# FILED

Novemb er 3, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF

APPEALS OF

TENNESSEE EASTERN SECTION

AT KNOXVILLE

STATE OF TENNESSEE, ) DEPARTMEN

T OF ) HAMILTON JUVENILE CHILDREN’ S SERVICES, ) ) Petitioner/Appellee, ) NO. 03A01-9705-JV -00152 ) v. ) HON. SUZANNE BAILEY ) JUDGE YVONNE BARDIN, ) ) Respondent/

Appellant )

) ) IN THE MATTER OF: ) ) Jame s Richard

Bardin ) (D.O.B. 1/28/85), ) Joshua Isai ah Bardin ) (D.O.B. 11/24/86), ) Angela Ma

riah Bar din ) (D.O.B. 1/8/88), ) Justin Andr

ew Bar din ) (D.O. B. 2/23/91) ) AFFIRMED

Lorrain e Raymond, Chattanoog a, for A ppellant. John Knox W alkup, Attorney Genera l & Report

er, and D ouglas Ea

rl Dim ond, Assistant Attorney General, N ashville, for Appellee.


### O P I N I O N

INMAN , Senior

Judge The parental rights of Yvonne Bardin w ere ter minat ed by th e Juvenile Court of H amilt

on County

and she appe als. Four

(4) childr

en are inv olved. T

he issu e pres ented for rev iew is wheth er the evid ence i s clea r and c onvi ncin g. We fin d t hat it i s an d affir m.2 The Ten nes see Dep art ment of H uman Ser vi ces [”D HS” ] be came official ly invol ved on May 1, 1991 when it petition ed for the temporary

custody of the four

children. On July 17, 1991, t

he children were pl aced in the temporary

custody of DHS with inst ructions to condu ct a home study of th e maternal grandp arents. The DHS alleged that Ms. Bardin kept the children [Jam es, Joshua, Angela, Justin, al l of whom

were under six y ears of a ge] “in utter f

ilth and depl orable neglect . . . with out runn ing water, elec tricity, or any basi c necessit ies.” By D ecem

ber 19, 199 1 the Juvenil e Court had returne d the childr en to their mother. On September 15, 1993, the DH S again petitioned for and was granted temporary

custody of the children as “victim s of ongoing physical and medical neglect. ” The olde st child, J ames , then eight yea rs old, w as hospitali zed due to his mot her’s i nattention t

o his me dical nee ds, but his c ustody w as return ed to his mot her on November

1, 1993. In the Spr ing of 1994, Dr. W

illiam Hillner , a psy chologist, assessed M s. Bardin’s interaction with her children. [He had previously , in 1993, evaluated her pare ntal com

petency , with dis mal f

indings.] As a re sult of his a ssessm ent the follow ing yea

r, he fo und that she did not contr ol their be

havior, c ould not control her

anger, a ssaulted Ja

mes, was gene

rally dysfun ctional an d was m ildly retarde d. On Januar

y 20, 1 995, Susan

Ford, the casewor ker assigne d to Ms. Ba

rdin, entered i nto a plan of

reunific ation of the

fam ily. Ms. Bar

din agree d to provide better ca re for th e childre n. But the matter worsened. Ms. Bardin’s public housing apartment was3

filthy ; she kept do gs in the apa rtment; the sten ch som

etime s was over

powering;

on one occa sion the ca seworke r observe d a dead ra

t on the bath

room f loor. Ms. Bardin w as evicte d from

her apar tment on Septem

ber 6, 1995 owing to fi lthy conditions. Jame s was re moved because of bizarre conduct in s chool and eventually

was hospit alized for psyc hiatric t reatm ent, whe re he re maine d at the time of trial. Ms. Bar din has neve

r ma rried. Jame s’ fath er is Jam es B. St ark. Josh

ua and Angela

were f athered b y Per

cy Connley. Justin’s father i s unknown. Ms. Bardin w as born Fe

bruary 9, 1964; her

life has b een m

elancholy beyond descripti on. She su ffered a traumatic child hood, being sexually

