In Re Antonio J. ( 2018 )

12/28/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs April 3, 2018
IN RE ANTONIO J., ET AL.1
Appeal from the Juvenile Court for Davidson County
No. PT0000194085, 2012-002407, 2012-002409, 2012-002410
Sheila Calloway, Judge
___________________________________
No. M2017-01833-COA-R3-PT
___________________________________
A mother placed the children that are the subject of this appeal with a child placement
agency because she was unable to provide a stable home for them. Ten months later, the
agency filed a petition to have the children declared dependent and neglected; the court
appointed a guardian ad litem for the children and in due course declared the children to
be dependent and neglected and continued custody with the agency. The guardian ad
litem initiated this proceeding to have the mother’s parental rights terminated on the
grounds of abandonment by failure to visit and support, abandonment by failure to
establish a suitable home, substantial non-compliance with permanency plans, and
persistence of conditions; the agency later filed a separate petition on most of the same
grounds also seeking termination of mother’s rights. Following a trial, the court
terminated the mother’s rights on the grounds of abandonment by failure to visit,
substantial non-compliance with the permanency plans, and persistence of conditions; the
court also found that termination of mother’s rights was in the children’s best interest.
The mother appeals, denying that grounds existed to terminate her rights and that
termination was in the children’s best interest; the guardian ad litem and agency appeal
the failure of the court to sustain the ground of abandonment by failure to support. Upon
our de novo review, we affirm the determination that the evidence established the
grounds of abandonment by failure to visit, substantial non-compliance with the
permanency plans, and persistence of conditions; we vacate the holding that termination
of mother’s rights was in the children’s best interest and remand the case for further
consideration.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in
Part, Vacated in Part; Case Remanded
1
This Court has a policy of protecting the identity of children in parental termination cases by initializing
the last names of the parties.
RICHARD H. DINKINS, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and KENNY W. ARMSTRONG, J., joined.
David R. Grimmett, Nashville, Tennessee, for the appellant, Lenore G. E.
Jade Rogers Willis, Gallatin, Tennessee, for the appellees, Association for Guidance,
Aid, Placement and Empathy, Inc.
Aderonke Kehinde, Mount Juliet, Tennessee, Guardian ad litem.
OPINION
This case has its genesis in a petition filed on April 30, 2012, by the Association
for Guidance, Aid, Placement, and Empathy, Inc., (“AGAPE”), a child-placement
agency, to have the children that are the subject of this proceeding, Elizabeth J. (born July
2007), Joana J. (born November 2008), and Julie J. (born October 2009), along with their
older sibling, Antonio J. (born January 2006), declared dependent and neglected. The
children’s mother, Lenore E., had placed the children in the physical custody of AGAPE
on June 17, 2011, due to her inability to take care of them. Following a hearing on May
8, 2012, temporary custody of the children was given to AGAPE. On December 13,
2012, the court entered an order adjudicating the children to be dependent and neglected.
The order noted that AGAPE and Mother had successfully completed a ninety-day trial
home placement for Antonio and returned full custody of him to Mother but held that it
was not in the best interest of the other children to be returned to Mother at that time; the
parties agreed that the other children would be placed in Mother’s home on a staggered
schedule for ninety days beginning December 15, 2012. Permanency plans were
prepared and ratified on August 23, 2012, April 15, 2013, and December 5, 2013.
On August 4, 2014, Aderonke Kehinde, the children’s guardian ad litem, filed a
petition to terminate Mother’s parental rights to Elizabeth, Joana, and Julie, asserting as
grounds: abandonment by failure to visit or support (Tennessee Code Annotated sections
36-1-113(g)(1) and 36-1-102(1)(A)(i)); abandonment by failure to establish a suitable
home (sections 36-1-113(g)(1) and 36-1-102(1)(A)(ii)); substantial non-compliance with
the permanency plans (section 36-1-113(g)(2)); and persistence of conditions (section 36-
1-113(g)(3)). The petition also alleged that termination of Mother’s rights was in the
children’s best interest. Mother answered the petition, denying that grounds existed for
the termination of her rights and that termination was in the best interest of the children.
On December 4, AGAPE filed a separate petition to terminate Mother’s rights, alleging
the same grounds in support of termination except abandonment by failure to support.2
2
Both petitions also sought to terminate the parental rights of the children’s legal father, who was married
to Mother when the children were born but was not listed as their father on their birth certificates, and the
2
Following a trial, the court sustained the grounds of abandonment by failure to
visit, substantial noncompliance with the permanency plans, and persistence of
conditions; after determining that grounds existed to terminate Mother’s rights, the court
considered the factors at section 36-1-113(i) and held that termination was in the
children’s best interest. Mother appeals, asserting that neither the grounds for termination
of Mother’s rights nor the finding that termination was in the children’s best interest were
proven by clear and convincing evidence; Mother also contends that the court’s
conclusions of law were not adequate for purposes of appellate review. In addition, the
guardian ad litem and AGAPE contend that the record contains clear and convincing
evidence of abandonment by failure to pay support.
AGAPE and the guardian ad litem concede that the case should be remanded as to
the court’s holding that termination was in the best interest of the children because the
court did not consider and make findings as to all factors at section 36-1-113(i). While it
is not necessary for the court to make findings as to all statutory factors in order to hold
that termination of Mother’s rights is in the best interest of the children, upon our review
of the order terminating Mother’s rights, we agree that the case should be remanded for
further consideration of the best interest factors, as explained more fully hereinafter. In
the interest of the expeditious resolution of this case and judicial economy, we shall
proceed to address the sufficiency of the evidence relative to the grounds for termination.
I. STANDARD OF REVIEW
Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Adoption of A.M.H., 215 S.W.3d 793,
809 (Tenn. 2007). However, that right is not absolute and may be terminated in certain
circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep’t of
Children’s Serv. v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). The statutes on
termination of parental rights provide the only authority for a court to terminate a parent’s
rights. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental rights may be
terminated only where a statutorily defined ground exists. Tenn. Code Ann. § 36-1-
113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d
620, 622 (Tenn. Ct. App. 1998). To support the termination of parental rights, only one
ground need be proved, so long as it is proved by clear and convincing evidence. In the
Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).
