### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs J

anuary 10, 2001 STATE OF TENNESSEE, DEPAR TMENT OF CHILDREN’S SERVICES v. T.M.L. Appeal from the Juvenile Court for Davidson County No. 9519-18383 Betty Adams Green, Judge

No. M2000-01785-COA-R3-JV - Filed April 26, 2001

The juvenile court granted a petition to terminate parental rights to three of the chi ldren o f a Nashville wo man . On appeal, the mo ther challenge

s the termination in

regard to her

oldest child onl y, on the ground that it is not in the child’s best intere st to be p ermanently separated from her. We affirm the trial court.

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

Affirmed and Remanded B EN H. C ANTRELL , P.J., M.S., delivered the opinion of the court, in which W ILLI AM C. K OCH , J R . and W ILLI

AM B. C AIN , JJ., joined. Thoma s H. Mi ller, Frank lin, Tenne ssee, for th e appe llant T.M.L. Paul G. Summers, Attorney General and Reporter, Douglas Ear l Dimond, Assistant At torne y General, for the appellee, State of Tennessee. OPINION I. A M OTHER AND H ER C HILDREN T.M.L. is the mother of eight children, all born out of wedlock to at least four different fathers. The subject of this appeal is L.D.L., Ms. L .’s daughter and

oldest child, who was born on July 9, 1987. When the mother found that she was unable to take care of the needs of her y ounger1 The facts of thi s case occu

rred both be

fore and af

ter the Department of Childr

en’s Ser vices was

split off fr om the Department of Human Serv ices. For conveni

ence and simplici

ty we will

refer to both a

s “the Department .” -2- children, she relied heavily upon the assistanc e of L.D.L., as well as upon numerous services provided over the

years by the Department of

Children’s Servic

es. 1 On July 3, 199 5, the Depa rtment filed a petition for temporary custody a nd emergency removal of the six children that were in Ms. L.’s custody at the time, on the ground that thechildren were depen dent a nd neg lecte d. The petit ion st ated t hat Ms . L. andher children had been stayin

g in a large and livable home with distant relatives, but that for reasons of her own, Ms. L. had decided to leave the home with her children, even though she had no place to go. The court entered an emergency protective order

placing the children in the temporary care andcustody of the Department. A preliminary hearing was conducted on Jul y 10. Ms. L. was present at the hearing, as was the Guardian ad Litem for the children, Ms. L.’s attorney, four socia l workers from the Department of Human Services, the Department’s attorney, Ms. L.’s mother, both the paternal grandmother and the au nt of M s. L. ’s oldest son, M.L., Ms. L.’s godmother, and the relatives Ms. L. had been staying with befor e the petition was filed. Th e court found that the Department had acted appropriately in removing the children , because the lack of housing posed an immediate threat to their health and safety. However, the court also found that in the interim Ms. L. had secured housing, and since she felt that she was capable of handling two of her children, it returned custody of K.L. and R.L . to her, with custody of the remaining children to remai n withthe Department pending a final hearing. In addition, the court ordered the De partm ent to arran ge for a home i nterv entio nist to wor k with Ms. L. , fora psychological

exam to be conduc ted on her, and that she become involved in the Regional Intervention Program (RIP). On October 26, 1995, the court conducted a trial on the petition f or cu sto dy. Many of the samepeople who had attended the preliminary hearing were pr esent, as well as foster parents for three of the children, and the children’s pediatrician. The court found the youngest child (who was l ess than a year old at the time) to be neglected due to loss of weight a nd a period of untreated illness, but stated that “thi s neglect is due to a lack of knowledge and poor judgment on the part of the mother rather than any attempt to harm him.” The court also found the other five children to be either dependent o

r depende nt and neglected, but returned legal custody of L .D.L. to Ms. L. The Department

was ordered to pr

ovide additional a

ssistance to

Ms. L., including the creation of a Plan of Care. A detailed Plan of Care, signed by Ms. L ., is contained in the record. During the next two

years, the Department w

orked with the fa

mily, and gr

adually returned the children to Ms. L. However, she was still unable to take care of them. She placed h er tw o youngest children with a family friend, two others with their father, and another with a foster mother, placements that were all confirmed by custody orders.-3-

