In Re: S.J.W. ( 2014 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 15, 2013
IN RE S.J.W. ET AL.
Appeal from the Juvenile Court for Sullivan County
No. J 37860 Mark H. Toohey, Judge
No. E2013-00351-COA-R3-PT-FILED-JANUARY 28, 2014
T.R.D. (“Mother”) and S.M.W. (“Father”) appeal the termination of their rights to four minor
children, S.J.W., B.H.D., J.E.W., and J.C.D. (“the Children”). The Department of Children’s
Services (“DCS”) had been involved with the family since 2006. DCS received multiple
referrals regarding environmental neglect and lack of proper care of the Children. DCS made
efforts to assist the parents in providing the Children with suitable housing and basic physical
and medical care. In August 2010, DCS received another referral alleging environmental,
medical, and nutritional neglect. New services were provided without substantial
improvement. In October 2010, the Children were removed from the parents’ home and
taken into temporary, protective custody. The following month, they were adjudicated
dependent and neglected and placed in foster care. A year later, DCS filed a petition to
terminate the parents’ rights. Following a bench trial, the court found, by clear and
convincing evidence, that multiple grounds for termination exist as to both parents and that
termination is in the Children’s best interest. Both Mother and Father appeal. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded
C HARLES D. S USANO, J R.,P.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.
Randall D. Fleming, Kingsport, Tennessee, for the appellant, T.R.D.
Nicholas A. Schaefer, Kingsport, Tennessee, for the appellant, S.M.W.
Robert E. Cooper, Jr., Attorney General and Reporter and Mary Byrd Ferrara, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.
Daniel J. Cantwell, Kingsport, Tennessee, Guardian ad litem.
OPINION
I.
Mother and Father were not yet married when the Children were born over a four-year
span from December 2005 to August 2009. The young parents, neither of whom completed
high school, struggled from the outset. They paid rent with the social security disability
checks their oldest son received after he was diagnosed with leukemia. DCS’s involvement
with the family began when he was six months old. In March 2006, DCS received a referral
regarding concerns of environmental neglect and lack of proper supervision and care of the
minor children. Over the next three years, there were nine referrals, all focused on the
Children’s living conditions and their care and supervision. Early on, DCS referred the
family for numerous services and provided resources and other assistance, as did community
organizations, in an effort to assist Mother and Father toward the goal of providing
appropriate housing and care for the Children. In addition to DCS’s direct involvement, it
referred services including a HUGS1 nurse to the home since 2007; Tennessee Early
Intervention Services which provided physical, speech, and developmental therapy,
occupational services, and advanced home care in the home since 2007; and Palmer Center
which transported the two oldest children to its school where their efforts focused on
development of fine motor skills, speech, and communication. In addition, DCS linked the
family with multiple community resources and organizations in an effort to obtain housing
after the family was evicted from public housing in 2009. After the first two children were
born, Mother initially worked at a fast-food restaurant but had difficulty maintaining a job
as she was largely left to care for the Children on her own. Mother believed it was a
mother’s role to stay home and care for her children, but did not feel Father made much
effort to find a job and support the family. For his part, Father was often absent from the
home and in and out of jail. When he was present, case workers described him as being
“okay” at times, while, at other times, hostile and in denial that there were any issues in the
home. In 2009, the family was evicted from public housing because of their failure to pay
rent. In 2010, a local church sponsored them and provided various items they needed as well
as an apartment. When the family secured suitable housing – a primary area of concern –
DCS closed their file.
1
H.U.G.S. stands for “Help Us Grow Successfully.” It is a state program provided to families
through county health departments pursuant to which nurses visit families and provide assistance in their
homes to keep children on track in their development.
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In August 2010, DCS returned to the family’s home on another referral alleging
environmental, medical and nutritional neglect. Case workers observed a filthy, odorous
home in “disarray” – the Children, in heavily soiled diapers, played and ate food off of the
feces-stained carpet, dogs and cats were running about, and a litter pan sat on the dining
table. The Children, then ranging in age from one to five, were not potty-trained. All were
developmentally delayed, and the youngest, an infant, was diagnosed with failure to thrive.
The oldest had leukemia that was in remission, but required monitoring. The Children could
not speak discernable English and appeared to have developed their own way of
communicating with each other. In addition to the multiple services already working with
the family, the case manager referred Solutions Sources and two workers to provide in-home
assistance with homemaking skills in a “last-ditch” effort to keep the Children at home with
Mother and Father. No notable progress was made.
In October 2010, the Children were placed in the protective custody of DCS. In
November 2010, they were adjudicated dependent and neglected and entered foster care.
