IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs January 15, 2013

IN RE SPENCER P. ET AL.

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Appeal from the Circuit Court for Montgomery County

No. MCCCCVSR090699 Ross H. Hicks, Judge

No. M2012-01205-COA-R3-PT - Filed March 5, 2013

Mother’s and Father’s parental rights to four children were terminated based on findings that

they committed severe child abuse upon a sibling and that the best interests of the remaining

four children (the parents’ rights to the two severely abused children having been previously

surrendered) required termination of their rights. Parents appealed, challenging only the best

interest finding. We affirm.

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

ANDY D. BENNETT, J., delivered the opinion of the Court, in which PATRICIA J. COTTRELL,

M.S., P.J., and RICHARD H. DINKINS, J., joined.

Dustin P. Click, Clarksville, Tennessee, for the appellant, Windie P.

Robert E. Cooper, Attorney General and Reporter, and Alexander S. Rieger, Assistant

Attorney General, for the appellee, State of Tennessee, Department of Children’s Services.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

This case presents the unusual situation in which the parental rights of the appellants

were terminated and the appellants do not challenge that grounds for termination exist. Their

main argument is that termination is not in the best interest of the children.

The appellants, Ernest P. (“Father”) and Windie P. (“Mother”), were the adoptive

This Court has a policy of protecting the identity of children in parental termination cases by 1

initializing the last names of the parties. 
parents of six children: Victoria, Greta, Samuel, Mary Sue, Tyler and Spencer. The events

leading up to this appeal began when Victoria ran to a neighbor’s home. Blood was oozing

from her head and there were blood stains on her neck and shirt. She stated that Mother had

hit her with a rolling pin. She also had marks on her arms and torso, was dirty and looked

frail. Greta was also found to have marks and bruises. Both children endured deprivation

of food and water for extended periods, being tied to a cot for days at a time, beatings, burns

and other methods of “discipline” that can only be described as torture. Further cataloguing

the multiple, varied injuries Victoria and Greta received would serve no useful purpose here.

The juvenile court found that both children were dependent and neglected and that the

parents had committed severe child abuse. Mother was later convicted of facilitation of rape

of a child, two counts of false imprisonment, three counts of especially aggravated

kidnapping, three counts of reckless endangerment, aggravated assault, and two counts of

aggravated child abuse. A jury found Father not guilty of one count of especially aggravated

kidnapping and two counts of aggravated child abuse. Other counts against Father were

dismissed.

The Department of Children’s Services (“DCS”) filed a petition on September 28,

2010, to terminate the parents’ parental rights to all six children based upon the severe abuse

they committed against Victoria and Greta. The parents surrendered their parental rights to

Victoria and Greta.

At the hearing, both Victoria and Greta testified as to the abuse they received. They

also testified that Mother involved others in their punishment. Victoria said Mother made

Greta bend Victoria’s fingers back until her thumb broke. Greta stated that Mother made

Tyler and Spencer hit her with baseball bats and a hose and, if they refused, Mother would

hit them instead. Victoria testified that Mother would hit Tyler, Samuel and Mary Sue with

bats and wooden spoons. Spencer testified to being hit with a baseball bat, along with Tyler,

Victoria and Greta. Tyler testified that Mother tried to make him hurt his siblings.

Dr. Lisa Piercey testified that Victoria’s and Greta’s injuries were consistent with

their explanations. Dr. Piercey testified about injuriesto Victoria’sfingers and thumb, which

required surgery, as well as to Victoria’s ligature marks, lacerations, burn marks, and

swelling from jumper cable pinches. Greta had similar injuries. She stated “that both girls

were subjected to numerous and extensive episodes of severe physical abuse that posed an

imminent risk of serious bodily injury or death.” Dr. Janie Berryman, a psychologist,

testified, based on her interviews with the children, the forensic evaluations and the medical

records of Victoria and Greta, and the juvenile court record, that the children should not be

returned to the parents’ home.

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Father testified that he did not abuse the children and that he had not witnessed any

abuse. Mother exercised her right not to testify under the Fifth Amendment.

The parents called several witnesses. A DCS caseworker, Maleka Holmes, testified

that Tyler, Mary Sue, Samuel and Spencer experienced only environmental neglect. The

parents attacked Victoria’s and Greta’s credibility through the testimony of Maleka Holmes,

Christina Hite, a former foster parent of the girls, and Amanda McClain, a DCS contractor,

who discussed some inappropriate behavior, including theft. Dr. Janice Martin, a

psychologist, testified she performed a number of tests on Mother and that Mother did not

have the profile of an abuser. She recommended that the four children be returned to

Mother’s custody. She admitted to never having seen Mary Sue, Tyler, Samuel or Spencer.

