Tennessee Reports
Unpublished
STATE v. C.M.B., E2006-00841-COA-R3-PT (Tenn.Crim.App.
12-13-2006) STATE OF TENNESSEE DEPARTMENT OF CHILDREN’S
SERVICES v. C.M.B. No. E2006-00841-COA-R3-PT. Court Of
Appeals Of Tennessee, At Knoxville, Assigned on Briefs
October 27, 2006. Filed December 13, 2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Appeal from the Juvenile Court for Knox
County No. 61828 Timothy Irwin, Judge.
Appeal as of Right; Judgment of the Juvenile Court
Affirmed; Case Remanded.
Ben H. Houston, II, Knoxville, Tennessee, for the
appellant, C.M.B.
Michael E. Moore, Acting Attorney General and Reporter, and
Amy T. McConnell, Assistant Attorney General, Nashville,
Tennessee, for the appellee, State of Tennessee Department
of Children’s Services.
B. Gail Howell, Maryville, Tennessee, Guardian Ad Litem for
D.N.H., A.T.B., D.D.B., D.M.B., and S.M.B.
CHARLES D. SUSANO, JR., J., delivered the opinion of the
court, in which D. MICHAEL SWINEY and SHARON G. LEE, JJ.,
joined.
OPINION
CHARLES D. SUSANO, JR., JUDGE.
The trial court terminated the parental rights of C.M.B.
(“Mother”) with respect to her five minor children: D.N.H.
(DOB: December 31, 1994), A.T.B. (DOB: March 7, 1997),
D.D.B. (DOB: February 2, 1998), D.M.B. (DOB: January 31,
2000), and S.M.B. (DOB: February 21, 2002) (collectively
“the children”). The court did so after finding, by clear
and convincing evidence, that grounds for termination
existed and that termination was in the best interest of
the children. Mother appeals. We affirm.
I.
On June 25, 2004, the Tennessee Department of Children’s
Services (“DCS”) filed a petition for temporary custody of
the children, alleging that Mother and J.A.Y., the father
of the two youngest children, had a history of domestic
violence in the presence of the children. The petition
details an incident in February, 2004, dealing with a
domestic violence event involving Mother and J.A.Y. When
the police responded to a call, they found crack cocaine
within the reach of the children. On that occasion, DCS,
instead of removing the children, assigned Mother a case
management agent, who referred her to resources equipped to
help her with domestic violence and substance abuse issues.
The petition further states that the police were summoned
again on June 24, 2004, at which time Mother was the victim
of domestic violence at the hands of J.A.Y. at a time when
some of the children were present. On that date, the
children were removed from the custody of Mother on an
emergency basis. At a hearing on September 20, 2004, the
trial court adjudicated the children to be dependent and
neglected based upon clear and convincing proof. DCS was
awarded temporary custody of the children.
In July, 2004, DCS prepared a permanency plan for each of
the five children. The plans were identical. The goal of
the plans was Mother’s reunification with the children.
Mother was required by the plans to accomplish the
following by January 12, 2005: (1) attend and complete
counseling to address issues of domestic violence, anger
management, and loss of her children; (2) complete an
alcohol and drug assessment and remain drug-free; (3)
resolve all pending criminal charges; (4) attend necessary
court dates regarding criminal charges; (5) follow the
rules of her probation; (6) follow all court orders; (7)
attend scheduled visitation with her children; (8) pay
child support; and (9) meet the basic requirements of a
parent having a child in DCS custody, including to (a)
cooperate with DCS and all service providers, (b) contact a
DCS worker at least twice a month, (c) inform DCS of any
changes in her circumstances within five days, and (d)
attend meetings, staffings, and court hearings related to
her children. On August 11, 2004, the trial court found
these requirements to be reasonable and ratified the
permanency plans.