Following the Children’s removal, Mother and Father stopped receiving government
assistance and benefits for the Children. As a result, they were unable to pay rent, lost their
apartment, and essentially became homeless.
DCS created a family permanency plan with both parents’ input. The primary tasks
assigned to Mother and Father were to obtain safe, stable housing and stable employment or
other legal sources of income to support the Children. As time passed, maintaining contact
and communication with DCS also became an issue. After the Children were removed,
Mother and Father remained unemployed and continued their lifestyle of moving from one
motel or boarding house to another. Because they owed substantial past-due rent, they were
not eligible for public housing in the Kingsport area. In January 2011, they lived at the West
Side Inn. In June 2011, they moved to the Model City Motel. Two months later, they lived
in a “tourist” boarding home. In August 2011, they moved to Morristown where, with the
help of a local church, they moved into an apartment and Father obtained work with a roofing
company. He quit after some two months to return to Kingsport to face pending criminal
charges. Since then, neither parent was employed, but both hoped to secure disability
benefits. Father continued to incur new criminal charges and spend short stints in jail.
Over a year later, in December 2011, DCS filed a petition to terminate the parents’
rights. In January 2012, Mother and Father got married. Mother indicated the primary
reason she married Father was to secure help from churches and other religious organizations
that did not provide housing assistance to unmarried couples.
The termination hearing took place over three days during September, October, and
November 2012. By then, Father had been incarcerated for nearly eight months. A few days
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before trial, Mother moved into a friend’s apartment. She remained unemployed. The
Children remained in foster care but had been separated into two different foster homes – the
older boys lived in Rogersville and the younger two in Greeneville – after foster parents were
unable to manage all four boys together. Upon first coming into DCS custody, the Children
were severely developmentally delayed, had speech deficiencies, and required multiple
services and therapies. After a year in foster care, two no longer required special services,
while the youngest child was no longer considered “failure to thrive.”
At the conclusion of the trial, the court terminated both parents’ rights. In support of
its decision, the court found that clear and convincing evidence established the existence of
the following grounds for termination as to both: abandonment by non-support; abandonment
by failure to provide a suitable home; substantial non-compliance with the permanency plan;
and persistence of the conditions that led to the Children’s removal. Also by clear and
convincing evidence, the court found that termination was in the best interest of the Children.
Mother and Father, represented by separate counsel, each filed a timely appeal.
II.
Mother presents issues for our review that we restate as follows:
1. Whether there is clear and convincing evidence that Mother
abandoned the Children by failing to support them as a ground
for termination.
2. Whether there is clear and convincing evidence that Mother
abandoned the Children by failing to provide a suitable home for
them as a ground for termination.
3. Whether there is clear and convincing evidence that Mother
failed to comply substantially with the terms of a permanency
plan as a ground for termination.
4. Whether there is clear and convincing evidence of
persistence of conditions as a ground for termination.
5. Whether there is clear and convincing evidence that
termination of Mother’s rights is in the Children’s best interest.
Father raises additional issues:
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1. Whether Father’s failure to support the Children in the four
months preceding the filing of the termination petition was
willful.
2. Whether DCS utilized reasonable efforts to reunify Father
with the Children following their removal to DCS custody.
3. Whether termination of Father’s rights is in the Children’s
best interest.
III.
It is well established that parents have a fundamental right to the care, custody, and
control of their children. Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551
(1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988). While parental rights are
superior to the claims of other persons and the government, they are not absolute, and they
may be terminated upon appropriate statutory grounds. See Blair v. Badenhope, 77 S.W.3d
137, 141 (Tenn. 2002). A parent’s rights may be terminated only upon “(1) [a] finding by the
court by clear and convincing evidence that the grounds for termination of parental or
guardianship rights have been established; and (2) [t]hat termination of the parent’s or
guardian’s rights is in the best interests of the child.” T.C.A. § 36-1-113(c) (Supp. 2013); In
re F.R.R., III, 193 S.W.3d at 530. Both of these elements must be established by clear and
convincing evidence. See T.C.A. § 36-1-113(c)(1); In re Valentine, 79 S.W.3d 539, 546
(Tenn. 2002). Evidence satisfying the clear and convincing evidence standard establishes that
the truth of the facts asserted is highly probable, State v. Demarr, No.
M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App. M.S., filed August
13, 2003), and eliminates any serious or substantial doubt about the correctness of the
conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at 546; In re S.M., 149
S.W.3d 632, 639 (Tenn. Ct. App. 2004).