Because the decision to terminate parental rights affects fundamental
constitutional rights and carries grave consequences, courts must apply a higher standard
of proof when adjudicating termination cases. Santosky, 455 U.S. at 766–69. A court
may terminate a person’s parental rights only if (1) the existence of at least one statutory
ground is proved by clear and convincing evidence and (2) it is shown, also by clear and
children’s natural father. The parental rights of the legal and biological fathers were not adjudicated in
the proceeding and are not at issue on appeal.
3
convincing evidence that termination of the parent’s rights is in the best interest of the
child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808–09;
In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). In light of the heightened standard of
proof in these cases, a reviewing court must adapt the customary standard of review set
forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App.
2004). As to the court’s findings of fact, our review is de novo with a presumption of
correctness unless the evidence preponderates otherwise, in accordance with Tenn. R.
App. P. 13(d). Id. We must then determine whether the facts, “as found by the trial court
or as supported by the preponderance of the evidence, clearly and convincingly establish
the elements” necessary to terminate parental rights. Id. In this regard, clear and
convincing evidence is “evidence in which there is no serious or substantial doubt about
the correctness of the conclusions drawn from the evidence” and which “produces a firm
belief or conviction in the fact-finder’s mind regarding the truth of the facts sought to be
established.” In re Alysia S., 460 S.W.3d 536, 572 (Tenn. Ct. App. 2014) (internal
citations omitted).
II. DISCUSSION
A. Abandonment by Failure to Visit and Support
Tennessee Code Annotated section 36-1-113(g)(1) designates abandonment, as
defined at Tennessee Code Annotated section 36-1-102(1)(A)(i), as a ground for
terminating parental rights. Tennessee Code Annotated section 36-1-102(1)(A)(i) defines
“abandonment”:
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 or parents or the guardian or guardians of the child who is the
subject of the petition for termination of parental rights or adoption, that the
parent or parents or the guardian or guardians 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;
In In re Audrey S., the court discussed willfulness in the context of termination cases:
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
4
code. Nor does it require malevolence or ill will. 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 “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.
182 S.W.3d 838, 863-64 (Tenn. Ct. App. 2005) (citations omitted).
With respect to this ground, the trial court held:
Pursuant to T.C.A. § 36-1-113(g)(1) and T.C.A. § 36-1-102(1)(A)([i]),
[Mother] has willfully abandoned her children due to a failure to visit or to
engage in more than token visitation as defined in T.C.A. § 36-1-102(1)(C)
and T.C.A. § 36-1-102(2)(E) for the four months preceding the filing of the
Guardian Ad Litem’s Petition to Terminate her parental rights on August 4,
2014, as well as in the four months preceding the filing of AGAPE’s
Petition to Terminate her parental rights on December 4, 2014. Although
[Mother] did some visitation, there were more occasions when she
cancelled her scheduled visitation the night before or the day of the visit.
Furthermore, there were a number of missed therapy appointments on
[Mother’s] behalf.
Mother first argues that the trial court erred in considering Mother’s actions during
both the four-month period preceding the filing of the Guardian’s petition (April 3 to
August 3) and the four-month period preceding the filing of AGAPE’s petition (August 3
to December 3) in analyzing whether Mother abandoned the children by failing to visit
them, and in failing to state the period of time it was relying on in making its findings.3
She argues that the “four months period prior to the guardian ad litem’s petition is the
first and only relevant four month period for purposes of determining abandonment due
to the fact that this initiated the termination proceeding pursuant to the statute.” The
distinction matters because Mother’s fifth child was born April 6, 2014, three days after
the four-month period began, as triggered by the guardian ad litem’s petition; Mother
testified that the delivery was by C-section, with complications and accompanied by a
3
The guardian ad litem’s petition was filed August 4, 2014, and AGAPE’s petition was filed December 4,
2014; consequently the relevant time period was April 4 to August 3 for the guardian ad litem’s petition
and August 4 to December 3 for AGAPE’s petition. See In re Jacob C. H., No. E2013-00587-COA-R3-
PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014) (“[T]he applicable four month window for
determining whether child support has been paid in the context of the ground of willful failure to support
includes the four months preceding the day the petition to terminate parental rights is filed but excludes
the day the petition is filed. In other words, the last day of the four month period is the day before the
petition is filed.”).
5
hysterectomy, and resulted in her having an extended period of recovery well into the
four month period. Mother argues that because she was on bed rest and unable to visit
the children during this time, the evidence is not clear and convincing that her failure to
visit was willful.
We agree with Mother that, under the facts and circumstances presented, the four-
month period prior to the filing of the guardian ad litem’s petition–April 3 to August 3–is
the relevant period for application of section 36-1-102(1)(A)(i). The guardian ad litem’s
petition alleged, inter alia, that:
 The children were placed in the physical custody of AGAPE on June 17,
2011, as a result of Mother’s inability to care for them, and adjudicated
dependent and neglected on December 11, 2012
 The Mother willfully failed to visit or support the children in the four
months preceding the filing of the petition
In its petition, AGAPE recites the history of its involvement in the dependent and neglect
proceeding, as well as the efforts it has made while the children have been in custody; it
does not allege any fact arising after the date the Guardian ad litem’s petition was filed or
assert a new ground for termination. The pertinent wording of section 36-1-102(1)(A)(i)
is clear and unambiguous: the period is the “four (4) consecutive months immediately
preceding the filing of a proceeding or pleading to terminate the parental rights of the
parent . . . of the child who is the subject of the petition for termination of parental
rights.” There is no basis to apply a different four-month period than that measured by
the Guardian’s petition. Accordingly, inasmuch as Mother does not argue that she did
visit or support the children in the pertinent four-month period, we look to the evidence
she relies upon in asserting that her failure to visit was not willful.
The pertinent testimony cited by Mother regarding her post-delivery medical
challenges states:
Q. And when you saying “recovering,” what do you mean by recovering?
How were you recovering?