On July 6, 2005, DCS staffed its second set of permanency
plans[fn1] in this case. The goal of the plans had changed
from a single goal to dual goals: adoption and
reunification. In order to be reunified with her children,
Mother was required to accomplish the following by January
6, 2006: (1) attend and complete counseling to address
issues of domestic violence, anger management, and loss of
her children, and provide verification of such completion
to DCS; (2) continue to follow all recommendations from her
alcohol and drug assessment, remain drug-free, and provide
documentation of random drug screens to DCS; (3) complete a
diagnostic interview to determine the extent of any mental
health issues, follow all recommendations from this
interview, and provide documentation to DCS; (4) continue
to follow and abide by all rules of her probation; (5)
follow all court orders; (6) obtain and maintain a legal
source of income and stable housing; (7) obtain and
maintain access to reliable and legal transportation; (8)
pay child support; and (9) meet the basic requirements of a
parent having a child in DCS custody, including to (a)
cooperate with DCS and all service providers, (b) contact a
DCS worker at least twice a month, (c) inform DCS of any
changes in her circumstances within five days, and (d)
attend meetings, staffings, and court hearings related to
her children. The trial court ratified the second set of
permanency plans on August 24, 2005.
On September 14, 2005, DCS filed a petition to terminate
the parental rights of Mother, on multiple grounds:
abandonment by failure to provide a suitable home;
abandonment by failure to support; persistence of
conditions; and substantial non-compliance with the
permanency plans. This petition also included allegations
relating to the February, 2004, domestic violence call when
the police found cocaine within the reach of the children.
Following a hearing on February 7, 2006, the trial court
terminated the parental rights of Mother, finding clear and
convincing evidence to support the following grounds for
termination: persistent unremedied conditions and
substantial non-compliance with the permanency plans. The
trial court also found by clear and convincing evidence
that termination was in the best interest of the children.
In its final judgment, entered on March 8, 2006, the trial
court found in pertinent part as follows:
These children were removed from their mother’s care due
to a history of domestic violence and substance abuse. For
several months prior to their removal [DCS] had attempted
to get [Mother] into substance abuse treatment but she
failed to cooperate with those efforts. She has incurred
criminal charges related to her drug use. She admitted
smoking marijuana and cocaine was found in the house
within reach of the children. During this same time period
[Mother] was in an abusive relationship with [J.A.Y.], the
father of her youngest children. She tried to cover for
him, lying to [the DCS] case manager about his presence
in her home. The Court notes that portions of her
testimony today were untruthful or shaky at best.
The first permanency plan developed for [Mother] on July
12, 2004, required (among other things) that she (a)
complete counseling to address issues of domestic
violence, anger management, and the loss of her children;
(b) complete substance abuse treatment; and (c) comply
with the rules of her probation. That plan was to have
been completed within six (6) months. An updated plan was
developed a year later. The second plan required (among
other things) that she (a) complete the counseling
previously required; (b) complete substance abuse
treatment; (c) obtain a psychological assessment and
follow recommendations; and (d) obtain stable housing (a
requirement added because [Mother] had lost her home in
the interim). The second plan added the concurrent goal of
adoption due to the length of time the children had been
in foster care and [Mother’s] lack of progress. It was to
have been completed by January 6, 2006.
It is clear that [Mother] has made only minimal progress.
She has maintained employment but there is no evidence
that she has paid any child support. Just the day before
this hearing she signed a lease for a two-bedroom
apartment. Prior to that she was living in a hotel room
with rent paid, at least for a time, by [J.A.Y.]. As the
Guardian ad Litem noted, this timing may show desperation
but it does not show compliance. [Mother] attempted to
participate in counseling for a couple months at two
separate facilities. According to her testimony, she
attended Center Pointe but was discharged and never went
back. She worked with Cathy Duncan at Child & Family for
a couple months but not recently. She has visited
faithfully. It is obvious that she loves her children, in
her own way, but there is more to being a mother than
loving. It is [Mother’s] inactivity and her non-compliance
that produces the results here.
