IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs September 4, 2008

IN THE MATTER OF DERRICK B.

Appeal from the Juvenile Court for Macon County

No. 07-172872 Ken Witcher, Judge

No. M2008-01162-COA-R3-PT - Filed December 30, 2008

The trial court terminated the parental rights of Ethel B. (“Mother”) and David B. (“Father”) to their

son, Derrick B. (the “Child”), who was 11 at the time of trial. The trial court found, by clear and

convincing evidence, that several grounds for terminating Mother’s and Father’s parental rights

existed and that termination is in the best interest of the Child. Mother and Father appeal,

challenging the trial court’s finding that clear and convincing evidence of grounds to terminate were

established at trial. Mother and Father also challenge the trial court’s finding that clear and

convincing evidence was presented that termination of the parents’ rights is in the Child’s best

interest. We affirm.

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

Affirmed; Case Remanded

CHARLES D. SUSANO,JR.,J., delivered the opinion of the court, in which FRANK G. CLEMENT,JR.,

and ANDY D. BENNETT, JJ., joined.

William J. Butler, Lafayette, Tennessee, for the appellants, Ethel B. and David B. 

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General, and

Preston Shipp, Assistant Attorney General, General Civil Division, Nashville, Tennessee, for the

appellee, State of Tennessee, Department of Children’s Services.

I.

The genesis of this litigation is an earlier petition to declare the Child dependent and

neglected. The trial court granted the Department of Children’s Services (“DCS”) immediate

temporary protective custody of the Child and scheduled the petition for a hearing. In July 2006, the

court conducted a full evidentiary hearing on DCS’s petition seeking to have the Child adjudicated

dependent and neglected. The trial court granted the petition. The court’s order provides, in

pertinent part, as follows:
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Upon the evidence presented, statements of counsel and the record as

a whole, the Court finds that the State has proven by clear and

convincing evidence that [the Child] . . . is dependent and neglected

within the meaning of the law . . . . 

The finding of dependency and neglect is based upon the following

findings of fact:

[Mother and Father] are unfit to properly care for the child, the child

is under improper guardianship and control as to endanger the morals

and health of the child and the child is suffering from abuse.

This finding is based upon the fact that [Father] has on numerous

occasions committed an act of sexual abuse and rape of a minor child

in his custody on [his nieces]. [Father] threatened to kill [his nieces]

if they reported the sexual abuse and rape. This type of conduct

places [the Child] at risk and the acts place the child in a situation that

is a danger to his morals and health. [Father] has physically abused

[his nephew and nieces] by hitting them with his fist in the head and

body. [Father] has thrown knives at [his nephew] placing him at

substantial risk of serous bodily injury. [Father] has provided alcohol

to [his nephew and the Child]. [Father] has provided a controlled

substance to [his nephew]. [Father] has physically abused [the Child]

by hitting him with his fist and by whipping him excessively on

numerous occasions. [Father] has an alcohol problem. . . . [Father]

has been violent and abusive to [Mother] . . . in the presence of [the

Child].

[Mother’s] testimony is not credible. The evidence showed that

[Mother] is not protective of [the Child] and of other children in the

home. She did not tell the truth about the abuse [Father] has

perpetrated upon [the Child]. [Mother] failed to be honest about what

was going on in her home regarding the allegations that [Father] had

raped his nieces placed in his care. [Mother] went further than failing

to tell the truth about the abuse and she lied for [Father]. She is an

unbelieving parent and she lies to protect [Father]. She has

repeatedly chosen to protect her husband over her children. . . .

[Mother] has engaged in inappropriate contact with [the Child] by

touching his private parts when it was not necessary and when he did

not want it. . . . [Mother] has engaged in illegal conduct by selling

controlled substances from her home. [Mother] is currently on

probation for selling controlled substances.
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Based upon the foregoing, the Child was removed from his parents’ home and placed in foster care.

No appeal was taken from the order finding the Child dependent and neglected.