A. I had two surgeries. I had my children by C-section, and when I had
Caden there were complications from the surgery, and so I was in the
hospital for a little while. They had the machines. They had the machines
hooked up to me because I wasn’t breathing on my own, and so I had to
stay at home longer due to both of those complications.
Q. That was in April, 2014. How long was the recovery time?
A. For a normal C-section is usually about six months -- I mean six weeks,
a little longer depending on the C-section, but with the other complications
they recommended that I try to stay home a little longer than that.
Q. Did you have a hysterectomy?
6
A. Yes.
Q. Do you remember how long they told you to stay -- or did they tell you
to stay in bed rest?
A. Yes.
Q. How long did they tell you to do that?
A. I don’t remember. There was still some other procedures that they had
to do. Once I got out of the hospital there was still some procedures that
they hadn’t finished when it came to -- from the surgery, and so I don’t
remember exactly how long we stayed.
Q. Other than the hysterectomy what other procedures did you have
performed?
A. I lost a lot of blood.
Q. Anything else?
A. I don’t remember. I was unconscious.
Q. So one petition was filed in August of 2014, so between April, 2014 and
August, 2014, that would have been right around the time that you had this
hysterectomy; is that right?
A. That’s correct.
Q. And you’re saying -- let me ask you. Did that have any kind of effect on
your visitation?
A. It did. It had an effect on a lot of things. I first -- when I first got out of
the hospital sometimes my days would be confused, you know. When I was
in the hospital I lost a day or so.
My back -- I had problems with my back and my feet, but I kind of
found another job once I had gotten -- when my son was born that April I
went back to the airport and started working at Hudson Group.
Q. When was that?
A. Around May or June is when I started at the Hudson Group.
Q. That’s May or June, 2014?
A. Correct, and I believe I was there about two months, but because of my
back and my feet, I couldn’t even go to a job.
Q. So between April and August, how many months were you working
during April to August, 2014?
A. I wasn’t at that point.
Q. What?
A. I wasn’t at that point.
Q. So between April and August you were not working?
A. No.
Q. I thought you just said that you were working in May and June of 2014
at Hudson Group.
A. Yeah, sorry.
7
Q. Now this is important so I need you to listen to my question. Okay?
Between April, 2014 and August, 2014, how many of those months were
you working?
A. Two.
Q. And the other two months?
A. I don’t know.
In response to Mother’s argument, AGAPE cites the testimony of Mary Corwin,
the caseworker who began working with the children in June 2013, who testified at
length regarding Mother’s visitation with the children, both prior to and during the April
3 to August 3, 2014, time period. The pertinent portions of her testimony are below,
including testimony relative to visitation from January 2014 through July 2014, to give
context to our analysis of Mother’s contention that her failure to exercise visitation in the
pertinent period was not willful.4
Q. Now let me take you back to January of 2014. How many visits did
mother have in January of 2014?
A. She had a visit that’s scheduled on January the 18th, which is one I
previously testified was stopped because of the transportation arrangement
for the children.
Q. Okay.
A. And it appears as though that’s the only visit that took place in January.
Q. How many visits did she have in February of 2014?
A. I don’t have any visits documented in my notes in February of 2014.
Q. What about March of 2014?
A. There was one on March the 19th of 2014.
***
Q. What about April -- so far we had one scheduled visit that didn’t occur
because mom didn’t have a driver’s license, so she didn’t have the required
things to be able to visit. We had no visits in February. We had one visit in
March.
Now, based on the plan what was the minimum number of visits that
was made to occur?
A. That was two.
Q. About two. Now what about April, 2014? How many visits did mom
have?
4
In this regard, Ms. Corwin also testified relative to medical and counseling appointments that took place
over the January – August time frame, inasmuch as Mother’s permanency plan contemplated that she
would attend such appointments.
8
A. She had a visit on April the 19th of 2014, which had been postponed
because she was leaving the hospital on April the 11th when the visit was
originally scheduled for.
Q. Any other visit for the month of April?
A. Not other than attending the speech and language appointment with
Joana.
Q. Now let me go back. Between January, 2014 and April, 2014 that we’re
now talking about, were there appointments for the children, either
Elizabeth or Joana or the youngest one? Were there different medical
appointments that mother could have attended?
A. Yes.
Q. Did she attend any in January?
A. No. She was scheduled to attend a counseling appointment with
Elizabeth in January, and I received a text message stating that she was not
able to make it.
Q. So what day was the appointment, that counseling appointment?
A. The appointment for counseling for Elizabeth was on January the 13th
of 2014, which was a Monday, and on that day I received a text message
from [Mother] stating that she could not make it to the counseling
appointment on Tuesday and asked for the dates of upcoming
appointments.
Q. And had she attended the January 13 appointment that would have been
an opportunity for her to visit with Elizabeth. Isn’t that true?
A. Correct.
Q. Were there any appointments scheduled for February, 2014 for any of
the children?
A. I’m sorry. Did you say appointments?
Q. Yes. You’ve told the Court that there were no visits at all for February,
but were there any appointments scheduled?
A. Yes. Joana had appointments on 2-11, 2-18 and 2-25 for speech and
therapy.
Q. Did mother attend any of those appointments?
A. Not of those appointments, no.
***
Q. Now were any appointments set up for March of 2014, medical, dental,
you know, for any of the children?
A. Yes. Joana had speech and language on March the 4th, and on March
the 11th, March the 14th, March the 18th.
Q. So four possible appointments, or four appointments?
A. And also on March the 25th.
Q. So five appointments?
9
A. Correct.
Q. Did she attend -- [Mother] -- attend any of those appointments?
A. She attended the appointment on March the 25th of 2014.
Q. So she had a possible five, and she attended one, and she had one visit.
Now, were there any -- I think you will testify that she attended speech.
What about May? Were there any visits scheduled for May, 2014?
A. I’m sorry. Did you say visits or appointments?
Q. Visits. I’m sorry.
A. She visited with the children on May the 3rd.
Q. Any other visits?
A. There was a visit scheduled for May the 17th, which there was no
confirmation call. There was a visit scheduled on May the 31st, and that
visit did not take place as she stated that she had to work and could not
make the visit.