The Court cannot find one area of risk where there has
been improvement; the risk to these children in their
mother’s care remains exactly the same now as it was the
day they were removed. When asked why her children are in
foster care, [Mother] stated that it was because
“somebody called on me”. When asked what she needed to do
to regain custody, she stated that she needed to keep a
job and “stay focused”, meaning “go to classes.” She has
not taken any responsibility for the substance abuse and
domestic violence that placed her children at risk and led
to their removal. She testified that she did not really
need substance abuse treatment, counseling or anger
management classes and, to the extent that she
participated, was doing so only because they were on her
plan. She stated that she does not have a drug problem and
that she does not see it as a problem, yet has not stopped
smoking marijuana. She failed fifteen of the sixteen
weekly drug screens administered by [DCS] since September
2005 and was jailed during the last year for violating her
probation by failing a drug screen. She failed to complete
either substance abuse treatment or individual
counseling/domestic violence treatment and has not
participated in any treatment for several months despite
knowing that this hearing was set. Nevertheless, she
admitted being suspended from GED classes due to her
anger, wanting to “do something” to the person who
suspended her, and “cutting” [J.A.Y.] during an argument.
Beginning in the months before these children were
removed [DCS] visited [Mother] frequently, offered
services, and pointed her in the right direction. It is
obvious that she was aware of services available to her
and took advantage of some of them at least on a temporary
basis. We fight so hard to get people into treatment, it
is really disappointing when they actually do get in and
then don’t make it. [Mother] had several opportunities to
participate in treatment but failed to take advantage of
those opportunities. She was advised repeatedly that she
needed to make significant progress within a year and
that failure to do so could result in termination of her
parental rights. Her case manager had those conversations
with her and made sure that she knew how to access the
treatment programs required of her. She attended Foster
Care Review Board where her progress on the plan
requirements was again reviewed. The Board reminded her
that time was of the essence and asked if she needed any
assistance; she acknowledged that she knew what she needed
to do, understood the consequences of failing to comply,
and did not need any other help.
Upon those facts, the Court finds that these children
have been removed for a period of six (6) months; the
conditions which led to their removal still persist; there
is little likelihood that these conditions will be
remedied at an early date so that these children can be
returned to [Mother] in the near future; the continuation
of the legal parent and child relationship greatly
diminishes the children’s chances of early integration
into a stable and permanent home.
The Court further finds that the responsibilities set out
in the permanency plans were directly and reasonably
related to the conditions which necessitated foster care
placement and that [Mother] has failed to comply in a
substantial manner with those reasonable responsibilities.
[Mother] has not made such an adjustment of circumstance,
conduct, or conditions as to make it safe and in the
children’s best interest to be in her home despite
reasonable efforts by available social services agencies
for such duration of time that lasting adjustment does
not reasonably appear possible. She has shown neglect
toward these children and has exposed them to an
environment of domestic violence. The children now feel
safe and a change of caretakers and physical environment
is likely to have a detrimental effect on their emotional
and psychological condition. [Mother] continues to
engage in criminal activity through her continued
substance abuse.
(Numbering in original omitted).
II.
The law is well established that “parents have a
fundamental right to the care, custody, and control of
their children.” In re Drinnon, 776 S.W.2d 96, 97
(Tenn.Ct.App. 1988) (citing Stanley v. Illinois, 405 U.S.
645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)). This right,
however, is not absolute and may be terminated if there is
clear and convincing evidence justifying termination under
the pertinent statute. Santosky v. Kramer, 455 U.S. 745,
102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Clear and
convincing evidence is evidence that “eliminates any
serious or substantial doubt concerning the correctness of
the conclusions to be drawn from the evidence.” O’Daniel v.
Messier, 905 S.W.2d 182, 188 (Tenn.Ct.App. 1995).
III.
