IN THE COURT OF APPEALS OF TENNESSEE 

 AT NASHVILLE 

July 2000 Session 

IN RE: K. A. H.

 Appeal from the Juvenile Court for Montgomery County 

 No. 73-155 Wayne C. Shelton, Judge 

 

 No. M1999-02079-COA-R3-CV - Filed July 21, 2000

This case involves the termination of parental rights regarding a child who was removed from the 

mother=s home by the Department of Children=s Services in 1996 and placed in foster care. DCS 

devised a Plan of Care for the mother, which, among other things, required her to address her drug 

and alcohol addictions. During the two years between the removal from the home and the filing by 

DCS of the petition to terminate parental rights, the mother made some efforts to improve her 

situation, but her substance abuse continued. The trial court terminated the mother=s parental rights 

on grounds (1) that the conditions that led to the child=s removal continued to persist with little 

likelihood of remedy and (2) that the mother failed to comply with the Statement of Responsibilities 

as provided in the Plan of Care. Because DCS has established grounds for termination and has 

established that termination is in the best interest of the child, we affirm. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed

PATRICIA J. COTTRELL, J., delivered the opinion of the court, in which BEN H. CANTRELL, P.J., M.S., 

and WILLIAM B. CAIN, J., joined. 

Gregory D. Smith, Clarksville, Tennessee, for the appellant, Gail Ann Heller. 

Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond, Assistant Attorney 

General, Nashville, Tennessee, for the appellee, Department of Children=s Services. 

OPINION

The child who is the subject of this proceeding was taken into custody in April 1996, after 

several referrals to the Department of Children=s Services (ADCS@) because of the mother=s

1

 apparent 

 1

The mother declined to name the child=s father. The child=s birth certificate is Asilent as to 

the name of the father@ and no person filed a notice of intent to claim paternity or acknowledgment 

of paternity with the Putative Father Registry. 
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neglect. DCS devised a Plan of Care, which, among other things, required the mother to address her 

drug and alcohol addictions. During the two years between the removal of the child from the home 

and the filing by DCS of the petition to terminate parental rights, the mother made some efforts to 

improve her situation, obtaining employment and a residence. She continued to maintain a 

relationship with the child. The mother=s substance abuse continued, however. In the interest of 

making permanent placement of the child possible, DCS initiated this termination proceeding. 

I. Background 

The child, K.A.H., a girl, was born in September 1994. She came to the attention of DCS 

because several people made referrals to DCS alleging that the mother was neglecting her. The first 

referral was made in February 1996, when someone reported a baby crying inside her home. Police 

investigated, believing the child to be abandoned, and found the mother present, but Apassed out.@ 

DCS began working with the mother, developing a APlan of Action@ to prevent the necessity of 

taking the child into state custody. The Plan of Action included a provision that the mother remain 

drug and alcohol free. The mother=s difficulties with drugs and alcohol continued, and additional 

referrals of her neglect were made to DCS.2

 The Department filed a petition to take the child into 

state custody in April 1996, when the mother, having left the child with a babysitter, was jailed for 

several days after being arrested while Awalking in the rain while intoxicated and/or high on drugs.@ 

After the mother=s release from jail, DCS began working with her, attempting to improve her 

parenting skills so that the child could be returned to her. DCS developed a APlan of Care,@

outlining the steps the mother needed to take before she could regain custody of her daughter. The 

steps included visiting the child regularly, having a drug and alcohol assessment, undergoing random 

drug and alcohol tests, and attending substance abuse treatment programs, counseling sessions, and 

parenting classes. 

 2

Other referrals were made because the mother picked the child up from daycare while 

intoxicated, failed to give the child her medicine when she was sick, and left the child alone in a car 

while she went to a bar and became intoxicated. 
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The mother maintained a job in food service throughout most of the time the child was in 

foster care, except when she was in jail or hiding from authorities.3 Her visits with the child were 

consistent, with the same two exceptions. No one disputed that the mother loved her daughter and 

that the two had Abonded.@ Early in the process, the mother was allowed unsupervised visitation, but 

her continued drug use made such visits impossible, so all later visits were supervised. The mother 

consistently took toys and clothes to the child at the visits, even though the foster care worker 

suggested that she could better spend the money improving her situation so the child could return to 

her. The mother=s interaction with the child was described as Aappropriate.@

DCS personnel worked with the mother consistently throughout the two and one half years 

the child was in custody. The foster care workers encouraged the mother to attend counseling 

sessions, parenting classes, and alcohol and narcotics users= support groups, even providing 

transportation and financial assistance when needed and appropriate. They described the mother=s 

tearful promises to do better in her efforts to stop abusing drugs, but the mother never followed 

through on her promises. She never had a drug and alcohol assessment, and did not inquire about 

obtaining one until immediately prior to the hearing. She went to a few Alcoholics Anonymous and 