***
Q. Let’s go to June of 2014. How many visits did she have in June, 2014?
A. There was a visit scheduled for June the 14th of 2014, and it states -- my
record states that [Mother] informed me that her work schedule had
changed, and she could not make that appointment.
Q. So it was scheduled, but it did not occur. So no visits occurred in June
of 2014?
A. No.
Q. Now did mother call you back after she had said to you she couldn’t
make that appointment? Did she call you back in June at all to see if she
could reschedule the appointment?
A. No.
Q. Did any of the children have any appointments in June of 2014?
A. Yes.
Q. What appointments did they have, and who had appointments --
medical, dental, therapy, anything?
A. Joana had a speech and language appointment on June the 10th.
Q. Was that the only one?
A. That’s the only one that I have noted.
Q. Did mother attend that one?
A. No.
Q. So even though she didn’t have a visit, she could have visited with
Joana if she had attended the therapy session, but she did not?
A. That’s correct.
Q. Let’s go to July of 2014.
A. Okay.
Q. How many visits occurred in July of 2014.
10
A. A visit occurred on July the 9th of 2014.
Q. Were any other visits scheduled?
A. A visit was scheduled on July the 21st of 2014, and again there was no
confirmation call within the 24 hours prior to the visit.
Q. So the visit did not occur. So far based on your testimony, between
January and July of 2014, mother had 14 possible opportunities to visit with
the children, is that correct, because if she was doing every other week or
twice a month, seven months from January to July would be 14
opportunities to visit?
A. Correct.
Q. How many times, based on your testimony, did she visit?
A. I mean, I can go back and re-count.
Q. And I can tell you. I’ll let you go back and count.
A. I’m sorry. We’re looking at January ...
Q. January to July of 2014. You testified that she did not visit the visit of
January. There was one visit that was stopped so there was no visit in
January. In February you testified that there was no visit. In March you
testified that there was one visit?
A. Correct.
Q. In April you testified that there was one visit. You’ve testified that in
May there was one visit, and in July there was one visit. By my calculations
that is four visits in seven months. Would that be accurate?
***
A. Sorry. It will take me a few minutes to go back and confirm when visits
took place. According to my notes I can find one visit in March, one in
April, one in May and one in July for a total of four visits in that time
period.
In light of the entire testimony on this issue, we are not persuaded by Mother’s
argument. The evidence shows the same pattern of Mother’s missing opportunities to
visit with her children before and after the birth of her last child in April; moreover, it
shows that, despite any asserted physical limitations, Mother was able to work during the
four month period. We conclude that Mother’s failure to visit over that period was
willful.5
With respect to the ground of abandonment by failure to support, the permanency
plan dated November 22, 2013, and ratified on December 5, required Mother to pay $30
5
Our resolution of this issue pretermits our consideration of AGAPE’s contention that the court erred in
allowing Mother and her boyfriend to testify relative to her medical condition, diagnosis, and treatment.
11
per month.6 Ms. Corwin testified that Mother did not make any payments between
January and August 2014; she also testified that she was “not able to verify either by
documentation or anything like that,” that Mother was employed or otherwise
“financially ready and able” to take the children.7 As to this ground, the trial court
concluded:
4. The Court does not find that clear and convincing evidence has been
presented regarding whether or not [Mother] has abandoned her children by
willfully failing to pay child support or only paying token support pursuant
to T.C.A. § 36-1-113(1)(A)(i) and T.C.A. § 36-1-102(1)(D). While
[Mother] has not consistently made child support payments to AGAPE as
required in the Permanency Plans, there is no clear and convincing
evidence that this was willful and the support that she did pay was
insignificant given her means as set out in T.C.A. § 36-1-102(1)(B). Thus,
this ground is not one of the conditions based on which this Termination of
Parental Rights has been granted.
(Italics in original).
We agree with the trial court. A failure to support 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 864.
The trial court did not make any specific findings relative to whether Mother worked or
had income during the four-month period preceding the filing of the petition, or as to her
expenses during that period. Upon our review, while there is some testimony in the
record that Mother worked while the children have been in AGAPE’s custody, the
testimony does not establish what her income and expenses were during the period at
issue. As a consequence, there is not clear and convincing proof from which to conclude
that Mother had the capacity to pay support during that period.
For the same reason, Appellees’ argument that the court erred in failing to find
that Mother abandoned the children by failing to support them is not well taken.
B. Substantial Noncompliance with the Permanency Plans
The trial court held that Mother had not substantially complied with the
requirements of the three permanency plans. Mother first argues that the trial court
“failed to make adequate conclusions of law in order to allow either the parties or this
Honorable Court an opportunity to properly review the trial court’s legal reasoning.”
6
It is not clear if Mother was to pay $30 per month per child, as appears from the wording of the plan, or
if she was to pay a total of $30 per month for all of the children, as testified to by Ms. Corwin.
7
This testimony was given in the context of discussing Mother’s compliance with the permanency plans.
12
Alternatively, Mother argues that “the facts presented at trial do not meet clear and
convincing evidence.”
Contrary to Mother’s first argument, the court made findings of fact separate from
its conclusions of law, relative to each of the grounds for termination. Pertinent to this
issue are the following findings:
13. Following the removal of the children, AGAPE made all reasonable
efforts to assist the Respondent-Mother with finding a home and being able
to provide financially for her children. AGAPE helped Respondent-Mother
find her current apartment, seek monetary donations, and find
transportation to and from court, visits with the children, appointments, IEP
meetings, and other commitments. AGAPE provided these substantial
transportation services to Respondent-Mother between June 2011 and May
2013.
14. Mr. Fox, AGAPE caseworker, testified that he gave Respondent-
Mother a list of subsidized housing options in November 2011, but
Respondent-Mother failed to make use of the list until February 2012, when
Mr. Fox inquired and was told that [Mother] had lost the list. Mr. Fox
further testified that he took Respondent-Mother to apply for housing and
helped her find and obtain housing at Fallbrook Apartments in February
2012.