In cases involving termination of parental rights, we employ the following standard
of review:
[T]his Court’s duty. . . is to determine whether the trial court’s
findings, made under a clear and convincing standard, are
supported by a preponderance of the evidence.
In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The trial court’s findings of fact are
reviewed de novo upon the record accompanied by a presumption of correctness unless the
preponderance of the evidence is otherwise. Id.; Tenn. R. App. P. 13(d). In weighing the
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preponderance of the evidence, great weight is accorded to the trial court’s determinations
regarding witness credibility, which shall not be reversed absent clear and convincing
evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). Questions
of law are reviewed de novo with no presumption of correctness. Langschmidt v.
Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).
IV.
Both parents challenge the trial court’s finding that they abandoned the Children by
failing to support them. Mother and Father concede that they have never paid child support
for the Children. Mother suggests, however, that her failure to pay was not willful
considering her limited resources. Father also contends that his admitted failure to support
the Children was not willful given his lack of ability to maintain employment. Both point
out that in May 2011, the child support referee ordered them to pay nothing pending a
showing of medical proof to support their disability claims.
As relevant in this case, Tenn. Code Ann. § 36-1-113(g)(2) provides:
(g) Initiation of termination of parental or guardianship rights
may be based upon any of the grounds listed in this subsection
(g). The following grounds are cumulative and non-exclusive,
so that listing conditions, acts or omissions in one ground does
not prevent them from coming within another ground:
(1) Abandonment by the parent or guardian, as defined in §
36-1-102, has occurred;
In turn, Tenn. Code Ann. § 36-1-102(1)(A)(I) (2010) defines “abandonment,” in
relevant part, as follows:
For a period of four (4) consecutive months immediately
preceding the filing of a proceeding or pleading to terminate the
parental rights of the parent(s) or guardian(s) of the child who
is the subject of the petition for termination of parental rights or
adoption, that the parent(s) or guardian(s) either have willfully
failed to visit or have willfully failed to support or have willfully
failed to make reasonable payments toward the support of the
child;
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As to Father, who was incarcerated for some seven weeks during the relevant four
months, the following definition of abandonment in Tenn. Code Ann. § 36-1-102 (1)(A)(iv)
applies:
A parent or guardian is incarcerated at the time of the institution
of an action or proceeding to declare a child to be an abandoned
child, or the parent or guardian has been incarcerated during all
or part of the four (4) months immediately preceding the
institution of such action or proceeding, and either has willfully
failed to visit or has willfully failed to support or has willfully
failed to make reasonable payments toward the support of the
child for four (4) consecutive months immediately preceding
such parent’s or guardian’s incarceration. . . .
“ ‘[W]illfully failed to support’ or ‘willfully failed to make reasonable payments toward such
child’s support’ means the willful failure, for a period of four (4) consecutive months, to
provide monetary support or the willful failure to provide more than token payments toward
the support of the child.” Tenn. Code Ann. § 36-1-102(D) and (E). The relevant four-month
period immediately preceding the filing of the complaint in this case is August 11, 2011
through December 11, 2011.
This Court has elaborated on the element of willfulness in the context of termination
proceedings:
The concept of “willfulness” is at the core of the statutory
definition of abandonment. A parent cannot be found to have
abandoned a child under Tenn. Code Ann. § 36-1-102(1)(A)(i)
unless the parent has either “willfully” failed to visit or
“willfully” failed to support the child for a period of four
consecutive months.
* * *
In the statutes governing the termination of parental rights,
“willfulness” does not require the same standard of culpability
as is required by the penal code. Willful conduct consists of acts
or failures to act that are intentional or voluntary rather than
accidental or inadvertent. Conduct is “willful” if it is the
product of free will rather than coercion. Thus, a person acts
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“willfully” if he or she is a free agent, knows what he or she is
doing, and intends to do what he or she is doing.
Failure to visit or support a child is “willful” when a person is
aware of his or her duty to visit or support, has the capacity to
do so, makes no attempt to do so, and has no justifiable excuse
for not doing so.
In re Audrey S., 182 S.W.3d at 863-64 (internal citations omitted).
Returning to the case at bar, the trial court found that there was a willful failure to
support:
[Mother and Father] were summoned to Child Support Court in
regard to paying support for the . . . children. Both . . . stated .
. . that they were seeking disability, and therefore the Referee
did not order a support amount, but gave them time to produce
medical proof of their disabilities which they never did.
The Court takes notice that the question is not whether they
were ordered to pay support but rather were they able bodied
and able to work and support the children, and the Court finds
that [Mother and Father] were able bodied and able to work and
support the children and they willfully did not do so.