Narcotics Anonymous meetings, but refused to attend any more. She consistently failed the drug 

tests, testing positive for cocaine and marijuana, until shortly before the hearing. Even three weeks 

prior to the hearing, the mother tested positive for Valium.4

 She admitted to having taken the drug, 

but claimed that she did not realize that Valium would show up on the drug test. 

The mother attended four sessions of a parenting class, but did not complete the program. 

She began counseling sessions with a psychologist, but stopped going to her sessions. The 

psychologist had referred her to a psychiatrist for her depression. The psychiatrist prescribed 

antidepressant drugs for the mother, but DCS refused to pay for additional prescriptions after the 

mother took all of the pills remaining in the bottle at one time. 

DCS filed the petition to terminate the mother=s parental rights in March 1998 based on the 

persistence of the conditions which led to the removal of the child from the home, and the mother=s 

failure to comply with the Plan of Care.5 After learning of the petition, the mother claimed she was 

Aserious this time@ about following the plan. She resumed the Alcoholics Anonymous meetings in 

 3

The mother was incarcerated for more than one instance of driving on a suspended license. 

She provided the police a false name, the name of a friend, once when she was stopped. She hid 

from authorities after the friend reported her. 

4

The mother did not have a prescription for Valium. She obtained the drug from a friend. 

5

In its Prayer for Relief, DCS also asked the court to find that the mother had abandoned the 

child. The mother had not visited the child between December 1997 and April 1998 because she was 

hiding from authorities and then incarcerated. DCS did not argue at trial that the mother had 

abandoned the child. 
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May 1998. She managed a few negative drug tests, but also tested positive for cocaine and Valium 

in the months after the petition was filed. The hearing for the termination of parental rights was held 

August 31, 1998. Following the presentation of the evidence, and noting the trial court=s concern 

about the continued drug use, the mother asked the court for Amore time.@

After hearing the evidence, the trial court terminated the mother=s parental rights, stating from 

the bench: 

You=ve had two-and-a-half years. It=s not a matter of fun and games with the child an 

hour a week. It=s a matter of not being on crack cocaine, not being on marijuana, not 

being high on alcohol, but being there at night when that child is sick; taking that 

child=s temperature when she has a fever; fixing supper for that child; fixing breakfast 

for that child. It=s those things of being a parent. It=s not just the fun and games. It=s 

the work. It=s the dedication. It=s the sacrifice. And that=s what you=re not willing to 

make. Your sacrifice is dedicated totally to your use of chemicals, your getting high, 

your party, your fun is much more important than that child. . . . Permanency for that 

child is what the Court has to look to. What=s the best permanent arrangement for 

that child to grow up and be a productive member of society. Depending on a mother 

for another six months, another two-and-a-half years and then five years of care have 

gone by hoping that some day she gets off the chemicals . . . If after two-and-a-half 

years you can=t change, it=s called constructive abandonment. 

The trial court=s order terminating the mother=s parental rights stated: 

[the mother] has abandoned the child, [K.A.H.], pursuant to T.C.A. ' 36-1-

113(g)(3)(A) et seq., in that said child has been removed from the custody of [the 

mother] for more than six (6) months, and that the conditions which led to the 

removal of said child from said Defendant, and would in all reasonable probability 

cause said child to be further abused or neglected, still persist; that there is little 

likelihood that these conditions will be remedied in the near future; and, that said 

child is of such an age that the continuation of the legal parent and child relationship 

greatly diminishes said child=s chances of early integration into a stable and 

permanent home; and further, that pursuant to T.C.A. ' 36-1-113(g)(2), [the mother] 

has failed to comply with the Statement of Responsibilities as provided in the Plan of 

Care . . . 