15. Mr. Fox also testified that he helped Respondent-Mother secure funds
for living expenses by connecting her with a church which provided her gift
cards for food and cash. Mr. Fox testified that he helped Respondent-
Mother obtain her birth certificate because it was needed to apply for
government benefits.
16. Mr. Fox testified he helped Respondent-Mother obtain DHS benefits by
driving her to the DHS office several times to file and follow-up on her
application. He testified that he helped her reach out to The Opportunities
Industrialization Center (OIC) to help her find a job, but Respondent-
Mother failed to attend her orientation that was scheduled for May 29, 2012
and did not follow up on the job opportunities provided to her.
***
19. Prior to this court proceeding, three sets of Permanency Plans had been
developed and ratified: one on August 23, 2012, a subsequent one on April
15, 2013, and a final one on January 30, 2014. These plans required, in part,
that Respondent-mother find safe and suitable housing, maintain a legal
13
source of income, maintain consistent visitation with the children, and pay
child support for the children. Respondent-Mother testified AGAPE had
made her aware of her obligations and responsibilities pursuant to the plans.
Regardless, Respondent-Mother failed to comply with any of the plans and
did not complete the actionable objectives which were set out in the plans.
20. The first Permanency Plan was created with the intent of returning the
children home one by one for a trial home visit, but the Respondent-Mother
did not comply with the requirement to maintain a legal source of income,
so the gradual return was aborted and never subsequently completed.
21. The second Permanency Plan required, in part, that the Respondent-
Mother visit with the children at least twice a month for two hours per visit
and demonstrate an ability and willingness to comply with Elizabeth’s
therapies, necessary to address her educational needs. Respondent-Mother
did not comply with these objectives, and consistently was late for visits,
cancelled the visits the night before or the morning of the day they were
scheduled to occur, and missed the vast majority of Elizabeth’s therapy
appointments, which she was notified about well in advance.
22. The third Permanency Plan required, in part, that Respondent-Mother
participate in regular visits with her children, make monthly child support
payments to AGAPE, and attend her children’s scheduled appointments and
treatment sessions in order to better understand the needs of her children.
Respondent-mother failed to attend most of these meetings, did not make
the required child support payments, and was often late or absent from her
scheduled visits.
These are adequate findings from which to assess the sufficiency of the evidence to
support the ground of substantial noncompliance, and we proceed to do so.
Mother voluntarily placed the children with AGAPE in June 2011; the dependent
and neglect proceeding was initiated in April 2012, and the first permanency plan
developed two months later. The reason for the children coming into AGAPE’s custody
was stated in the plan:
[Mother] had no housing, income or support and was living with a friend,
but was informed that she had to move out with the children in several
days. She was unable to keep the children safe and to provide food and
ongoing shelter for them and had no support persons or relatives that could
take the children into their care on a daily basis.
14
The plan also noted that each of the children that are the subject of this proceeding had
been evaluated and found to have developmental/learning delays; as well, Mother’s son
had been diagnosed with autism and a heart defect. Thus, in addition to responsibilities
specifically related to Mother’s condition, the plan addressed the necessity for Mother to
receive appropriate information, training, and support relative to the special needs of the
children.
The plan contained certain “Missions” for Mother, identified as safety, well-being
and permanency; within each “Mission” the plan contained statements of “Concern,”
“Needs,” “Outcomes,” and “Action Steps.” Pertinent to this issue, are the following
“Action Steps”:
Mission: Safety
Concern: [Mother] has experienced childhood abuse and neglect, has
been unable to establish a stable lifestyle, and has experienced some post-
partum depression after the birth of Julie.
***
Action Steps: [Mother] will complete a parenting assessment with a mental
health component and will follow the recommendations of the assessment.
The Agape caseworker will assist [Mother] with scheduling the assessment.
Mission: Well Being
Concern: Julie, Joana and Elizabeth have been evaluated by Tennessee
Early Interventions and/or the School System and found to have
developmental/learning delays.
***
Action Steps: [Mother] will contact the Metro Nashville Public School
System to become familiar with the procedure for continuing reunification
services for Julie, Joana, and Elizabeth when they return to her home.
Mission: Permanency
Concern: [Mother] has obtained stable housing in Nashville but has not
completed her GED and has not obtained stable employment.
***
Action Steps: [Mother] will complete the process of obtaining Families
First Benefits and will be assisted with transportation by the Agape
caseworker.
15
[Mother] will continue her GED preparation and obtain job training and
referral services through Nashville Opportunities Industrialization Center
and/or Christian Women’s Job Corp.
[Mother] will obtain daycare services for Daniel once her daycare vouchers
are obtained in order to be able to maintain a job.
[Mother] will pay child support payments of $ on a basis, due on
the of each month in order to become financially invested in the care
of her children. Payments may be made in person at the Agape office or
sent by mail. A receipt will be provided by Agape when each payment is
received.
The next plan was developed April 12, 2013, and was in substantially the same
format as the prior plan. Pertinent portions of that plan read as follows:
Mission: Well Being
Concern: [Mother] failed to comply with requirements to keep Family
First benefits on more than one occasion and does not have sufficient
income to support herself and four children.
***
Action Steps: [Mother] will reapply for Families First benefits.
[Mother] will comply with DHS and the Maximus program in order to keep
the Families First benefits.
Mission: Well Being
Concern: [Mother] has not taken full advantage of the Metro Bus
System but has obtained a car.
***
Action Steps: [Mother] needs to use the Tennessee Drivers Manual to study
for the driver’s license test.
[Mother] will take the driver’s license test.
Mission: Permanency
Concern: [Mother] has obtained stable housing in Nashville but has
expressed an interest to move to Gallatin.
***
Action Steps: [Mother] will maintain safe, stable housing of her own that
can be considered long-term housing.
16
Mission: Permanency
Concern: [Mother] has not passed the complete G.E.D. test and does
not have a high school diploma or GED to date.
***
Action Steps: [Mother] will reconnect with Nashville OIC, Metro Action
Commission or a similar provider in order to complete prep training,
resister for the test and pass the test.