In cases involving the termination of parental rights, the
objectives of our de novo review are somewhat different
from our review of a typical bench trial. The difference is
addressed in our case of In re M.J.B., in which we said the
following:
Because of the heightened burden of proof required by
Tenn. Code Ann. § 36-1-113(c)(1), we must adapt
Tenn. R. App. P. 13(d)’s customary standard of review for
cases of this sort. First, we must review the trial
court’s specific findings of fact de novo in accordance
with Tenn. R. App. P. 13(d). Thus, each of the trial
court’s specific factual findings will be presumed to be
correct unless the evidence preponderates otherwise.
Second, we must determine whether the facts, either as
found by the trial court or as supported by the
preponderance of the evidence, clearly and convincingly
establish the elements required to terminate a biological
parent’s parental rights.
140 S.W.3d 643, 654 (Tenn.Ct.App. 2004) (citations omitted).
As can be seen from the above, our determination regarding
the issue of whether “the facts, either as found by the
trial court or as supported by the preponderance of the
evidence, clearly and convincingly establish the elements
required to terminate a biological parent’s parental rights”
is a question of law. Hence, with respect to this latter
aspect of our review, we accord no presumption of
correctness to the trial court’s judgment. Southern
Constructors v. Loudon County Bd. of Educ., 58 S.W.3d 706,
710 (Tenn. 2001).
IV.
T.C.A. § 36-1-113(g) lists the grounds upon which
parental rights may be terminated, and “the existence of
any one of the statutory bases will support a termination
of parental rights.” In re C.W.W., 37 S.W.3d 467, 473
(Tenn.Ct.App. 2000). The issues raised in the pleadings, and
the trial court’s findings, implicate the following
statutory provisions:
T.C.A. § 37-1-147 (2005)
(a) The juvenile court shall be authorized to terminate
the rights of a parent or guardian to a child upon the
grounds and pursuant to the procedures set forth in title
36, chapter 1, part 1.
* * *
T.C.A. § 36-1-113 (Supp. 2006)
(a) The chancery and circuit courts shall have concurrent
jurisdiction with the juvenile court to terminate parental
or guardianship rights to a child in a separate
proceeding, . . . by utilizing any grounds for termination
of parental or guardianship rights permitted in this part
or in title 37, chapter 1, part 1 and title 37, chapter
2, part 4.
* * *
(c) Termination of parental or guardianship rights must
be based 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) That termination of the parent’s or guardian’s rights
is in the best interests of the child.
* * *
(g) Initiation of termination of parental or guardianship
rights may be based upon any of the following grounds:
* * *
(2) There has been substantial noncompliance by the
parent or guardian with the statement of responsibilities
in a permanency plan or a plan of care pursuant to the
provisions of title 37, chapter 2, part 4;
(3) 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.
* * *
T.C.A. § 37-2-403 (2005)
(a)(1) Within thirty (30) days of the date of foster care
placement, an agency shall prepare a plan for each child
in its foster care. . . .
* * *
(2)(A) The permanency plan for any child in foster care
shall include a statement of responsibilities between the
parents, the agency and the caseworker of such agency.
Such statements shall include the responsibilities of
each party in specific terms and shall be reasonably
related to the achievement of the goal specified [in the
plan]. . . .
* * *
(C) Substantial noncompliance by the parent with the
statement of responsibilities provides grounds for the
termination of parental rights, notwithstanding other
statutory provisions for termination of parental rights. .
. .
V.
Mother appeals and raises three issues for our
consideration:
1. Did the trial court err by relying on inadmissible
hearsay evidence despite the objection of Mother’s trial
counsel?
2. Did the trial court err by terminating Mother’s
parental rights even though DCS failed to make reasonable
efforts to reunify the children with Mother?
3. Did the trial court err when it found clear and
convincing evidence that it was in the best interest of
the children to terminate Mother’s parental rights?
We will address each of these issues in turn.
VI.
Mother first contends that the trial court erred by relying
on inadmissible hearsay evidence despite the objections of
her trial counsel.
At the hearing, Ginger McBrayer, a DCS case manager
assigned to this case, was asked to read into evidence the
records kept by a previous DCS case management agent.