By August of 1998, Ms. L

. was living in the home of her aunt with three of her children, L.D.L., M.L., and R.L., her next oldest son. With the a gr eement of the Department, she filed a petition on August 3, 1998, to be relieved of custody of all three children, stating that she no longer could control them, and that her aunt could no longer house all of them. The pe titi on li sted M s. L. as homeless and unemployed. The court granted Ms. L .’s petition, finding that the children were neglected anddependent, and since no one was willing to assume legal r

esponsibility

for them, their custody was transferred to the State. II. T ERMINATION P ROCEEDINGS B EGIN On July 12, 1999, the Department filed a petition to terminate parental rights to L.D.L., M.L ., and R.L. I

n addition to

Ms. L., the pe titi on nam ed fou r men w ho Ms. L. said were or could be the father of these children. The two men who Ms. L. n amed a s poss ible f ather s to L.D .L. could not be found after

a diligent search, and had to be served by publication. One of those men was also named as a possible father

to R.L. The other man named as a possible father to R.L. admitted that he had fathered two other children by Ms. L., a nd in fact he h ad custody of those children and supported them. But he never admitted paternity of R.L., and he signed a waiver of interest as to that child. E.C. was named by Ms. L as the father o f M.L. In order to testify at the terminati on hearing, he ha d to be transported from prison, where he was serving a ten y ear sentence for

aggravate

d bur glar y. E.C. acknowledged M.L. as his son, and expressed a desire for custody . Blood tests had been taken on E.C. and M.L. to establish paternity, but the results of M.L .’s test had not

ye t been returned. E.C. admitted that he had no contact with the child after 1995. The trial began o n Febr uary 29, 2000. Ms. L. testified that she was pregnant by a new man she was living with. She said that the two of them hadbeen living in a motel for two weeks, but she hadbeen homeless for almost two years before that. She also testified that she had n ever been employed, but that she was capable of working, and not disabled. Ms. L. stated tha t she was not contesting the termination petition as to M.L. and R.L., because they both had been

diagnosed with

Attention Deficit Hyperactivity Disorder ( ADHD), and were v ery hard for her to deal with. By this time, the two boys were living in thera peutic grou p homes, and Ms. L. had very little contact with them. The mother did not agree, however, that her rights to her oldest daughter should b e terminated, because she

believed that the

twelve-ye

ar old did not have

any behavi

or problems

that would prevent Ms. L. from parenting her child effectively . L.D.L. had been

placed in a grouphome at the Tennessee Preparatory School (TPS), and Ms. L. testified tha t for the past month, she and her da ughter had talked on the telephone every night for about thirty minutes each time. Two social workers who were familiar with them testified that Ms.

L. and her da

ughter were on

friendly te

rms, butthat their connection was more like a friendship between peers than like a mother- daughter relationship.-4-

The evidence also sh

owed that Ms. L. had only visited L.D.L

. once in the four months before the Petition to Terminate Parental Rights was filed, and only once between the filing of

the petition andthe hearing, even though the Plan of Care included a provision for regular visitation. She also failedto comply with the other responsibilities established by the Plan of Care, including the use of birth control, the completion of counseling for a panic disorder, obtaining a referral to a

weight loss clinic, and earn

ing money to

get her own apa

rtment. Ms. L. complained that her social worker had given up on her, but she admitted that she had received numerous services from

the Department over the years including pay ment of rent, provision of food orders,

cleaning sup plies, non prescripti on drugs, di apers, bedd ing, furniture, a washer and dryer, bus passes, and homem

aker and clean

ing services. At t he end o f a full day

of testimony,

the trial judge d

eclared that she

would take the ca

se under advisement, pending the results of the paternity testing on M.L., and that if the test proved that E.C. w as the father, he would be given the opportunity to present other evidenc e in opposition t o termination of his

parental right

s. If the tests

proved otherwise

, then the judge w

ould hear closing arguments and issue her ruling. III. T HE T ERMINATION H EARING C ONTINUES The hearing reco

mmenced on June 5, 20

00. Ms. L. was th

e only witne

ss to testif

y, bu t closing argu ments were m ade on behal f of all the i nterested p arties. Al though E.C.’s attorney di d notpresen t an y f

urther proof, he argued that his client’s parental rights should not be terminated because he was not

included in the Plan of Care, and was never offered any of the services that the Depar tment provi ded to Ms. L. Ms. L. testified that the due date for her pregnancy was July 31. She was no longer living withthe father of her child, who had relapsed into crack cocaine addiction. She was still “seeing him,” however, and had refused to enter a four wee k counseling program because one of the stipulations of the program was that she not see him for a month. Ms. L. was stay

ing at the Family

Life Center,

and waiting for

the Metro Housing

Authority to provide her with a

n apartment. She h

ad enrolled in a di

fferent counse

ling program (

although so far she had only attended two of the four sessions that had been scheduled for her ) and was attending a four week program sponsored by the Depar tment, called the Fresh Start Pr ogram. She said that she planned to get her GED and job training. Ms. L. said that she still talked on the phone with L. D.L. every night. However, the proof showedthat

between Febru

ary 5, 2000 a

nd June 5, 2000, Ms.L. had visited her daughter only twice, and that on one of those occasions the child had been brought to her. At the conclusion of t