Mission: Permanency
Concern: [Mother] has yet to obtain and maintain appropriate
employment or other means of legal income.
***
Action Steps: [Mother] will reconnect with Nashville OIC or another
similar provider and pursue job training and job placement.
[Mother] will comply with Maximus requirements to make applications for
jobs.
[Mother] will make three job applications per day until she is approved for
Families First benefits and/or obtains appropriate employment and a legal
means of steady income.
[Mother] needs to obtain and maintain suitable employment and a legal
means of steady income.
[Mother] will pay child support payments of $30.00 monthly due on the lst
day of each month in order to become financially invested in the care of her
children. Payments may be made by mail or in person to AGAPE. A receipt
will be provided by AGAPE upon receipt of each payment.
The final plan was developed November 22, 2013, and contains the following
pertinent information:
Mission: Well Being
Concern: [Mother] failed to comply with requirements to keep Family
First benefits on more than one occasion. She is not currently receiving
Families First benefits and it is believed that she does not have sufficient
income to support herself and all four of her children.
***
Action Steps: [Mother] will reapply for Families First benefits.
17
[Mother] will comply with DHS and the Maximus program in order to keep
the Families First benefits.
Mission: Well Being
Concern: [Mother] has not taken full advantage of the Metro Bus
System as evidenced by her chronic lack of attendance at
appointments/visitations. She indicates that she has obtained a vehicle;
however, she only has a learner’s permit at this time.
***
Action Steps: [Mother] needs to use the Tennessee Drivers Manual to study
for the driver’s license test.
[Mother] will take the driver’s license test.
[Mother] will provide a copy of her driver’s license to AGAPE
[Mother] will obtain and maintain adequate insurance coverage on her
vehicle. Additionally, she will provide a copy of the insurance verification
to AGAPE immediately upon the beginning of her coverage.
Until [Mother] can obtain her own drivers’ license and insurance coverage,
she may have to rely on others to help with transportation. Each driver she
uses must be legally licensed with insurance coverage. Verification of each
driver’s license and insurance coverage must be provided to the AGAPE at
least 48 hours prior to a visit in which that designated driver will be used.
Mission: Well Being
Concern: It is believed that [Mother] does not have adequate income to
support herself and her four children. She does not have any Families First
benefits coming in at this time and would have to pay all expenses out of
her pocket if she cannot obtain and maintain her benefits through Maximus
and DHS. [Mother] will develop a budget — inclusive of all her income
sources and household expenses — to her to determine whether or not her
income is truly sufficient to meet her ongoing needs.
***
Action Steps: [Mother] will schedule a time to meet with the AGAPE social
worker to develop a working budget.
[Mother] will continue to follow her budget and will report changes in her
income or expenses to the AGAPE caseworker on an ongoing basis as
changes occur. The AGAPE case manager and [Mother] will both sign off
on the budget that is developed and all parties and legal representatives will
be provided with copies of the budget.
18
Mission: Well Being
Concern: In the past, [Mother] has gone for long periods of time
without maintaining a job and a legal means of income.
***
Action Steps: [Mother] indicates that she has been working at the same
location (Freshen’s Ice Cream inside the Nashville Airport) for the last
several months. She will continue to maintain employment with the same
employer or obtain employment that provides more hourly/financial
stability.
[Mother] will provide paycheck stubs to the AGAPE caseworker. These
should be accumulated and submitted at the end of each month. This will
ensure that AGAPE is provided with ongoing verification of her
employment.
Mission: Permanency
Concern: [Mother] has obtained stable housing in Nashville but has
recently expressed an interest in moving to Gallatin.
***
Action Steps: [Mother] will maintain safe, stable housing of her own that
can be considered long-term housing. She will remain in the same residence
that she currently lives and will not move unless an unforeseen emergency
develops that is out of [Mother]’s control. If the need arises to move, she
will immediately inform the AGAPE caseworkers of the situation.
Mission: Permanency
Concern: [Mother] has not shown a willingness or ability to be
financially responsible for herself or her children.
***
Action Steps: [Mother] has an outstanding balance of $1050 due and
payable to Leaps and Bounds daycare in Nashville. This bill is from the
time frame in which Julie and Joana had been returned to her care and this
was their daycare provider during that time. This was complicated by the
fact that [Mother] did not comply with Maximus and DHS requirements
and lost her benefits including the day care vouchers which would have
covered a majority of this now past due bill.) [Mother] will contact Mr. Bill
Munson at Leaps and Bounds Preschool and will set up a payment
arrangement with him to gradually pay off her outstanding balance. She
19
will then begin making the payments agreed upon and will continue making
the payments until such time as the bill is paid in full.
[Mother] will pay child support payments of $30.00 monthly due on the 1st
day of each month in order to become financially invested in the care of her
children. Payments may be made by mail or in person to AGAPE. A receipt
will be provided by AGAPE upon receipt of each payment.
Mother contends that the court failed to determine that the requirements under the
plans were reasonable and related to remedying the conditions which led to their
placement with AGAPE, and as a consequence, termination on this ground should be
reversed. We do not agree. As noted in the excerpts from the plans quoted above,
specific concerns, all related to the reason the children came into AGAPE’s custody,
were identified; in the two latter plans, Mother’s areas of noncompliance were identified.
The Magistrate that ratified each plan attested that “[t]he responsibilities outlined in the
plan are reasonably related to the achievement of this goal, are related to remedying the
conditions that necessitated foster care, and are in the best interest of the child(ren).” As
noted in In re Valentine, notwithstanding the failure of the trial court to make a specific
finding of the reasonableness of Mother’s responsibilities as part of the order of
termination, we review the issue de novo, 79 S.W.3d at 547; upon our review, we
conclude that the requirements of the plan were reasonably related to remedying the
conditions that necessitated AGAPE’s involvement, particularly those responsibilities
imposed on Mother, detailed above, that specifically addressed her lack of income and
the stability necessary to provide a home for herself and four children, all with special
needs.8
Mother does not argue that the findings quoted above are not supported by clear
and convincing evidence or cite to evidence which preponderates against the findings;
upon our review, there is ample testimony from the witnesses associated with AGAPE, as
well as from the children’s teachers, to support the specific findings, as well as the
significance of Mother’s failure to comply with the plan. Upon our review, we conclude
that the record contains evidence that clearly and convincingly establishes Mother’s
substantial noncompliance with the permanency plans.