The mother appeals the trial court=s termination of parental rights. 

II. Standard of Review 

Because the decision to terminate parental rights affects fundamental constitutional rights, 

courts apply a higher standard of proof when adjudicating termination cases. See O'Daniel v. 

Messier, 905 S.W.2d 182, 186 (Tenn. Ct. App. 1995). To justify the termination of parental rights, 
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the grounds for termination must be established by clear and convincing evidence. See Tenn. Code. 

Ann. ' 36-1-113(c)(1) (Supp. 1999); State Dep=t of Human Servs. v. Defriece, 937 S.W.2d 954, 960 

(Tenn. Ct. App. 1996). Evidence which satisfies the clear and convincing standard "eliminates any 

serious or substantial doubt concerning the correctness of the conclusion to be drawn from the 

evidence." O'Daniel, 905 S.W.2d at 188. "This heightened standard . . . serves to prevent the 

unwarranted termination or interference with the biological parents' rights to their children." In re 

M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). 

The Aclear and convincing evidence@ standard defies precise definition. While it is 

more exacting than the preponderance of the evidence standard, it does not require 

such certainty as the beyond a reasonable doubt standard. Clear and convincing 

evidence eliminates any serious or substantial doubt concerning the correctness of the 

conclusions to be drawn from the evidence. It should produce in the fact-finder=s 

mind a firm belief or conviction with regard to the truth of the allegations sought to 

be established. 

O=Daniel, 905 S.W.2d at 186. 

Under this heightened standard of review, we must first review the trial court=s findings in 

accordance with Tenn. R. App. 13(d). That review is de novo, with a presumption of correctness 

for the trial court=s findings of fact, unless the preponderance of the evidence is otherwise. See Tenn. 

R. App. P. 13(d). Then, we must determine whether the facts make out a clear and convincing case 

in favor of terminating the parents= parental rights. See In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. 

App. 1988). 

Parental rights may be terminated in only a limited number of statutorily defined 

circumstances. Before termination, one or more of the asserted statutory grounds6 must be proved by 

clear and convincing evidence and the court must determine, also using the clear and convincing 

evidence standard, that termination is in the child=s best interest. See Tenn. Code Ann. ' 36-1-

113(c)(2) (Supp. 1999). 

III. The Conditions Which Led to Removal Persist 

The trial court based the termination of parental rights on Tenn. Code Ann. ' 36-1-

113(g)(3)(A), which provides the following as grounds for seeking termination: 

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Although the trial court used the term Aabandonment@ in its statement from the bench and in 

its final decree, we do not interpret abandonment as one of the grounds for termination of the 

mother=s rights relied upon by the court. The grounds for termination were the persistence of 

conditions which led to the removal of the child or other conditions potentially subjecting the child 

to neglect and the mother=s failure to comply with the Plan of Care. 
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The child has been removed from the home of the parent or guardian by order of a 

court for a period of six (6) months and: 

(i) The conditions which led to the child's removal or other conditions which in all 

reasonable probability would cause the child to be subjected to further abuse or 

neglect and which, therefore, prevent the child's safe return to the care of the 

parent(s) or guardian(s), still persist; 

(ii) There is little likelihood that these conditions will be remedied at an early date so 

that the child can be safely returned to the parent(s) or guardian(s) in the near future; 

and 

(iii) The continuation of the parent or guardian and child relationship greatly 

diminishes the child's chances of early integration into a safe, stable and permanent 

home. 

We find that the elements of Tenn. Code Ann. ' 36-1-113(g)(3)(A) have been met. The child 

had been removed from the home by order of a court for six months. She had been in foster care for 

two and one half years at the time of the hearing. The condition which led to the child=s removal was 

the neglect caused primarily by the mother=s drug and alcohol use. That drug and alcohol use 

persists. The mother tested positive on her drug screens throughout the period when the child was in 

foster care, including a positive test just before the hearing. Similarly, there is little likelihood that 

the condition will be remedied at an early date so that the child can be safely returned to the mother. 

This mother has had more than two years, and assistance, to deal with her drug problem. She was 

told, even before the child was removed from her care, that her drug use created a problem for the 

child. She did not take steps to remedy the situation, and the child was taken into state custody. 

