In the Matter of: A.W. & J.W. ( 2002 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 30, 2002
IN THE MATTER OF: A.W. AND J.W., CHILDREN UNDER
EIGHTEEN (18) YEARS OF AGE
Appeal from the Juvenile Court for Wilson County
No. 260 & 261 Barry Tatum, Judge
No. M2002-01665-COA-R3-JV - Filed February 11, 2003
The Juvenile Court of Wilson County terminated the parental rights of both parents to two young
daughters. The mother appeals, asserting that the court erred in finding: (1) that the Department of
Children’s Services made reasonable efforts to reunite the family, (2) that she failed to substantially
comply with the goals in the permanency plans, (3) that she failed to remedy the conditions that
prevented the children’s return to her, and (4) that the best interests of the children required the
termination of her parental rights. We affirm the judgment of the juvenile court.
Tenn. R. App. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed and Remanded
BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which WILLIAM C. KOCH , JR.
and WILLIAM B. CAIN , JJ., joined.
Debra L. Dishmon, Lebanon, Tennessee, for the appellant, T.W.
Paul G. Summers, Attorney General and Reporter; Elizabeth C. Driver, Assistant Attorney General,
for the appellee, Tennessee Department of Children’s Services.
OPINION
I.
The mother of A.W. and J.W. has a long history of mental illness and she and her husband
lived a stormy life. In August of 1999 the mother was hospitalized for severe depression and
psychotic features. The Department of Children’s Services (“DCS”) took custody of the children
and found that their home was extremely dirty and unsuitable for the children. The hospital released
the mother with a “guarded” prognosis after she was diagnosed with “Bipolar disorder, depressed,
severe, recurrent, with psychotic features.” The father’s whereabouts were unknown at that time.
DCS developed a permanency plan for each child to be reunited with her mother. The
mother agreed to several conditions in the plan, including taking her prescribed medications, taking
parenting classes, maintaining a clean, stable home, and maintaining an adequate food supply.
Despite signing on to the reunification plan, the mother refused to acknowledge that she was
ill and she refused to take her prescribed medications until shortly before the termination hearing.
She was hospitalized involuntarily from January 26, 2000 through February 2, 2000. Her discharge
summary identified a diagnosis of bi-polar disorder (severe) with a history of non-compliance with
medications. The summary also revealed that her refusal to take her medication was under her belief
that God had directed her not to do so.
The children bounced around in foster care, sometimes with relatives, but never in any one
place for as long as a year. From July 2000 until the Spring of 2001 they lived with their half-sister
under an order from the court. When the half-sister became ill she allowed the children to live with
their mother for a month, but eventually concluded that that arrangement was not safe for the
children. Consequently, the half-sister returned the children to DCS and they were placed in another
foster home.
At a review hearing in September of 2001 the mother stated in open court that she would not
take her medication because she did not need it. At that point the court directed DCS to file a
parental termination petition as to both parents. In October of 2001, the Foster Care Review Board
recommended proceeding with the termination hearing. DCS filed the petition on October 29, 2001
and only then, apparently, did the mother begin taking her medication. After the hearing the court
made the following findings of fact:
• Mrs. [W.]’s Bi-polar condition is treatable with psychotropic medication.
• Since beginning a regimen of psychotropic medications in late October 2001
or early November 2001, Mrs. [W.]’s mental state has improved dramatically.
• At the time of the termination hearing, Mrs. [W.] testified that she is back to
about 60% of normal. Much of this progress has occurred since early
December 2001.
....
• Mrs. [W.] admits not realizing she was ill but attributed her condition to the
stress placed on her by her husband, the girls’ father.
• Mother admits talking to the girls about fasting as a profession of faith to
God.
• Mrs. [W.] denies requiring the girls fast. Mrs. [W.] states that the girls
“chose to fast”.
• Mrs. [W.] at one point during her illness informally gave her girl’s [sic] new
names, “Soulful” and “Everessence” at the direction of God whose voice she
had heard.
....
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• Mrs. [W.] admits drinking alcohol to help her sleep even recently since taking
the psychotropic medication.
• Mrs. [W.] admits consuming alcohol to help her sleep as recently as two
nights prior to the termination of parental rights hearing.
....
• Mrs. [W.] admits that she is not cured and is still recovering at this
point.
• Mrs. [W.] states she will take medication if that is what she has to do to keep
[the] girls.
....
• Office notes from Mrs. [W.]’s therapist reflect that Mrs. [W.] prefers
isolating herself in her home.
• Office notes from Mrs. [W.]’s therapist reflect that Mrs. [W] [has been]
taking medication because this Court gave her an ultimatum, not because she
was convinced she was mentally ill.
....
• Mrs. [W.]’s therapist states that Mrs. [W.] is still gradually accepting [the]
fact that she has mental illness of Bi-polar. The therapist acknowledges Mrs.
[W.] has still not fully accepted the diagnosis.