abused fir st by her father and then by her m other’s boyfriend. She and her m other moved constantly , apparently to a void her fa

ther. S he eventua

lly settled in Chattanoog a, wher

e she was placed in a

children’ s home

on two occ asions during her teenage years for ‘ wildness’. On one occasion during these years her mother was adm

itted to Moccasin Bend Mental Health Center. Ms. Bar din has diff

iculty in com prehending her predi cament, e.g. , she does not under stand that t he children were t

wice removed from

her car e. She works very little: ten weeks in 1995, none in 1994, 1993, 1992 or 1991. Before trial she worked si x months . She ad mitte d spending $200 .00 per m onth on 25 dogs, altho ugh she has r

eceived o nly $400. 00 in total su pport from

the identifie d fathers of her children dur ing the past

five y ears. Ms. Bardin testified that she has taken parenting classes, that she loves her children, and that there was never a reason to rem ove them from

her care. One case worker t

estified t hat “ the prospec t of the chi ldren’ s returnin g to her [the mother’s] care i s so monstrou s I persona lly could no t be a part of it.”4 The Juveni le Court, in term inating the parental

relations hip, m ade vario us findings ty

pical of which is that

“[M s. Bardi n] put the

stinking filth of dogs or other animals ahead of her own children and subjected her ow n children to that type of unsafe environment repea tedly over the year s.” Significantly, the Court found by clear a nd convincingevidence

that the c onditions which led to th e

remo val of the c hildren per sisted over a numb er of y ears and w ere unlike ly to be rem edied. The juv enile cour

t is authori zed to ter

minat e parenta l rights if it finds by clear and convincing evidence that the grounds for termination of parental rights have

been esta blished, a nd that the t

ermi nation is in t

he best inte

rests of the child. T.C.A. § 36-1-113(c)(1)( 2). A court m

ay te rmina te parent al rights if

it finds by

clear a nd convincing evidence that: The child has be en rem

oved from

the hom e of the pa

rent or guardian by orde r of a cou rt for a p eriod of si x (6) m onths and: (i ) The conditions which led to the child’s removal or other conditions which in a

ll reasona ble probabilit

y woul d causethe child to be subjec ted t o further abuse or neglect and which, therefore prevent the

child’s return to the care of the par

ent(s) or guardian(s), still persi st; (ii) There i s littlelikelihood that these conditions will be remedied at an earl y date so tha

t the child c an be retu

rned to the

parent(s ) or guardian( s) in the ne ar future ; and (iii) The conti nuationof the par ent or guar

dian and chi ld relati onship greatly dimini shes the child’s ch ances of e arly integrati on into a stable and permanent home. T.C.A . § 36-1-1 13(g)(A )(Repl. 1996). T hus, if the conditions le ading to removal have no t been cured and are unl ikely to be cur ed in the n ear future, a court may te

rmina te parent al rights in

the best int

erest of the childr

en. In this cas e, “ the conditio ns which le d to the chil dren’s remo val” wer e, in5

1991, “utter filth and deplorable negle ct,” and in 1993, “ ongoing phy sical and medical neglect ” due in par t to “unsanit ary and unsafe” h ousekeep ing. Moreover , Jam

es was r emove d in 1993 beca

use of Ms. Bardin’ s neglect o f his medic al needs a

nd again in 19 95 because of filthy housekeepi ng. Ms. Bardin did nothing to alleviate those conditions or make it likely they would soo n be remedied. Her ho usekeepi ng remained exec rable as ever

. Casewor kers testi fied about the filth, the num erous anim

als and the

repellan t odors. Four days before trial, Ms. Bardin refused to allow caseworker Summ erlin in the front door because of the condition of her home. What ar eas Ms. Sum merl in could see

were he aped with

trash. Ms. Bar din’s neg lect of Ja

mes a nd his m edical co ndition conti nued; she visited him

only tw elve tim

es in the tw o year s before t rial. S he continue d to subordinate

the childr

en’s ne eds to her o wn desire s as exem plified by the money she spent on her dogs co mpared to the money she s pent on h er children