Mother’s trial counsel promptly objected:
Mr. Anen [Mother’s counsel]: Your Honor, I’m going to
object. If there’s a witness that is here, that could be
here or should be here, we would like to have direct
testimony from them rather than referring to something
that I can’t technically cross-examine.
The Court: I’m going to overrule the objection on the
business records exception. I’m sure that it would be
great if we could have everyone that worked on this matter
and maybe fill this room, but I’m going to allow her to
proceed with this witness.
With the trial court’s permission, Ms. McBrayer read
several pages directly from the previous agent’s records.
Then, the trial court interrupted the testimony and the
following exchange occurred:
The Court: Stop just a second. Where is this person?
Ms. Kovac [DCS counsel]: The person who is reporting
this?
The Court: Yes, the second person.
Ms. Kovac: Our employee?
The Court: Yes. Does she still work for you?
Ms. Kovac: I don’t believe so, Your Honor. It was the
targeted case management agent.
The Court: How many more people are we going to hear
from?
Ms. Kovac: This is it.
The Court: You know, the Defense makes a pretty good
objection. I’m letting it come in under the records
exception —
Ms. Kovac: And that’s why we’re reading it rather than
—
The Court: I understand, and I’m also going to encourage
you to bring witnesses when possible, and also if you
can’t bring witnesses, you need to be prepared to bring
the custodian of the records, one or the other.
Ms. Kovac: This is the custodian of the records, Your
Honor.
The Court: Are you the custodian of these records?
The Witness [Ms. McBrayer]: Yes.
The Court: All right. I just wanted to make sure we’re
clear on that because Mr. Anen had a good, valid
objection. Otherwise we’re on a higher standard on a
termination proceeding than we are on custody.
Ms. Kovac: I understand, Your Honor.
The Court: I mean, I can let reliable hearsay in on a
72-hour hearing, but I can’t here.
Ms. Kovac: Plus, Your Honor, all of these are recorded
statements.
The Court: I understand that. Let’s just make sure in the
future that we always have either the custodian like we do
here or the witnesses.
In her brief, Mother points out that, in order for these
records to be admissible under the business records
exception, DCS had to demonstrate that the records were
made at or near the time of the incidents reported in the
records, and that the records were created by someone with
a business duty to record or transmit the records during
the course of a regularly conducted business activity.
Mother argues that DCS failed to demonstrate either of
these requirements and therefore the trial court erred by
admitting these records into evidence through the testimony
of another DCS case manager. Moreover, Mother maintains
that this error was critical because the trial court relied
upon inadmissible evidence from these records in
determining that DCS had proven grounds for termination by
clear and convincing evidence. Specifically, the trial court
made a reference in its final judgment, as well as in its
comments from the bench at the conclusion of the proof,
that cocaine was found within the reach of the children.
Mother argues that “[o]ther than the inadmissible hearsay
introduced by [DCS] there is no evidence in the record to
support this uncorroborated yet highly prejudicial
allegation.”
A hearsay statement is “a statement, other than one made by
the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter
asserted.” Tenn. R. Evid. 801(c). Such a statement is not
admissible unless it is shown to be admissible “as provided
by the[] rules [of evidence] or otherwise by law.” Tenn. R.
Evid. 802. Tenn. R. Evid. 803(6) covers the hearsay
exception for records of regularly conducted activity. This
rule requires that the record be “made at or near the time
by or from information transmitted by a person with
knowledge and a business duty to record or transmit if kept
in the course of a regularly conducted business activity and
if it was the regular practice of that business activity to
make the . . . report . . ., all as shown by the testimony
of the custodian or other qualified witness. . . .” Tenn.
R. Evid. 803(6).
The trial court correctly noted that the subject testimony
fits the definition of hearsay. Tenn. R. Evid. 801. While
the business records exception provided in Tenn. R. Evid.