The petition to terminate parental rights was filed in September 2007. In the petition, DCS

sought to terminate the parental rights of Mother and Father on three different grounds. First,

pursuant to T.C.A. § 36-1-113(g)(2), DCS alleged that both parents had failed to substantially

comply with the statement of responsibilities contained in their permanency plans, despite reasonable

efforts on the part of DCS to assist them with compliance. Next, pursuant to T.C.A. § 36-1-

113(g)(3), DCS alleged that: (1) the Child had been removed from the home for a period of at least

six months by order of the court; (2) the conditions which led to the Child’s removal from the home

still exist and other conditions exist which in all likelihood would cause the Child to be subjected

to further abuse or neglect; (3) it was unlikely that the Child could be returned to either Mother or

Father in the near future; (4) there was little likelihood that the conditions that prevented the Child

from being returned to the custody of Mother and/or Father would be remedied at an early date; and

(5) continuation of the parent-child relationship with either or both parents greatly diminishes the

Child’s chances of early integration into a safe and stable home. The third ground for termination

was based on T.C.A. § 36-1-113(g)(4). Specifically, DCS alleged that Father had committed severe

child abuse on children that had lived in his home and Mother knowingly failed to protect these

children from said abuse. Finally, DCS alleged that it was in the Child’s best interest for the parental

rights of Mother and Father to be terminated. 

In January 2008, a trial was held on DCS’s petition. The first witness at trial was Jeffrey

Scott Herman, a senior psychological examiner and licensed professional counselor. He had worked

in the mental health profession since 1989 and had worked, for the entire period, with children who

are victims of abuse or neglect. Herman had received training from the Sex Offender Treatment

Board as well as training for evaluating sex offenders and determining whether a given offender

posed a continuing risk. The trial court accepted Herman as an expert witness after counsel for

Mother and Father had an opportunity to voir dire him as to his qualifications. 

Herman conducted a psychological evaluation on Father, which included a sex offender

assessment. The psychosexual examination revealed that Father was attempting to minimize or even

conceal interest and information on the sex-related items. Herman acknowledged that, absent an

admission, there is no way a psychosexual assessment could definitively ascertain if an individual

is a sex offender. However, in the field of psychosexual analysis, a polygraph examination is an

accepted tool to use in an assessment. Herman added that it was an accepted practice in his

profession to rely upon the results of a polygraph examination when evaluating and treating patients.

Herman stated that the psychosexual assessment on Father was inconclusive due to his defensiveness

on the sex-related questions. The test also revealed that Father was in “severe psychological

distress.” He also was diagnosed as being alcohol dependent. According to Herman, alcohol use

is associated with increased risk for domestic violence as well as physical and/or sexual abuse of

children. The test revealed that Father had several mistaken ideas of what is normally accepted as

right and wrong regarding sexual behaviors. Based on these results, Herman questioned Father
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further and Father changed his answers, indicating either that he was lying or that he did not

understand the questions the first time. 

Herman’s final conclusion was that Father had a cognitive distortion of the effects of sexual

acts with children. According to Herman, “some of the items [Father] had endorsed . . . are things

that are commonly used by sex offenders as rationalizations for sex offenses, and that concerned

me.” Herman testified as follows:

Q. Given this Court’s finding that [Father] sexually abused and raped

his nieces, repeatedly, is sex offender treatment, in your opinion,

necessary and successful completion of it [necessary] in order to

protect children who would be in his care and control?

A. Yes. . . . [And ongoing polygraph examinations would be

necessary] to make sure the person is complying with a safety plan.

Herman then added that sex offenders who do not complete a residential treatment program are at

a much higher risk of recidivism and, without completion of treatment, no child is safe in a sex

offender’s care. 