. She continued to deny that she had any problems a nd testified that all her houses had be en clean a

nd that she d

id not belie ve there w as ever a reason for her children to be removed. We agree that this massive denial indicates that Ms. Bar din was unl ikely t

o rem edy he r problem s in the nea

r future; if she ref us ed t o re cog ni ze h er p rob lems , sh e co ul d n ot cur e th em. Given the se circumstances a nd given the c hildren’ s own problems, the Juvenile Court expressed fear for the safety of the children and determ ined that term ination wa s in the chil dren’s best inter est. The appellant argues that the caseworkers’ testim ony revealed that her parenting s kills showe d gradual i mprov emen t. We do not read

their tes timony in this light. Both caseworkers testified they saw no im provement. Her6

argum ent that the

court re ally ba sed its dec ision on her failure to pay c hild support likewise is unmeritorious; the court merely pointed to that behavior as

an exam ple of appe llant’s attitude to wards he r childre n. Alte

rnatively , she argues tha

t her ‘ marg inal’ ho usekeeping and keepingof dogs we re the pr edicate of the cour

t’s dec ision and tha

t these fa ctors do not warran

t the drast ic action o f term inating her

parental rights. The testi mony

of the wi tnesses abo ut the deplorable and unh ealthy conditions of

the hom e was unr efuted. These c onditions per sisted for year s, with no indic ation that t

hey w ould ever be

correct ed. The tria l court fou nd that the a

ppellant w as dishonest

and uncoope

rative and that the

evidence was cle ar and convincing that the best int

erests of the children r equired tha

t the parental rights of the appe llant be te rmina ted. Parents h ave a fund amen tal right to the care , custody and control

of their children

. Stanley

v. Illinoi s, 405 U.S. 645, 92 S. Ct. 1208, 31 L.E d.2d 551 (1972). H owever, this right i s not absolute and parental rights m

ay be term inated if t here is c lear and c onvincing evi dence j ustify ing such ter minat ion and unde r the appli cable stat ute. Santowsky v. Kram er, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed.2d 599 ( 1982); In re: D rinnon, 776 S.W .2d at 97 ( Tenn. A pp. 1988); Tenn ess ee De par tment of Hu man Se rvi ces v. Ri ley, 689 S.W .2d 164 (Tenn. App. 1984) . All iss ues are pr emise d on the found ation of “ what is in the best interest of the child.” Riley at 169. Ms. Bardin’s children were rem oved due to health and safety risks posed to them by thei r filthy surrounding s and her in attention to their bas ic needs, including m

edical ne eds. Ms. Bardin de nied she had any pr oblem s and maintained a de plorable and dange rous hou sehold fo r five years up un til trial.7

She agre ed in her pl ans of car e to provide

a clean a nd healthy

living environm ent but her

residenc e remained filt

hy, m alodorous a

nd filled w ith anima ls and their

smel l. She argue s that she no w has a j ob and “ will do bet ter.” B ut the execrable conditions pe

rsisted for five y ears; her oldest chil d rem ains hospita lized for psychiatric problems; the trial court found her to be dishonest and unworthy of belief. Our revi ew of the

findings of

fact made by the tr

ial court i s de novo upon the recor d of the tr ial court, accompa

nied by a pr

esumption of

the corr ectness of the finding, unless the preponderance of the evidence is otherwise. T ENN . R. A PP . P., R ULE 13(d). We agree with the trial judge that the evidence is clear and convinc ing, and the

judgment is affirme d at the cos ts of the a ppellant.

_________________

_________________

_ William H . Inman, Senior Jud ge CONCUR:

_________________

________________ Hersche l P. Fra

nks, Judge

_________________

________________ Charles D . Susano, Jr., Ju dge