Even after the child was in foster care, the mother resisted DCS efforts to help her overcome her 

dependency. She was offered transportation to Alcoholics Anonymous and Narcotics Anonymous 

meetings, but after a few meetings, refused to attend any more. She never had a drug and alcohol 

assessment, as required by her Plan of Care. Three weeks prior to the hearing, knowing that her drug 

abuse was an important issue in the termination proceedings, the mother ingested drugs. Her 

protestations that she did not know that that particular drug would show up on a drug test simply 

affirm the foster care worker=s assessment that the mother Amanipulat[es] the system.@ She claims to 

want her child back, but she is simply unwilling or unable to put the child=s needs above her own 

chemical dependency. 

The final element, A[t]he 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@ has also 

been met. See Tenn. Code Ann. ' 36-1-113(g)(3)(A)(iii). This child was four years old at the time 

of the hearing, and had been in foster care for more than half of her life. She needs a permanent 

home where she can Agrow up and be a productive member of society.@ The mother cannot provide a 

permanent stable home for the child and is unlikely to be able to do so in the near future. Absent 

termination of the mother=s rights, the child cannot hope for a permanent, stable home. 

The mother does not argue that the elements have not been met. She argues that DCS has not 

proved Avia clear and convincing evidence, that this parent/child relationship could not be salvaged, 
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nor that the relationship between [K.A.H.] and her mother is currently harmful to [K.A.H.=s] safety . . 

. or future emotional stability.@

The mother misunderstands the requirements for termination of parental rights. DCS is not 

required to prove that a parent-child relationship cannot be salvaged. Nor is DCS required to show 

that a parent is Acurrently harmful@ to a child=s safety or future emotional stability. The question 

herein is the likelihood that the child can be safely returned to the custody of the mother, not whether 

the child can safely remain in foster care with weekly visits with the mother. Our termination of 

parental rights statutes recognize a child=s need for a permanent, stable environment which this 

mother has demonstrated she is unwilling or unable to provide. DCS has proved, through clear and 

convincing evidence, that, pursuant to Tenn. Code Ann. ' 36-1-113(g)(3)(A), the child has been 

removed from the home of the parent by order of a court for a period of six months, and the 

conditions which led to the child=s removal from the home continue to persist and prevent the child=s 

return to the home, that there is little likelihood that the conditions will be remedied in the near 

future, and that continuation of the parent-child relationship greatly diminishes the child=s chances of 

being placed in a permanent home. Thus, statutory grounds7

 for termination have been proved and 

we turn to whether termination of parental rights is in the best interest of the child. 

IV. Termination of Parental Rights is in the Child=s Best Interest

Once statutory grounds for termination have been established, the court must determine, 

based on clear and convincing evidence, that termination of parental rights is in the best interest of 

the child. See Tenn. Code Ann. ' 36-1-113(c)(2) (Supp. 1999). The mother argues that a strong 

bond exists between the child and herself, and that she should be given Aa true chance to regain 

custody of her child.@ Tenn. Code Ann. ' 36-1-113(i) states: 

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: 

(1) Whether the parent or guardian has made such an adjustment of 

circumstance, conduct, or conditions as to make it safe and in the child's best interest 

to be in the home of the parent or guardian; 

(2) Whether the parent or guardian has failed to effect a lasting adjustment 

after reasonable efforts by available social services agencies for such duration of time 

that lasting adjustment does not reasonably appear possible; 

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The trial court found the mother=s failure to comply with the Plan of Care, pursuant to Tenn. 

Code Ann. ' 36-1-113(g)(2), to constitute an additional ground for termination of the mother=s 

parental rights. It is not necessary for us to address that finding because we have affirmed the trial 

court=s determination that the ground set out in Tenn. Code Ann. ' 36-1-113(g)(3)(A) has been 

proved clearly and convincingly. The mother=s drug and alcohol abuse, the condition which led to 

the removal of the child, was also the primary factor in her failure to comply with her Plan of Care. 
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(3) Whether the parent or guardian has maintained regular visitation or other 

contact with the child; 

(4) Whether a meaningful relationship has otherwise been established 

between the parent or guardian and the child; 

(5) The effect a change of caretakers and physical environment is likely to 

have on the child's emotional, psychological and medical condition; 

(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 other children 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. 