803(6) may have been applicable under these circumstances,
we find that DCS failed to lay a proper foundation for the
admission of these records into evidence. The manner in
which the witness was asked about these records and the
exchange between DCS counsel and the trial court, as
illustrated above, is simply insufficient.
While we find that the trial court erred by admitting the
records under the business records exception of Tenn. R.
Evid. 803(6), we do not conclude that such error is
reversible. Tenn. R. App. P. 36(b) instructs that “[a]
final judgment from which relief is available and otherwise
appropriate shall not be set aside unless, considering the
whole record, error involving a substantial right more
probably than not affected the judgment or would result in
prejudice to the judicial process.” Considering this
standard and viewing the record as a whole, we hold that
the error was harmless because the trial court’s reliance on
the allegation that cocaine was found within the reach of
the children did not more probably than not affect the
outcome in this case. As detailed in its final judgment,
the trial court, in terminating Mother’s parental rights,
relied upon many other facts — in addition to the
cocaine incident. We hold that the improperly-admitted
evidence pertaining to cocaine is not an error that
probably affected the trial court’s judgment or one that,
if uncorrected, “would result in prejudice to the judicial
process.” Tenn. R. App. P. 36(b). This issue is found
adverse to Mother.
VII.
Next, Mother argues that the trial court erred by
terminating her parental rights because, according to her,
DCS failed to make reasonable efforts to reunify her with
the children. In discussing this issue, we note at the
outset that Mother does not appear to be challenging the
grounds for the termination of her parental rights, i.e.,
persistent unremedied conditions and substantial
non-compliance with the permanency plans. Nevertheless, in
the interest of justice, we have reviewed the record
pertaining to these unchallenged grounds for terminating
Mother’s parental rights. We conclude that the evidence
does not preponderate against the trial court’s findings of
fact that support these grounds for termination. These
findings, as a matter of law, demonstrate termination
grounds clearly and convincingly.
In a parental termination case, the issue of reasonable
efforts is addressed within the best interest framework of
T.C.A. § 36-1-113(i). See In re A.W., 114 S.W.3d
541, 545 (Tenn.Ct.App. 2003). Subsection (2) of this
statute provides as follows:
In determining whether termination of parental or
guardianship rights is in the best interest of the child
pursuant to this part, the court shall consider, but is
not limited to, the following:
* * *
(2) Whether the parent or guardian has failed to effect a
lasting adjustment after reasonable efforts by available
social services agencies for such duration of time that
lasting adjustment does not reasonably appear possible[.]
T.C.A. § 36-1-113(i)(2).
The evidence in the record is clear that DCS made
reasonable efforts to assist Mother with domestic violence
issues, substance abuse, anger management, and housing
issues in order to facilitate the return of her children.
Ms. McBrayer, the DCS case manager assigned to this case,
provided Mother with a list of substance abuse treatment
resources and personally discussed them with her. Ms.
McBrayer also gave Mother bus passes because she did not
have her own transportation. Mother was discharged from the
Women’s Intensive Outpatient Program at Center Point for
failure to comply with treatment recommendations and failure
to demonstrate improvement. At the Child and Family
Tennessee Program, Mother stopped attending both individual
therapy and drug treatment after she was incarcerated, and
she also refused to take prescribed medication for
depression. Ms. McBrayer repeatedly informed Mother that
she must complete these programs and provide documentation
of completion by a certain deadline in order to get custody
of her children. Mother acknowledged that she knew she had
to meet numerous requirements under the permanency plans in
order to get her children back. Although Mother attended
some programs sporadically, she never completed the
programs and never provided documentation of completion to
DCS.
Ms. McBrayer also stated that she provided Mother with a
community resources list and informed her about places
where she could get housing. Ms. McBrayer testified that
Mother acted like she did not want any help in finding
housing and insisted that J.A.Y., her “babies’ daddy,” was
paying for her to stay at a hotel. According to Ms.
McBrayer, Mother was not cooperative in talking to her,
explaining that Mother would often wear headphones during
their meetings. In addition, Ms. McBrayer stated that
Mother did not keep DCS informed of her whereabouts.