[Father] testified that he was able to work and failed to make
any child support payments because he had a problem with
marijuana; and that he had difficulty maintaining a job due to his
mental status.
* * *
[Mother and Father] were on notice of the consequences of their
failure to support the children as DCS made numerous
notifications verbally . . . and in writing. . . .
At this juncture, we note that Father has only appealed the finding of abandonment
by willful non-support. Therefore, he has implicitly conceded the existence of the other
grounds found by the trial court. We proceed mindful that only a single statutory ground
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must be clearly and convincingly established in order to justify a basis for termination. In re
Audrey S., 182 S.W.3d 838, 862 (Tenn. Ct. App. 2005).
At trial, it was undisputed that neither parent paid any child support, nor had they
provided non-monetary support, since the Children entered state custody some two years
earlier. The permanency plan set out the address where Mother and Father should send their
payments once an amount was ordered. In May 2011, the child support referee granted the
parents 60 days to provide evidence of disability, but they failed to do so. “The fact that the
parent was not under an order to pay support is not dispositive of the question of whether the
failure is willful; the obligation to pay support exists in the absence of a specific order.” In
re Mark A.L., No. M2013-00737-COA-R3-PT, 2013 WL 5536801 at *4 (Tenn. Ct. App.
M.S., filed Oct. 4, 2013)(citing Tenn. Dep’t of Children’s Servs. v. Culbertson, 152 S.W.3d
513, 523-24 (Tenn. Ct. App. 2004)). We recognize “a parent cannot be said to have
abandoned a child when his failure to support is due to circumstances outside his control.”
Id., (citing In re Adoption of Angela E., 402 S.W.3d at 640). In the present case, both
parents participated in the creation of the permanency plan which clearly contemplated child
support at an amount to be determined. Neither presented medical proof documenting their
disability. Neither obtained disability benefits. In our view, the parents’ failure to pay child
support under these circumstances is not attributable to any “circumstances outside [their]
control.”
Neither parent provided evidence of an inability to work. As to Mother, the trial court
was sympathetic to Mother’s earlier plight when she was unable to work while often caring
for the four young children by herself. The court observed, however, Mother had ample
opportunity after the Children were removed to address her circumstances, beginning with
her lack of income. Instead, at the time of trial nearly a year later, she remained unemployed
and presented no proof of her efforts to secure work. Instead, she was seemingly fixated
solely on her efforts to obtain social security disability benefits for a recently diagnosed
anxiety disorder. Mother held down jobs in the past and there was nothing to indicate that
she was unable to work in some capacity, particularly after the responsibility of caring for
the Children was left to someone else. During her relevant four-month period, Mother
obtained a job at Kentucky Fried Chicken but quit after just two days. Mother testified that
her physician had indicated she did not qualify for disability status, and her claim had been
denied and was pending appeal. Mother conceded she had recently been ordered to pay child
support of $150 per month but had paid nothing.
As to Father, he informed his case manager that he had quit as many as 25 jobs in the
past because he is nervous around other people. He admitted to panhandling and taking in
$20-40 a day. Father was incarcerated on a probation violation for a portion of the relevant
four-month period. Otherwise, he was admittedly employed by a roofing company in
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Morristown during the summer of 2011, but quit that job in order to return to Kingsport. He
left the job suddenly, without telling his employer, leaving little hope of regaining the job
once his legal matters were resolved. Father also worked for a short time at one or two fast-
food restaurants, but admitted he applied no part of his few paychecks toward child support.
He attributed his failure to support the Children to a “marijuana problem.”
In short, the proof shows that both parents were aware of their duty to support the
Children and capable of working, but expended little effort to find and maintain a job or
otherwise secure a legal source of income. On the record before us, we conclude that the
evidence does not preponderate against the trial court’s finding that Mother and Father
willfully failed to support the Children. The trial court did not err in terminating the parents’
rights on the ground of abandonment by failure to provide child support.
V.
The court further found that Mother failed to establish a suitable home for the
Children. In this regard, Tenn. Code Ann. § 36-1-102(1)(A)(ii) further defines abandonment
as a ground for termination:
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 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.
The trial court made the following pertinent findings:
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[A]t the time of removal the children were not in a suitable
home in that there were animals in the home, there was animal
feces in the home, the children were unable to communicate
using the English language and had developed their own
language, the children were developmentally delayed and were
not being taken to Head Start.