Two witnesses, Keith and Ramona Cherry, testified that they had never witnessed any abuse

or signs of abuse.

The trial court terminated the parents’ parental rights based on the severe abuse

perpetrated against Victoria and Greta and a finding that termination was in the children’s

best interest. Each parent appealed.

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STANDARD OF REVIEW

Tennessee’s termination statutes identify situations in which the state’s interest in a

child’s welfare justifies interference with a parent’s constitutional rights and termination is

in the child’s best interest. Tenn. Code Ann. § 36-1-113(c)(1)-(2); In re Audrey S., 182

S.W.3d 838, 860 (Tenn. Ct. App. 2005).

Because of the fundamental nature of the parent’s rights and the grave consequences

of the termination of those rights, courts require individualized decision making and a higher

standard of proof in deciding termination cases. See Santosky v. Kramer, 455 U.S. 745, 769

(1982); In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999); In re M.W.A ., Jr., 980 S.W.2d 620,

622 (Tenn. Ct. App. 1998). Thus, both the grounds for termination and the best interest

inquiry must be established by clear and convincing evidence. Tenn. Code Ann. § 36-1-

113(c)(1); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Clear and convincing evidence

Each parent had appointed counsel at trial. Mother’s counsel filed the notice of appeal on her 2

behalf. Father filed his notice of appeal himself. Noticing this discrepancy, on November 14, 2012, this

court remanded the matter “to the trial court for a resolution of any and all questions regarding the father’s

representation on appeal . . . .” The trial court found that Father was no longer indigent and no longer

entitled to appointed counsel. Consequently, this court’s order of December 19, 2012 allowed Father to

continue to proceed pro se in this appeal. The December 19 order noted that “[i]f the father fails to file a

brief, the case shall be submitted for a decision on the record and briefs on file.” Father never submitted

a brief. We will proceed to consider the case in accordance with the December 19 order.

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“establishes that the truth of the facts asserted is highly probable, and eliminates any serious

or substantial doubt about the correctness of the conclusions drawn from the evidence.” In

re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004) (citations omitted). Such evidence

“produces in a fact-finder’s mind a firm belief or conviction regarding the truth of the facts

sought to be established.” Id.

In light of the heightened burden of proof required by Tenn. Code Ann. § 36-1-

113(c)(1), a reviewing court must adapt the customary standard of review set forth by Tenn.

R. App. P. 13(d). Id. at 654. First, we review the trial court’s findings of fact de novo with

a presumption of correctness unless the evidence preponderates otherwise, in accordance

with Tenn. R. App. P. 13(d). Id. Next, we must determine whether the facts, as found by the

trial court or as supported by the preponderance of the evidence, clearly and convincingly

establish the elements necessary to terminate parental rights. Id.

In this matter, Mother does not challenge the grounds for termination. Her argument

is based on the best interest of the children.

ANALYSIS

Tennessee Code Annotated section 36-1-113(i) contains a non-exhaustive list of

factors a trial court is required to consider in making the best interest determination:

(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

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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, controlled substances or controlled substance

analogues 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.

Every factor need not be applicable for the trial court to determine it is in the best

interest of the child for a parent’s rights to be terminated. See In re Audrey S., 182 S.W.3d

at 878. The best interest analysis is a fact-intensive inquiry requiring the court to consider the

unique facts of the case “from the child’s, rather than the parent’s, perspective.” In re

Giorgianna H., 205 S.W.3d 508, 523 (Tenn. Ct. App. 2006).

The trial court found that six of these factors weighed against the parents. The trial

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court found that it was in the best interest of the children to terminate the parental rights of

the parents. We have reviewed the record and find that the trial court’s conclusion is

supported by clear and convincing evidence. We, therefore, concur in the trial court’s

decision to terminate the parents’ parental rights.

Mother raises one other point at the end of her brief in the following three sentences:

[Mother] suffered irreparable harm due to the delay in bringing this petition.

The Trial Court made its findings as to best interest almost four years after the

Department of Children’s Services removed the children from the P[...] home.

For this reason the case should be reversed and custody should be returned to

The trial court did not discuss factor number 2 because the department was relieved of making 3

reasonable efforts in this case. The trial court found that factor 7 was irrelevant under the circumstances of

this case. The trial court also found that the parents paid child support. 

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[Father and Mother].

The conclusory statement in the first sentence is not supported by any citation to evidence.

See Tenn. R. App. P. 27(a)(7)(A). As to the second sentence, Mother ignores the fact that

the parents moved the trial court to stay the termination proceedings until after their criminal

proceedings. Thus, any delay was at her request and is not a reason to find prejudice.

Costs of appeal are assessed against DCS, due to Mother’s indigency and Father’s

lack of participation.

______________________________

ANDY D. BENNETT, JUDGE

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