We note Mother’s testimony that DCS made no efforts to find
housing for her. According to Mother, upon asking Ms.
McBrayer for help with housing, Ms. McBrayer said she would
help find housing for her children but not for her. The
trial court specifically found that Mother’s testimony was
not credible.The credibility of witnesses is a matter that
is peculiarly within the province of the trial court, see
Bowman v. Bowman, 836 S.W.2d 563, 567 (Tenn.Ct.App. 1991),
and therefore determinations regarding witness credibility
are entitled to great weight on appeal. See, e.g.,
Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn.Ct.App.
1995). With respect to the issue of housing, Mother also
testified that she signed a lease for a two bedroom
apartment the day before the hearing in this matter. The
trial court agreed with the guardian ad litem’s observation
that “this timing may show desperation but it does not show
compliance.”
Given this proof, we do not find that the evidence
preponderates against the trial court’s finding that DCS
made reasonable efforts to reunify the children with
Mother. As we have previously stated, “[t]he statute does
not require a herculean effort on the part of DCS,” but
rather that DCS “make `reasonable efforts.'” State Dep’t of
Children’s Servs. v. Malone, No. 03A01-9706-JV-00224, 1998
WL 46461, at *2 (Tenn.Ct.App. E.S., filed February 5,
1998).
In support of her position on the issue of reasonable
efforts, Mother cites the case of In re J.L.E., No.
M2004-02133-COA-R3-PT, 2005 WL 1541862 (Tenn.Ct.App. M.S.,
filed June 30, 2005). Mother’s brief makes the following
argument in reference to this case:
Reasonable efforts must “entail more than simply
providing parents with a list of service providers and
sending them on their way.” [DCS] “employees must use
their superior insight and training to assist parents with
the problems the Department has identified in the
Permanency Plan, whether the parents ask for assistance or
not.” Furthermore, this Court has strongly cautioned
[DCS] against filing a petition to terminate parental
rights well in advance of the expected achievement date
set forth in a permanency plan in the absence of
extraordinary circumstances. Such “concerns are based on
the fundamental unfairness inherent in providing the
parent of notice of one set of expectations and acting
inconsistently with that notice.”
(Citations from In re J.L.E. omitted). While the general
principles noted by Mother, as reflected in In re J.L.E.,
still hold true, it is important to point out that the
Court of Appeals in In re J.L.E. specifically stated that
the efforts of DCS “under some situations . . . may be
perfectly reasonable.” Id., at *14. In that litigation, the
Court was faced with a mildly mentally retarded mother who
had comprehension difficulties. In the instant case, which
is easily distinguishable, there is no evidence that Mother
had a low IQ and could not comprehend what she needed to
accomplish in order to ensure the return of her children.
In fact, as noted previously, Mother admitted in her
testimony that she understood that she must meet numerous
requirements under the permanency plans in order to get her
children back. Moreover, although DCS did file for
termination approximately four months before the expected
date of completion of the second set of permanency plans, it
is apparent that Mother repeatedly failed to comply with
numerous plan requirements for over a year before the
petition was filed and that there was nothing that stood in
her way of working towards meeting the requirements even
after the petition was filed in an attempt to demonstrate
why the termination hearing should be postponed.
We hold that Mother’s second issue is without merit.
VIII.
Finally, Mother contends that the trial court erred by
finding clear and convincing evidence that it was in the
best interest of the minor children to terminate her
parental rights.
The factors a trial court must consider when deciding
whether the termination of parental rights is in the best
interest of a child are set forth in T.C.A. §
36-1-113(i):
(1) Whether the parent or guardian has made such an
adjustment of circumstance, conduct, or conditions as to
make it safe and in the child’s best interest to be in the
home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a
lasting adjustment after reasonable efforts by available
social services agencies for such duration of time that
lasting adjustment does not reasonably appear possible;
(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 or controlled substances as may render the
parent or guardian consistently unable to care for the
child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or
emotional status would be detrimental to the child or
prevent the parent or guardian from effectively providing
safe and stable care and supervision for the child; 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.