Mother was overwhelmed by the situation as . . . Father did not
assist her with the children, however, her efforts were not
sufficient given her abilities and . . . she refused services and
though she may have addressed one problem she let everything
else go and created a dangerous living environment for the
children . . . .
* * *
DCS made reasonable efforts before the removal and during the
time after removal to assist the parents in establishing a suitable
home, and [Mother and Father] failed to make any reasonable
efforts to establish a suitable home for the children[.] [T]hough
there is no evidence that [Mother] abused drugs neither she nor
[Father] have . . . secured a safe and stable home, [and] they
have failed to secure a legal source of income. . . .
[Mother’s] failure to make even minimal efforts to improve their
living situation and personal conditions demonstrates a lack of
concern for the children to such a degree that it appears unlikely
that [she] will be able to provide a suitable home for the children
at an early date.
The proof shows that DCS devoted considerable time, energy, attention, and resources
in helping Mother and Father obtain and maintain a suitable home since they first began
working with them more than four years before the Children were removed. As their case
manager explained, the efforts of DCS included an emphasis on both parents finding jobs
because they were not eligible for public housing and thus needed an income to pay for
housing. Also to that end, both Mother and Father were encouraged to apply for their GEDs,
but neither did. On questioning by the court, DCS conceded it could submit referrals to pay
past due rent but had not done so because Mother and Father owed the housing authority
some $1,200 – far above the $200 DCS could cover.
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In 2009, after being evicted from public housing, the family moved to Ballis Tourist
Home with help from the maternal grandmother. They lived together in one room. The case
manager reported cramped conditions, no stove, a non-working toilet, and roaches. The
parents did not actively cooperate with DCS’s efforts for them to enter “ARCH,” a homeless
shelter program, and they did not keep an appointment for housing assistance through
Interfaith Hospitality Network. Their case manager conceded that there were “not a lot of
options available to them in the area,” but noted that Mother and Father were opposed to
leaving Kingsport for Johnson City or another nearby town with more housing options.
After Mother and Father moved to a Microtel motel, DCS again closed the case.
Three days later, DCS received another referral for environmental neglect. Throughout this
time, DCS continued to provide in-home services, but Mother refused additional services that
DCS offered. In August 2010, the case manager connected Mother and Father with a church
that provided the family with an apartment, furnishings, and other assistance. The case
manager noted then that the Children were still in diapers and usually dirty or inappropriately
dressed. She observed them “grunting” rather than speaking and described their
circumstances as “very sad.” The case manager testified that DCS was then close to
removing the Children, but made every effort to keep the family together. Solutions Services
brought in two workers that taught homemaking and parenting skills. The case manager
personally visited the family after work several times a week because she worried about the
Children. All the while, Mother “over and over and over” denied she needed any more help.
The family seemed to have stable housing in the apartment and DCS again closed the case.
Despite being provided with cleaning supplies, the living conditions continued to be
unsanitary, new animals were brought into the home, and the Children’s development
remained stalled. By October 2010, DCS had removed the Children, concluding that they
were at risk in their parent’s custody. As their last case manager put it, “there was no
progress made and resistance. Like there was no understanding that this needs to change.”
The evidence does not preponderate against the trial court’s finding of persistence of
conditions. The trial court did not err in terminating Mother’s rights on this ground.
VI.
Mother challenges the trial court’s finding that she failed to comply with her
responsibilities under the permanency plan. Her position is essentially two-fold: (1) She
completed most of her assigned responsibilities and (2) any deficiencies are the result of
DCS’s failure to provide reasonable efforts to assist her.
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Tenn. Code Ann. § 36-1-113(g)(2) provides that a ground for termination exists when
“[t]here has been substantial noncompliance by the parent or guardian with the statement of
responsibilities in a permanency plan.” As summarized by the trial court, the initial
permanency plan gave Mother six months to accomplish certain required tasks:
[M]aintain a legal source of income, maintain safe and stable
housing, keep the home clean, cooperate with Solutions Source
to develop homemaker skills, manage mental health, undergo a
full psychological examination and com ply w ith
recommendations, and comply with assessments and sign
releases with all providers to enable DCS to monitor progress.
Revised plans essentially reiterated Mother’s responsibilities and afforded her additional time
to complete them. As the court observed, DCS explained the requirements, Mother signed
the plan, and the juvenile court approved the tasks as being reasonably related to remedying
the conditions that necessitated foster care for the Children.
The court found that Mother “has not substantially complied with the responsibilities
and requirements set out for her in the permanency plans.” In particular, the court found that
“[s]he has not maintained a legal source of income, not maintained a safe and stable home,
not attended scheduled appointments, and she has not completed a mental health intake.”