• Mrs. [W.]’s therapist confirms that Mrs. [W] or anyone on the medication she
is taking should [n]ever drink alcohol.
....
• Dr. Sandy Phillips, Licensed Clinical psychologist, testified by evidentiary
deposition on February 12, 2002. Dr. Phillips testified that Mrs. [W.] suffers
from a chronic and severe mental illness. Dr. Phillips reports that Mrs. [W.]
first saw a psychiatrist on October 24th, 2001. Dr. Phillips would not want
anyone raising a child who is as severely ill as Mrs. [W.] unless that person
was on medication. Dr. Phillips testified that Mrs. [W.]’s desire to continue
taking medication is tied to her parental rights. Dr. Philips believes the best
assurance that Mrs. [W.] will continue taking these medications would be to
tie the custody to the compliance with medication. Per Dr. Phillips, Mrs.
[W.] was aware that “they” wanted her to take the medication. Mrs. [W.] did
not deem it necessary, as she did not view herself as ill. Dr. Phillips opines
that alcohol consumption while taking this psychotropic medication is not
advisable.
The court concluded that grounds existed for the termination of Mrs. W.’s parental rights and
that the termination would be in the children’s best interests.
II.
THE APPLICABLE LAW
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Parents have a fundamental right to the care, custody and control of their children. Stanley
v. Illinois, 405 U.S. 645, 651 (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. Santosky v. Kramer, 455 U.S. 745, 748 (1982); In re: Drinnon, 776 S.W.2d 96, 97 (Tenn.
Ct. App. 1988); Tennessee Department of Human Services v. Riley, 689 S.W.2d 164, 165 (Tenn. Ct.
App. 1984). In addition, all issues are premised on the foundation of “what is in the best interest of
the child.” Riley, 689 S.W.2d at 169.
In order to balance the rights of parents, and the best interests of children, the legislature has
provided that parental rights may only be terminated for certain well-defined grounds. See Tenn.
Code Ann. § 36-1-113(g). Two of those grounds are:
(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.
The legislature requires that the grounds must be shown by clear and convincing evidence,
Tenn. Code Ann. § 36-1-113(c)(1), and in addition that clear and convincing evidence must show
that the termination is in the best interests of the child. Tenn. Code Ann. § 36-1-113(c)(2).
III.
DID DCS PROVIDE REASONABLE SERVICES TO THE MOTHER ?
The mother complains on appeal that DCS did not make reasonable efforts to help her make
the changes in her circumstances that would allow the children to be returned to her. She cites Tenn.
Code Ann. § 37-1-166(a), a code section dealing with foster care, that provides:
(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
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first determine whether reasonable efforts have been made to:
(1) Prevent the need for removal of the child from such child's family; or
(2) Make it possible for the child to return home.
But as this court has noted a more pertinent statute is found in Tenn. Code Ann. § 36-1-113(i):
(i) 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;
See Department of Children’s Servs. v. Malone, No. 03A01-9706-JV-00224, slip op. p. 1 (Tenn. Ct.
App. Feb. 5, 1998)(quoting Tenn. Code Ann. § 36-1-113(h) which is now found at Tenn. Code Ann.
§ 36-1-113(i)).
We think the mother’s argument misses the point. Of all the conditions existing in the home
at the time the children were removed all but one had been substantially corrected with the help
given her. The one remaining condition was the mother’s mental illness that disabled her and made
her home an unsafe place for her children. As unfortunate as her condition is, it can be treated with
medication; but until she finally faced a termination petition, the mother steadfastly refused to honor
her promise to take her medication. We are unsure what additional services short of confinement,
DCS could have supplied that would have helped the mother take her medication. She has not
suggested any. Therefore, we do not think DCS failed to make reasonable efforts to help the mother
make the “lasting adjustment” that is required to avoid the termination of her parental rights.
IV.
IS THE EVIDENCE CLEAR AND CONVINCING THAT THE MOTHER
FAILED TO COMPLY W ITH THE PERMANENCY PLANS?
There can be no doubt that the mother failed to take her medication, perhaps the key to the
whole ocean of troubles that led to the removal of her children from her care. As late as September
28, 2001, the mother stated in open court that she did not need and would not take the medication
prescribed for her mental illness.
Her answer to this irrefutable finding by the trial judge is twofold. First, she argues that the
permanency plans are nullities because they were not approved by the court in a timely fashion.
Tenn. Code Ann. § 37-2-403 directs the juvenile court to ratify a permanency plan within sixty days
if a child is placed in foster care. The court in this case did not meet that deadline, but as we have
said in prior cases, these requirements are directory and not mandatory. See In re: T.F., No. W2001-
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01935-COA-R3-JV, slip op. at 7-8 (Tenn. Ct. App. Feb. 19, 2002). The mother does not argue that
she was unaware of the conditions placed on her or that she thought the plans had lapsed. She was
at all pertinent times represented by counsel, and she did not object to the continuing applicability
of the plans. Therefore, we do not think she can escape the conditions placed on her on this basis.