Herman also evaluated Mother. Herman stated that Mother received a very low score on the

comprehension sub-scale on one of the tests, and that sub-scale:

basically measures a person’s comprehension of what’s going on

around them, and that was low, and if a person is residing in a house

with a person that has been found to be a sex offender, I would be

very concerned about are they aware of everything that is happening,

are they adequately aware of the risk factors. So, yes, that would be

a risk factor in this case.

Q. In your opinion would that be a risk factor that would prevent

[Mother] from protecting her son . . . from sexual abuse by [Father]

if [the Child] was back in the home?

A. Yes. 

The earlier order by the Juvenile Court recited a finding that Father had provided alcohol to

the Child and had hit him. According to Herman, this type of behavior is likely to cause

psychological damage to the Child. Herman added:

[A]buse increases the risk of post-traumatic stress disorder. It’s

demonstrated in impaired social functioning. . . . [Abuse] increases
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the risk of delinquency and it would also increase the risk of

depression. We know school functioning also drops.

Q. As to [the Child], if he was in the same household, was in the

environment where his cousins are being physically abused, sexually

abused . . . is the exposure to all of this abuse likely to result or cause

[psychological problems?]

A. They are the same risk factors . . . . The research has shown that

children who witness domestic violence suffer the same negative

psychological and social outcomes as children that are physically

abused directly.

Herman then stated that having one parent who fails to protect the child from the other parent also

contributes to the psychological impact of the abuse. “[L]ogically, the child feels abandoned when

they’re not protected by another parent in the home.”

Herman also evaluated the Child. The Child explained to Herman a time when, while in the

care of Mother and Father, the Child told his parents that he was being threatened by someone and

Father gave him a switchblade to put under his pillow at night. Herman explained that he had two

concerns about this situation:

One, I’m concerned about the impact of a child – I’m concerned

about sending a child the message of we can’t protect you, you have

to protect yourself, from what he perceives is a life-threatening

situation. Regardless of whether that’s accurate or not, that’s the way

the child perceived it. Secondly, we know that children copy

behaviors they see . . . , so we’ve got a child that’s had all these

behaviors modeled and then we’re giving him a weapon? I’m not

saying the child would definitely copy the behaviors [he has] seen but

there definitely is a risk thereof. 

Herman testified to the importance of stability in a child’s life. When asked what impact would

occur on the Child’s mental health if permanency was delayed and he did not know if he was going

to return home or continue in foster care, Herman concluded that this would result in “[i]ncreased

anxiety and impaired social development.”

A lot of Herman’s testimony was based upon his reports created after evaluating Father,

Mother, and the Child. Herman’s report on Father contains the following: 
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REVIEW OF RECORDS

A report of a polygraph examination conducted on [Father] . . . on

June 7th 2006 was provided to the examiner . . . . The report

indicates that he was asked relevant questions about contact with his

nieces’ vagina[s]. The conclusion of the evaluation was “it is

therefore my professional opinion that [Father] was not truthful/lied

when he answered the relevant questions as listed above.” 

(Capitalization and bold print in original.)

During direct-examination of Herman, counsel for Father objected to any information being

admitted at trial concerning Father not passing the polygraph examination. Father’s counsel sought

to have the quoted excerpt and any mention of the failed polygraph examination removed from

Herman’s report. Following extensive arguments by counsel, the trial court denied the motion,

stating:

The Court is going to deny [Father’s] motion to strike that paragraph.

As [counsel for DCS] stated, the previous order does reflect that the

Court has made the finding of abuse already so that particular issue

that’s addressed in this paragraph about whether he sexually abused

[his nieces] has already been decided by the Court and so I can’t see

any harm in that statement being – any harm to [Father] in that

statement being in this report. And I do also believe the fact that the

testimony of this witness has been that polygraph tests are routinely

used and accepted as part of the treatment, that, again, I think weighs

against [Father’s] motion to strike. So the motion is denied. 