C. Persistence of Conditions
Parental rights may be terminated on the basis of “persistence of conditions,” as
defined by Tennessee Code Annotated section 36-1-113(g)(3)(A), when:
8
In this regard, we reject Mother’s argument that “[i]t is counter-intuitive for the trial court, AGAPE or
the Guardian ad litem to argue that the mother failed to comply with the requirements of the permanency
plan when they returned [Antonio] home.” Antonio was successfully placed with Mother following a 90-
day trial placement; his return had no effect on the requirements of the plan relative to Mother and the
other children.
20
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;
A termination proceeding based on the persistence of conditions ground requires a
finding by clear and convincing evidence of all three statutory factors. In re Valentine, 79
S.W.3d at 550. With respect to this ground, this Court has held that “Tenn[essee] Code
Ann[otated] [section] 36-1-113(g)(3) applies as a ground for termination of parental
rights only where the prior court order removing the child from the parent’s home was
based on a judicial finding of dependency, neglect, or abuse.” In re Audrey S., 182
S.W.3d at 874.
In concluding that termination on the ground of persistence of conditions was
warranted, the court made the following factual finding:
23. The children have been removed from the home by an Order of this
court since May 2012, and prior to that were in AGAPE’s physical care
since June 2011 due to the willful placement of the children in the care of
AGAPE by Respondent-Mother. In the six years which have passed since
the children were placed in AGAPE’s care, they have been unable to return
home due to a persistence of the conditions which led to their removal.
There is little likelihood the conditions will change substantially enough for
the children to return to Respondent-Mother’s custody in the near future.
Mother first contends that the children were not removed from her home, as
required by the statute; second, she argues that the record does not support a finding of
persistence of conditions; third, she contends that AGAPE’s caseworker acknowledged at
trial that there were no conditions which prevented the children from returning to
21
Mother’s home. Mother seeks a reversal of this ground or, alternatively, that the case be
remanded for further consideration.9
As to Mother’s first argument, the record shows that the court entered an order on
May 8, 2012, finding, inter alia, that:
[Mother] voluntarily placed the said children into temporary foster care
with AGAPE as she does not have stable, suitable housing in which she and
her children can live; she is unemployed and has no income to financially
support herself and her children; and she has no extended family that can
provide daily care and supervision of the children.
The court further held that it was not in the children’s best interest to be returned to
Mother and that it was in their best interest that AGAPE have temporary legal custody of
them.
Another order entered on August 23, 2012, approving the initial permanency plan
again stated, inter alia, that “it is against the best interests of the minor children to be
returned to their parent(s) at this time, and that it is in the best interests of the minor
children to continue in the custody of AGAPE.” In the Order of Adjudication entered
December 13, 2012, the court determined that the children “are dependent and neglected
pursuant to Tenn, Code Ann. § 37-1-102(b)(12)(F) due to the fact that the mother is
unable to care for the children without the assistance of others”; the court approved an
agreement that the children remain in AGAPE’s custody and that they begin staggered
ninety day home placements with Mother. There is no basis for Mother’s argument that
the children were not removed from her home because she voluntarily placed them with
AGAPE. The children came within the breast of the court when AGAPE filed its petition
seeking a declaration that they be declared dependent and neglected and that custody be
placed with that agency. The orders were consistent with the court’s authority and
responsibility under the statute and satisfied the requirement that the child be removed
from the parent’s home by order of the court.
Many of the trial court’s findings as to Mother’s non-compliance with the
permanency plans apply equally to the ground of persistence of conditions and address
Mother’s second argument. Succinctly put, Mother placed the children with AGAPE in
June of 2011, and the same conditions which led to their placement were present when
the court rendered its decree six years later, save only that Mother had secured a place to
live. We have reviewed the snippet of the testimony of Ms. Corwin of AGAPE that
9
Specifically, Mother desires the case to be remanded for the trial court to “explain (1) what Order it is
relying on in making its finding that the children were removed; (2) what condition existed at the time of
removal; and (3) what condition persists at the time of trial preventing return of the children to the
mother’s custody.”
22
Mother cites in support of her argument that no conditions persisted which prevented the
children from being returned to Mother’s home as of the date of trial and, considered in
context, do not agree that it supports her argument. The dialogue between counsel and
the witness took place during Ms. Corwin’s cross-examination, in the midst of numerous
and lengthy objections, when Ms. Corwin was asked about the requirements of the
permanency plans; the testimony relied upon by Mother is best considered in an extended
context:
Q. And as far as the other grounds, you claim substantial non-
compliance with the perm plan; correct?
A. Yes.
Q. And that’s on paragraph 21; correct?
A. Yes.
Q. Let’s talk about [Mother]’s responsibilities under the perm plan.
Right now -- you said earlier that you don’t know of any conditions
that prevent the children from returning to the mother; correct?
A. Yes.
Q. And the primary reason we have a perm plan is to address the
reasons that the children cannot return to the mother; correct?
A. I’m sorry. Could you state that one more time?
Q. Sure. The primary reason that we have a permanency plan is to
address the reasons that the child cannot return to the parent;
correct?
A. Yes.
Q. Because it outlines what the responsibilities are of the mother;
correct?
A. Yes.
Q. And it outlines the action steps to be taken by the mother; correct?
A. Yes.
Q. And it outlines the action steps to be taken by AGAPE; correct?
A. Yes.
Q. Well, answer me this. If there are no conditions that prevent the
children from returning to the mother, then what action steps are
necessary under the perm plan?
[AGAPE’s counsel]: Your Honor, is he talking now or
is he talking at the time we filed the petition? What time period is he
talking?
[Mother’s counsel]: I can limit it.
THE COURT: All right.
