing
evidence. Furthermore, the record reflects, again by clear and
convincing evidence, that termination is in the best interest of
these children. See T.C.A. § 36-1-113(c)(2).
The judgment of the trial court is affirmed. This case
is remanded to the trial court for such further proceedings as may
be necessary, consistent with this opinion. Costs on appeal are
taxed to the appellant.
__________________________
Charles D. Susano, Jr., J.
CONCUR:
________________________
Houston M. Goddard, P.J.
________________________
William H. Inman, Sr.J.
6