The record reflects that the trial court properly summarized and considered the relevant
evidence. In the year following the Children’s removal, Mother completed few of the
assigned “action steps.” DCS referred her for a parenting assessment that included a limited
mental evaluation, which she completed in December 2010. She failed to follow
recommendations to complete a mental health intake and obtain regular mental health care.
Mother explained that she took an “IQ test” and did not understand that anything else was
required. For the most part, Mother also kept scheduled visitation appointments. The next
year, no further progress was noted.
More importantly, Mother never achieved the plan’s primary goals of obtaining an
income source and a safe – that is, reasonably clean, – stable home for the Children. Her
efforts at obtaining an income source were largely limited to her efforts to gain disability
benefits. She, like Father, saw nothing wrong with the living conditions in the home.
Mother agreed it could be a “little cluttered and a little dirty” at times, but asserted that those
who testified to anything worse were lying. On our review, the evidence clearly and
convincingly shows that Mother failed to comply substantially with the requirements of the
permanency plan.
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Lastly, the trial court expressly rejected Mother’s position that DCS failed to make
reasonable efforts to assist her in achieving the plan’s requirements. The court found:
DCS made reasonable efforts to help [Mother and Father] satisfy
the requirements in the permanency plan because DCS
scheduled a Child and Family Team meeting to discuss
permanency and to develop a permanency plan, created and
ratified the permanency plan, made referrals for parenting
assessments, provided the contact information and paid for a
drug and alcohol assessment, scheduled all supervised visitation,
located suitable foster placement, scheduled and organized
regular and necessary medical care, maintained communication
with [Mother and Father] . . . , assessed [Mother’s and Father’s]
situation and needs, placed service providers onto the case to
assist [them] with parenting skills. . . .
The record reflects that, in addition, DCS workers assisted Mother despite their
difficulty in maintaining contact with her as she and Father frequently moved. The trial court
rejected Mother’s assertion that she never understood the permanency plan. The court
implicitly credited the testimony of the case manager that she personally reviewed the plan
with Mother, broke the requirements down into simple steps, explained them to her again and
again, and sometimes provided handwritten check lists with steps she needed to complete.
Despite her claimed lack of understanding, Mother expressly admitted that she knew she was
expected to obtain an income, and “get a place to live and keep it clean.” Mother and Father
became homeless when they stopped receiving government assistance and benefits for the
Children after losing custody of them. She testified that, since then, she had not found a job
because she was waiting to be approved for social security disability benefits and believed
they would “come through.” Mother testified that she was capable of researching newspaper
ads to find affordable rental homes and had rented in the past. Because public housing was
not an option, DCS additionally connected the family with churches and other housing
assistance through which they obtained an apartment and furnishings. Even then, Mother and
Father proved unable to maintain a suitable living environment. Mother offered no reason
for her failure to keep a safe, sanitary home even when the older two children were enrolled
in preschool and she was not working outside the home.
This Court has often acknowledged that “[t]he success of a parent’s remedial efforts
generally depends on the Department’s assistance and support.” In re Giorgianna H., 205
S.W.3d 508, 518 (Tenn. Ct. App. 2006) (citing In re C.M .M ., No.
M2003-01122-COA-R3-PT, 2004 WL 438326, at *7 (Tenn. Ct. App. Mar. 9, 2004); State
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Dep’t of Children’s Servs. v. Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946776,
at *10 (Tenn. Ct. App. M.S., filed Aug. 13, 2003)). We have further observed, however, that
the manner in which the Department renders services must be
reasonable, not herculean. In addition, the Department is not
required to shoulder the burden alone. The parents must also
make reasonable efforts to rehabilitate themselves and to remedy
the conditions that required the removal of the children.
In re Bernard T., 319 S.W.3d 586, 601 (Tenn. Ct. App. 2010)(internal citations omitted;
emphasis added). The reasonableness of the DCS’s efforts should be decided on a
case-by-case basis in light of the unique facts of the case. Id. In the present case, the
evidence does not preponderate against the trial court’s finding that Mother failed to make
any concrete, significant progress in completing the permanency plan steps. This is
particularly true as to obtaining an income and safe, stable housing. The trial court did not
err in terminating Mother’s rights pursuant to Tenn. Code Ann. § 36-1-113(g)(2).
VII.