BY [Mother’s counsel]:
Q. At the time you filed your petition.
A. At the time we filed our petition -- could you rephrase the question?
23
Q. Sure. At the time that you filed your petition, there were no
conditions that prevented you from returning the children to the
mother’s home; correct? That’s what you said earlier.
A. I don’t believe that --
[AGAPE’s counsel]: Your Honor, I object to that. I
don’t think that’s what the record reflects.
[Mother’s counsel]: Okay. Well, I’ll ask.
BY [Mother’s counsel]:
Q. At the time that you filed your petition, there were no conditions that
prevented you from returning the children to the mother’s home;
correct?
A. Again, at the time that we filed our petition, I don’t know what
persist -- what conditions persisted, because I had asked for
verification of items that had never been received.
***
Q. Tell me, Ms. Corwin -- you cannot state what the conditions were
that prevented you from returning the children to the mother at the
time the petition was filed, can you?
A. No, not at this time.
***
Q. And today -- as of January 8th, 2016 -- you cannot state what
conditions prevented the children from returning to the mother’s
home at the time you filed your petition; is that correct?
A. I cannot make a definitive statement at this time.
Q. And as far as the substantial non-compliance with the perm plan --
again, the reason that we have a perm plan is to address the
conditions which prevent return to parent; correct?
A. Correct.
Q. So as the representative of AGAPE, why have a perm plan if there
are no conditions to remedy?
A. Because when the perm plan was implemented and ratified by the
Court, there were situations to be remedied.
Q. Okay. But as of today, there are no situations to be remedied;
correct?
A. I believe I’ve already testified that I believe that conditions do not
exist as of today; the three that we’ve discussed today.
Viewed in context, and in light of other clear and convincing proof that Mother had not
remedied the conditions that led to the children’s placement with AGAPE and the court’s
24
holding that the children were dependent and neglected, the foregoing testimony does not
establish, as Mother contends, that there were no conditions preventing the children’s
return.
D. Best Interest
Once a ground for termination has been proven by clear and convincing evidence,
the trial court must then determine whether it is in the best interest of the child for the
parent’s rights to be terminated, again using the clear and convincing evidence standard.
In re Valentine, 79 S.W.3d at 546. The legislature has set out a list of nine factors at
Tennessee Code Annotated section 36-1-113(i) for the courts to follow in determining the
child’s best interest. The list of factors in the statute “is not exhaustive, and the statute
does not require every factor to appear before a court can find that termination is in a
child’s best interest.” In re S.L.A., 223 S.W.3d 295, 301 (Tenn. Ct. App. 2006) (citing
Tenn. Dept. of Children’s Svcs. v. T.S.W., No. M2001-01735-COA-R3-CV, 2002 WL
970434, at *3 (Tenn. Ct. App. May 10, 2002); In re I.C.G., No. E2006-00746-COA-R3-
PT, 2006 WL 3077510, at *4 (Tenn. Ct. App. Oct. 31, 2006)).
The court’s entire discussion of best interest is:
Having determined grounds exists for terminating Respondent-Mother’s
parental rights, the Court has further determined that to do so is in the best
interest of the children. The Court has considered the non-exclusive factors
found at T.C.A. §36-1-113(i) and makes the following findings by clear and
convincing evidence:
1. Pursuant to T.C.A. § 36-1-113(i)(1), the Respondent-Mother has not
made an adjustment of circumstances, conduct or conditions so as to make
it safe and in the children’s best interest to be in either of their homes. After
more than six (6) years in AGAPE’s care, the Respondent-Mother was not
prepared on the day of trial to assume custody of the children.
2. Pursuant to T.C.A. § 36-1-113(i)(2), the Respondent-Mother failed to
effect a lasting adjustment after reasonable efforts by available social
agencies for such duration of time that lasting adjustment does not
reasonably appear possible.
3. Pursuant to T.C.A. § 36-1-113(i)(3), Respondent-Mother has not
maintained consistent, regular visitation or other contact with the children.
4. A change of caretaker and physical environment is likely to have a
negative effect on the children’s emotional, psychological and/or medical
condition pursuant to T.C.A. § 36-1-113(i)(5). The children currently reside
in a foster home that is able to meet their individual medical, emotional,
and educational needs. This is fundamental to the emotional, psychological,
and medical well-being of the children.
25
Thus, the Court finds that the Petitioners, The Association for Guidance,
Aid, Placement, and Empathy, Inc. and the Guardian ad litem, Ronke
Kehinde, have proven by clear and convincing evidence that all the parental
rights of said Respondent, [Mother], to said children be forever terminated;
and therefore the complete custody, control, and guardianship of said
children is hereby awarded to The Association for Guidance, Aid,
Placement, and Empathy, Inc., with the right to place said children up for
adoption and to consent to said adoption in loco parentis.
In her brief on appeal, Mother argues that the court ignored evidence relevant to
the factors for which the court did not make a finding. As noted previously, the Guardian
ad litem and AGAPE agree that the case should be remanded for the court to make
findings as to the five additional statutory best interest factors. While it is not necessary
that the court find that all nine factors weigh in favor of a finding that termination of
Mother’s rights is in the children’s best interest, in our review of the court’s
determination in this case, it is important for this court to understand whether the trial
court considered the other five factors to not be applicable, to be neutral or as militating
against a holding that termination was in the children’s best interest; if the court did
consider the factors, the court should state the extent to which it weighed the factor in its
analysis. For this reason, we vacate the best interest determination and remand the case
for the court to make additional findings as to the other factors. To the extent
appropriate, the court should make a fresh determination that the evidence clearly and
convincingly supports a conclusion that termination of Mother’s rights is in the children’s
best interest.
III. CONCLUSION
For the foregoing reasons, we affirm the determination that he evidence
established the grounds of abandonment by failure to visit, substantial non-compliance
with the permanency plans, and persistence of conditions; we vacate the holding that
termination of mother’s rights is in the best interest of the children and remand the case
for further consideration in accordance with this opinion.
_________________________________
RICHARD H. DINKINS, JUDGE
26