This list is “not exhaustive,” and there is no requirement
that every factor must appear “before a court can find that
termination is in a child’s best interest.” Dep’t of
Children’s Servs. v. T.S.W., No. M2001-01735-COA-R3-CV,
2002 WL 970434, at *3 (Tenn.Ct.App. M.S., filed May 10,
2002).
In its final judgment, the trial court stated that
termination of Mother’s parental rights was in the best
interest of her five children. In considering the best
interest of the children in this case, we, of course, rely
upon the proof set forth in detail earlier in this opinion.
To summarize, Mother repeatedly failed to meet the
permanency plans edicts that she successfully address
domestic violence issues, substance abuse, anger
management, and housing issues.
In addition, although Mother testified that she had been
employed at fast food restaurants almost the entire time
her children were in DCS custody, there is no evidence that
she paid child support as required under her plans. See
T.C.A. § 36-1-113(i)(9). Most significantly, Mother
was unable to remain drug-free throughout the pendency of
this matter. According to Ms. McBrayer, Mother failed 15 of
the 16 weekly drug screens that were administered to her.
Mother tested positive for marijuana use on all of those
occasions, and she also tested positive for methamphetamine
use on the test given just over a month before the hearing
in this matter. The drug screen failures resulted in Mother
violating her probation and having to serve jail time. We
further note that Mother denies having a drug problem
despite the overwhelming proof that she does have one. The
evidence is clear that the children would not be in a
healthy and safe physical environment if they returned to
Mother’s custody because she continues to engage in criminal
activity through the use of illegal substances such that
she may be consistently unable to care for the children in
a safe and stable manner. See T.C.A. §
36-1-113(i)(7).
All five of Mother’s children have been in the same foster
care home since their initial removal in June, 2004. In his
role as therapeutic foster care specialist, Jason Rudd
visited the children weekly and notes that the children
have bonded well with their foster parents, who wish to
adopt all of the children. Mr. Rudd also stated that the
children’s behavior problems have resolved and that they
are doing well in school. We find that a change in
caretakers at this time, i.e., returning the children to
the care of Mother, would likely have a profoundly negative
emotional and psychological impact on the children. See
T.C.A. § 36-1-113(i)(5).
Finally, as did the trial court, we note that Mother
faithfully visited her children during the entire time they
were in DCS custody, except for periods when she was
incarcerated. See T.C.A. § 36-1-113(i)(3). Moreover,
it is clear that Mother loves her children, and Mr. Rudd
also noted a strong bond between Mother and her children.
See T.C.A. § 36-1-113(i)(4). However, in assessing
the children’s best interest, we cannot ignore evidence
from Mr. Rudd that a typical visit involved Mother giving
the children snacks, the children then wandering off, and
Mother “sometimes will follow, sometimes will sit in the
lobby, and sometimes she’s on the phone.” Mr. Rudd also
noted that the children are often more interested in
playing with their foster father, who has to prompt the
children to spend time with Mother. Ms. McBrayer also
confirmed that the children would be doing their own things
during visits and that Mother would not really engage them.
We agree with the trial court’s comment that “there is more
to being a mother than loving.”
We conclude that the evidence does not preponderate against
the trial court’s factual findings supporting its
conclusion that the termination of the parental rights of
Mother is in the best interest of the children.
Furthermore, we hold, as a matter of law, that those
findings support the trial court’s ultimate determination
clearly and convincingly.
IX.
The judgment of the trial court is affirmed and this matter
is remanded to that court for enforcement of its judgment
and for collection of costs assessed below, all pursuant to
applicable law. Costs on appeal are taxed against the
appellant, C.M.B.
[fn1] Once again there was a separate parenting plan for
each child; however, as with the original plans, these
plans contained identical requirements.