he closing arg

uments, the trial c

ourt ruled that the Departme nt had proven the grou nds for ter min ati on o f par ent al r ight s by c lea r and con vin cin g evi den ce, s peci fic all y,-5-

the grounds stated in Tenn. Code. Ann. § 36-113-(g)(3)(A). The judge stated that she believed that Ms. L. loved her children, but that she did not express her love by assuming

the responsibilities of parenthood, and therefore that such termination was in the best interest of al l the chil dren. In its Final Decree of Guardianship, the court terminated the parental rights of Ms. L. and

of four named andany unknown fathers of L.D.L ., M.L. and R.L. Ms. L. has appealed the judg e’s ruling in regard to L.D.L. only. E.C. did not appeal the termination of his par ental rights. IV. T HE Q UESTION OF B EST I NTERESTS The rights of parents to the custody and upbringing

of their own childr

en is a fundamental liberty that is protected by both the United States and Tennessee Constitutions. In Re Swanson , 2 S.W.3d 180 (Tenn. 1999); Stanley v. Illinois , 405 U.S. 645 (1972); Meyer v. Nebraska , 262 U.S. 390 (1923). Yet

a parent’s rights are not absolute, but may be terminated on statutory grounds such as abandonment or abuse, when required to protect the best interests of the children. Tenn. Code. Ann. § 36-1-113 governs the termination of parental rights in Tennessee. Under Section (c) of the statute, termination of parental or guardianship rights must be based upon:

(1) A finding by the court by clear a nd convincing evidence that the grounds for termination or parental or guardianship rights have been established; and (2) That termi nation of t he parent's or guardian' s rights is in the best interests of the child. Section (g) of the

same statute states that termination of parental or guardianship rights may be based upon any

of the following

grounds: (1) Abandonment by the parent or guardian, as defined in § 36-1- 102, has occurred; (2) There has been substantialnoncompliance by the parent or g

uardian 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)(A) 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 ledto the child's removalor other conditions which in all reasonable p

robability would cause the c hild to be subjecte

d to further abuse or neglect and which, therefore, prevent the child' s safe retur n to the care of the parent(s) or g

uardian(s), still

persist;-6- (ii) There is little like

lihood that these c

onditions will be re

medied at an ear

ly 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 guar

dian and child rel

ationship great

ly diminishes the child's cha nces of early

integration into

a safe, stable

and permanent home. The appellant

does not dispute that the grounds for termination of her parental rights have been established by clear

and convincing evidence. Her sole argument on appeal is that there was scant evidence that it w

ould be in the best interest of L.D.L. to have the relationship with her mother terminated. The ap pell ant infers that her nightly telephone conversations with her daug hter provide evidence of a

valuable relationship between them, and argues that there was no proof that eventual reuni ficat ion be tween the mo ther a nd dau ghter would be det rimen tal to L.D.L. It appears to us, however, that the trial court was co rrect in fin ding t hat Ms . L. had proven herself incapable of providing the structure that the best interest of a child or teenager requires, and that continuation of the parental relationship would like ly int erfere with the possibility of establishing or m

aintaining an al

ternative struct

ure for L.D.L.’s benefit

. The trial court noted that L.D.L. had been in the custody of the Department

for a period of over two yearsprior to the entry of the Final Decree of Guardianship, and that the Department made heroic efforts to help Ms. L. acquire the skills and knowledge that would enable her to be reunited withher children. De

spite those effor

ts, Ms. L. has ma

de virtually

no progress towa

rds t he goals stated in her Plan of Care. The rec ord reveals that

while Ms. L. was perfectly willing to acce pt the material hel p of fere d by t he Departme nt, she simply

refused to make a

ny effort o

f her own to improve her situation or that of her children. We would further note that Ms. L.’s continuing relationship with the father of her unb orn child makes any reunification with L.D.L . problematic at the very lea st. During the hearing of February 29, Ms. L. was asked how she wa s going to take care of the ch ild that s he was carrying. She replied that “the father’s going to help take care of us. ” She also testified that the father had been convicted of assaulting her when she w as three weeks pregnant, and t hat he was addict

ed to crack cocaine. She did not testify as to any will

ingnesson his part to care for L.D.L. We must thus conclude that contrary to appellant’s argument,

the record shows by clear and convincing evidenc e that it would be in the ch

ild’s best interes

t to terminate the p

arental rights

of Ms. L. As long as the parent-child

relationship

continues, L.D.L. has little chance of becoming par t of a safe, stable, and permanent home. We

affirm the trial c

ourt.-7- V. The decree of the tr

ial court is affirmed. Remand this cause to the Juvenile Court of Davidson County for

further proceedings consistent with this opinion. Ta

x the costs on appea

l to the appellant, T.M.L.

_________________________________________ BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.