Tenn. Code Ann. § 36-1-113(g)(3) provides a ground for termination, commonly
referred to as “persistence of conditions”:
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:
(A) The conditions that led to the child’s removal or other
conditions that in all reasonable probability would cause the
child to be subjected to further abuse or neglect and that,
therefore, prevent the child’s safe return to the care of the
parent(s) or guardian(s), still persist;
(B) 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
(C) 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 . . . .
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In support of its termination order, the trial court found that the conditions which led
to the Children’s removal continued to persist, making a return to Mother’s custody
impossible. The court stated, in relevant part:
[T]he parents are still without a home, a legal source of income,
they still lack the basic parenting skills to meet the basic needs
of the children . . . , they have no transportation. . . . The parents
have failed to take advantage of the resources offered by DCS
to assist them prior to removal, prior to filing the petition to
terminate parental rights, and after the filing of the petition to
terminate. . . .
The Court finds that there is little chance that those conditions
will be remedied soon so that the children can be returned safely
to the home because, for the past twelve . . . months[,] DCS
made reasonable efforts to help [Mother] remedy them, to no
avail.
* * *
[W]hat has been proven is that for these children’s entire lives
prior to custody they were bounced from motel room to
apartment and back again with no place to call home. Every
time DCS became involved with the family it was because their
home was absolutely nasty, filthy, and presented a clear danger
for the children. [The parents] claim that was due to the number
of children and their developmental disabilities. The Court finds
contrary because when the situation was bad enough for DCS to
become involved then the house would be cleaned, groceries
would appear, and the parents would find employment but as
soon as DCS close a case the family would quickly return to
filth, no jobs, no home, and place the children back in the same
dangerous situations as before.
The Court concluded that “continuation of the parent/child relationship greatly diminishes
the children’s chances of being placed into a safe, stable and permanent home.” Following
our review of the evidence, we agree.
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In our view, Mother all but conceded that conditions persist which prevented the
Children from being returned safely to her custody. Near the end of her testimony, Mother
stated:
Nothing has changed within the last two years. I’m not asking
for my kids back. I’m asking for . . . my rights not to be
terminated because what’s not changed . . . it doesn’t mean that
it can’t be changed within the next week or the next month, me
finding a job and getting a place to live.
Unfortunately, the lack of any notable progress by Mother in the two years since the Children
were removed does not inspire confidence that Mother is actively engaged in anything more
than wishful thinking. Stated differently, we see no reason to join in her apparent belief that
a better life lies just around the corner. If anything, Mother’s situation has deteriorated – she
was on her own, had no income, no home of her own, no car, and had never demonstrated
serious effort or motivation to tackle any of these issues for the benefit of the Children or
herself.
The evidence preponderates strongly in favor of the trial court’s finding of persistence
of conditions. Accordingly, the trial court did not err in terminating Mother’s rights pursuant
to Tenn. Code Ann. § 36-1-113(g)(3).
VIII.
Father asserts that DCS failed to provide reasonable efforts to assist him in completing
his responsibilities in the permanency plan so that he could be reunited with the Children.
Citing his “utter lack of resources” and “extremely low IQ,” Father concludes that DCS
“should have shouldered greater responsibility in assisting him with completion of the
required tasks. . . .”
We earlier set out the manner in which DCS, over an extended period of years, applied
its specialized skills, experience and resources to assist Father and Mother to establish a
stable home and appropriate living environment for the Children. In addition, the case
manager offered to personally transport Father (and Mother) for any reason related to
completing a task in the permanency plan. At trial, Father contended that DCS never
explained the permanency plan to him despite proof that it was created with his input.
Morever, he signed the plan to indicate his understanding and acknowledgment of its
requirements and the consequences of failing to satisfy those requirements. Each time the
plan was revised, Father was afforded additional time to meet his responsibilities. Instead,
as the Children lingered in foster care, he continued his old ways, incurring new charges and
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this time landing in jail to serve the better part of at least a year. Father had not held a steady
job since 2011, and seemed resigned to “maybe walk around and mow lawns.” He indicated
to his case manager, however, that his difficulty was not so much with finding jobs, but in
keeping them for any length of time because of his anxiety issues. Again, Father did little
to address any such personal problems. In 2010, DCS referred Father for a psychological
evaluation at Frontier Health. He acknowledged, but failed to follow through with, the
resulting recommendations that he undergo a full psychiatric consultation, receive individual
therapy, obtain alcohol and drug treatment, attend family therapy, attend parenting education
courses, and receive in-home services. With respect to conditions in the family’s home,
Father largely denied there were any issues with any of the places they stayed. He added that
none of the in-home service providers “really talked to [him] ever.” He admitted, however,
“I was usually in the background just watching if I was there.” He further admitted he
usually left when they arrived because he “didn’t want to deal with them.” Father’s lack of
interest, effort, and involvement, before and after the Children’s removal, is telling.