Our own review of the evidence, in light of those factors, compels our agreement with the 

trial court that the termination of the mother=s rights is in the best interest of this child. The mother 

has not made an adjustment of conditions, specifically her use of drugs and alcohol, which would 

make it safe and in the child=s best interest to be in her home. See Tenn. Code Ann. ' 36-1-113(i)(1). 

 She has failed to make the adjustment, despite reasonable efforts by DCS, and such adjustment does 

not reasonably appear possible. See Tenn. Code Ann. ' 36-1-113(i)(2). Certainly, there is Asuch 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.@ Tenn. Code Ann. ' 36-1-113(i)(7). Considering the above 

factors, and the child=s need for permanency, we agree with the trial court that termination of the 

mother=s parental rights is in the best interest of the child.

In a similar case, a mother who could not overcome her addiction argued that, while the 

statutory grounds existed, termination of her parental rights was not in the children=s best interest. 

See State Dep=t. of Children=s Servs. v. Hunter, No. 1999-02606-COA-R3-CV, 2000 WL 313549 at 

*1 (Tenn. Ct. App. Mar. 29, 2000) (no Tenn. R. App. P. 11 application filed). That mother, like the 

one in the case before us, visited her children frequently, testified that she and her children had 

bonded as a family, and claimed to be making progress in the treatment of her drug abuse. See id. at 

*3. That mother also used illegal drugs shortly before the hearing on the petition to terminate her 

parental rights. This court affirmed the trial court=s termination of parental rights, stating: 

[T]he judge felt compelled to recognize . . . that despite having a considerable 

amount of support from DCS for almost nineteen months, [the mother] had made 

very little progress towards the goals she had to reach before being reunited with her 

children; that the children were getting older and that they needed stability in their 
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lives; that being an effective parent involves far more than visiting . . . [W]e believe 

[the mother=s] failure to make fundamental adjustments in her life makes the 

termination of her parental rights an inescapable conclusion. . . . Continuation of the 

parental relationship would eliminate any realistic possibility of the children being 

integrated into a stable and permanent home. It is in their best interest that her 

parental rights be terminated. 

Id. at *3-4.

Fully aware of the gravity of the decision to terminate a parent=s rights, we think the 

reasoning in Hunter applies here with equal force. This mother states that she would like to regain 

custody of her daughter, but she has shown that she is simply unable to overcome her dependency on 

drugs and alcohol. Two and one half years have passed, as stated by the trial court, Ahoping that 

some day she gets off the chemicals.@ The child needs stability in her life, and the mother has proved 

herself unable to provide that stability. To do other than affirm the termination of parental rights 

would leave the child in foster care indefinitely. 

V. Court Appointed Psychologist 

The mother also argues that the trial court erred in denying her motion for a court appointed 

psychologist. The motion before the trial court asked for a Apsychologist to evaluate the relationship 

now existing between [the mother and] the minor child,@ and estimated the cost at $500 to $600. 

DCS argued against the motion, stating, AThe case doesn=t have anything to do with the parent/child 

relationship. . . . This is a case about the parent and her neglect of the child. And her own 

functioning or lack of functioning, it=s based on her alcohol, drug, substance abuse problems. . . .@ 

The trial court denied the mother=s motion. 

We must agree with DCS. The motion asked for a psychologist to evaluate the relationship 

between the mother and child. The relationship between the mother and the child was not the issue 

in this case. DCS foster care workers admitted that the visits between the mother and child went 

well, and that a bond existed between them. It is quite possible that a psychologist would have 

reached a similar conclusion, but the outcome would have been the same. The issue in the case 

before us was the mother=s inability to overcome the obstacles in her life which caused her to neglect 

the child. We find no merit in the mother=s argument that the court erred in denying her motion to 

appoint a psychologist to evaluate her relationship with her daughter. 

VI. Conclusion 

We affirm the order terminating the mother=s parental rights and remand the case to the trial 

court for such further proceedings as may be required. Costs of this appeal are taxed to the mother, 

for which execution may issue if necessary.
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____________________________________ 

PATRICIA J. COTTRELL, JUDGE