Secondly, the mother argues that by the time of the trial she had substantially complied with
all the requirements of the plans. The court acknowledged that since she began taking her
medication she had returned to about sixty percent of normal. The court called this a “dramatic
improvement.” But the court also concluded that the improvement came “Too little, too late.”
As to the “too little” conclusion, we concur. The mother is not well. Her therapist testified
that the mother is only gradually accepting the fact that she is mentally ill, and that she began taking
her medication because the court gave her an ultimatum, not because she believed she needed it. The
therapist also testified that consuming alcohol along with psychotropic medicines is not advisable.
Therefore, returning the children to the mother’s custody could not be ordered at this time, and there
is no way to predict that the mother will ever fully accept the fact that she needs to take the
responsibility for herself and her children.
As to the “too late” conclusion, we also concur. In State v. Pruitt, No. M2000-00416-COA-
R3-CV (Tenn. Ct. App. June 27, 2000), we were confronted with a mother who refused to take her
medication until two months before the trial. Although the medication helped her mental condition,
the court held that nothing in the statutes or the common law required the court to defer a decision
so that the mother could have more time to demonstrate that her improvement was permanent. The
child in that case had spent the most recent year and a half in foster care. In all, he had spent over
half of his life in and out of foster care. In this case the children stayed in foster care a little over two
years before the court, on hearing the mother say another time that she would not take her medicine,
directed DCS to file the termination petition. We think the court gave the mother an adequate
chance to comply with the permanency plans.
V.
IS THE CONCLUSION THAT TERMINATION IS IN THE BEST INTERESTS OF THE
CHILDREN SUPPORTED BY CLEAR AND CONVINCING EVIDENCE?
Some of the factors to be considered in determining if termination of a parent’s rights is in
the child’s best interests are found in Tenn. Code Ann. § 36-1-113(i):
(1) Whether the parent or guardian has made such an adjustment of circumstance,
conduct, or conditions as to make it safe and in the child's best interest to be in the
home of the parent or guardian;
(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;
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(3) Whether the parent or guardian has maintained regular visitation or other contact
with the child;
(4) Whether a meaningful relationship has otherwise been established between the
parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to have on
the child's emotional, psychological and medical condition;
....
(7) Whether the physical environment of the parent's or guardian's home is healthy
and safe, whether there is criminal activity in the home, or whether there is such use
of alcohol or controlled substances as may render the parent or guardian consistently
unable to care for the child in a safe and stable manner;
(8) Whether the parent's or guardian's mental and/or emotional status would be
detrimental to the child or prevent the parent or guardian from effectively providing
safe and stable care and supervision for the child;
In this case the trial judge found the following:
I find the girls’ reference to Mrs. [W.] as “[T.]” significant. This implies the
relationship that exists is not necessarily a maternal relationship but is one of mere
friendship. Dr. Phillips even testified that an assessment of Mrs. [W.]’s parenting
skills today is not feasible. Mrs. [W.] has had actual physical custody of these girls
for only a few weeks in the past two and one half years. Dr. Phillips opines that there
is no accurate way to fully assess a parent’s skill when that person has not been
capable of being a parent for essentially a two year period.
On the other hand, the record is clear that Mrs. [W.] has had over two and
one-half years to effect a lasting change in her life through mental health treatment
and medication. Mrs. [W.] has wasted that opportunity. Only now in the past few
weeks has she even begun to do what she was directed to do in September 1999....
....
These girls have had eight different homes since August 1999 according to
Mrs. Smith, the foster parent. According to Mrs. Smith after the February birthday
visit, [A.] cried for days saying over and over again “too many homes”. A. has
expressed dismay and frustration with her extended family for not taking them in so
they can continue seeing their mother.
In my view, these children need a break. They have been bounced from one
home to another and have suffered enough. Their Mother has had ample time to get
her illness under control and wasted that opportunity. Even now, if Mrs. [W.] were
given another six months to demonstrate she can maintain her treatment and
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medication, these girls would still be facing a transition period back to their Mother
that is subject to failure at any time.
These girls need and deserve the stability, security and continuity that an
adoptive home can provide.
Accordingly, I find by clear and convincing proof that the best interest of
these girls requires that all of the parental rights of Respondents to these children be
forever terminated, and that the complete custody, control and guardianship of
[A.W.] and [J.W.], be awarded to the State of Tennessee, Department of Children’s
Services, with the right to place them for adoption and to consent to such adoption
in loco parentis.
We think the findings of the trial judge – which are not refuted – are clear and convincing
proof that the best interests of these children will be served by terminating the mother’s parental
rights. Only then will they have a chance to escape the revolving door of foster care and to be placed
in a permanent and stable home.
We affirm the judgment of the court below and remand this cause to the Juvenile Court of
Wilson County for any further proceedings necessary. Tax the costs on appeal to the appellant, T.W.
_________________________________________
BEN H. CANTRELL, PRESIDING JUDGE, M.S.
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