“Although the Department bears a heavy responsibility with regard to reunification, the road
to reunification is a ‘two-way street.’ ” State Dep’t. of Children’s Servs. v. S.M.D., 200
S.W.3d 184, 198 (Tenn. Ct. App. 2006). In the present case, it does not appear that Father
traveled very far down his side of that street.
In our view, the proof shows that Father did virtually nothing to help himself but
expected Mother, DCS, or someone else, to take responsibility for providing a suitable home
and appropriate care and support of the Children. Father admitted that before the Children
were removed, he was away from home several nights a week because he found it stressful.
Father testified that “blowing off steam” was a priority then, but claimed he was now a
changed man. He believed the church would help him find a job, but offered that he would
“get out there if I have to.” We conclude that DCS provided reasonable efforts to guide,
encourage, and assist him in meeting his responsibilities under the permanency plan. In the
two years since the Children were removed, however, Father made minimal efforts of his
own toward reunification. As one case manager observed, after 14 months, none of the
pressing issues were resolved or showed any improvement – “no housing, no income, no
transportation, no means of communicating. . . .” This issue is without merit.
IX.
Our review leads us to conclude that there is clear and convincing evidence to support
the multiple grounds for termination found by the trial court. Guided by a non-exclusive set
of statutory factors set forth in Tenn. Code Ann. § 36-1-113(i), we next review the court’s
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finding, also said to be made by clear and convincing evidence, that termination is in the best
interest of the Children.2
2
The factors are:
(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;
(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;
(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;
(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, controlled substances or controlled
substance analogues 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; or
(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant to §
36-5-101.
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The trial court made extensive findings in support of its best-interest determination.
We summarize them as follows:
[T]hey have not made changes in their conduct or circumstances
that would make it safe for the children to go home. Their
situation has become worse since the children have come into
custody. They live a transient lifestyle and [Father] has a
substantial list of criminal charges consistent with vagrancy.
[T]hey have not made lasting changes in their lifestyle or
conduct after reasonable efforts by the state to help, so that
lasting change does not appear possible.
[C]hanging caregivers at this stage of their lives will have a
detrimental effect on them. The children have now been able to
meet their developmental milestones and they are well bonded
to their foster parents.
[T]hey neglected the children by failing to meet their needs
[and] each of the children have suffered social, physical and
verbal delays resulting in severe developmental delays.
[Mother’s and Father’s] mental or emotional state would be
detrimental to the children and would prevent them from
effectively parenting. . . .
[T]hey have not paid child support consistently.
[T]hey have shown little or no interest in the welfare of the
children.
[T]he children have developed a strong bond with their foster
parents, who wish to adopt them.
[T]he parents are homeless and without income or
transportation. Both parents have exhibited poor insight and
very poor parenting skills.
DCS removed the Children in October 2010 out of “grave concern for the children’s
well-being and safety.” The removal came after some four years of efforts, resources, and
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assistance were expended in an effort to guide Mother and Father toward providing a safe,
suitable living environment and otherwise meeting the Children’s most basic needs.
Significantly, because the parents had never obtained stable housing after the Children were
gone, they never demonstrated that they had acquired the skills necessary to maintain a clean
home. At the time of trial, Father remained in jail and Mother had just moved in with a
friend. Their circumstances were otherwise virtually unchanged. Nothing in the proof at
trial inspires confidence that the Children could soon be returned to Mother’s and Father’s
custody. The proof indicated that the Children were doing well in foster care despite being
placed in two separate homes. The Children’s profound developmental delays were being
addressed, they were receiving much-needed therapy and their medical and nutritional needs
were being met. As the trial court put it,
these parents are not really bad actors in the sense that they’re
out to hurt their children. They’re just not tak[ing] care of them
unless somebody is watching them.
The trial court concluded that too much time had passed with no prospect for improvement
in the foreseeable future. We agree. Looking at the termination decision from the Children’s
perspective, as we must, there is clear and convincing evidence to show that their interest is
best served by permanently severing Mother’s and Father’s parental rights.
X.
The judgment of the trial court terminating the parental rights of Mother and Father
is affirmed. Costs on appeal are taxed to the appellants, T.R.D. and S.M.W. This case is
remanded to the trial court, pursuant to applicable law, for enforcement of the trial court’s
judgment and collection of costs assessed below.
__________________________________________
CHARLES D. SUSANO, JR., PRESIDING JUDGE
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