The next witness was Clay Farris, a clinical case worker employed by Health Connect

America. Health Connect America furnishes contract work for DCS. Farris has received specialized

training with respect to treating sex offenders. Farris treated Father from March 14, 2007, through

May 30, 2007. Farris “restarted” treating Father again a few days prior to trial. Farris stated that

during Father’s treatment, he sometimes had problems with Father being able to retain what they had

worked on in the previous session. Because of Father’s complaints of being “bullied” at the first

polygraph examination, Farris arranged for a second polygraph examination. The results of the

second polygraph examination were the same as the first and showed deception. Farris discontinued

treatment because Father continued to deny that he had sexually abused his nieces. However, on one

occasion, Father admitted doing “what he called a ‘titty twister’ on one of his nieces.” 

On cross-examination, Farris was questioned about his notes of April 12 wherein he asked

Father if he was thinking about the materials that had been furnished to him. Farris acknowledged

that his notes state that he:
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spoke with client about the materials presented thus far, inquired if

client engaged in thought about these materials when not with case

manager. Client denies thinking about the material on his own time.

Client goes on to state that this is BS to have to go through with when

you’re innocent of any wrongdoing. He states that the Pathfinders

and anger management classes were a waste of time and government

money.

Kim Matthews was called as the next witness. She is employed by DCS as a family service

worker and was assigned to the Child’s case when he came into the custody of DCS. Matthews

developed the permanency plans for both parents. She testified that both parents signed the

permanency plans as well as the criteria for termination of parental rights. She stated that neither

parent made adequate progress or change such that the Child could be returned to their care.

Matthews testified that the requirements in the permanency plans were reasonable and necessary.

As pertinent to this appeal, she testified as follows:

Q. For [Mother], you’ve stated in the petition for termination of

parental rights that the requirements in the permanency plan she did

not complete were protecting the children from sexual abuse,

attending counseling that addressed protecting the child from sexual

abuse and the harm caused by the sexual abuse, and verbally

expressing her understanding of the trauma caused by the sexual

abuse and the need to protect her child from the sexual abuse. Is that

still correct, that’s the portion of the permanency plan that she has not

complied with?

A. Yes.

Q. And in all fairness, she has complied with a number of other

requirements in the plan, such as the A and D treatment and going to

counseling for anger management and other issues, hasn’t she?

A. Yes.

Q. Given the reasons for removal, what is the most important thing

as far as [Mother] is concerned that she do and demonstrate a change

in order to make it safe for [the Child] to return home?

A. Well, to protect her child from sexual abuse. That was an issue.

Q. Again, with [Father] . . . you put in the petition he’s not

done . . . the psychosexual results were inconclusive due to his
 Matthews was questioned extensively as to the reasonable efforts she made on both parents’ behalf. Whether 1

Matthews and/or DCS made a reasonable effort on the parents’ behalf is not an issue on appeal so we have omitted this

testimony. Having said that, we would point out that the record affirmatively reflects that reasonable efforts were made.

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defensiveness and he’s failed to complete treatment for the sex

offenses. Is that still correct?

A. Yes. . . .

Q. [Father] has completed A and D treatment through Pathfinders

and gone to anger management and counseling at – 

A. Valley Ridge.

Q. – Valley Ridge. What is the most important thing, though, in the

perm[anency] plans for him to successfully complete in order to

safeguard [the Child] if he were returned to the home?

A. The sex offender classes.1

* * *

Q. In your opinion do the conditions still exist that caused [the

Child] to be removed from the home of [Mother and Father], or do

other conditions exist which would in all probability cause the child

to be subject to further abuse or neglect making it unlikely he could

be returned to them in the near future?

A. Yes. . . .

Q. In your opinion is their [sic] little likelihood that these conditions

would be remedied at an early date so the child could be returned to

[Mother or Father] in the near future?

A. Yes.

Q. In your opinion is the continuation of the parent/child

relationship, does it greatly diminish [the Child’s] chance of early

integration into a stable and permanent home . . . ?

A. Yes.

Q. Do [Mother and Father] continue to reside together?
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A. Yes.

Q. Has [Mother] demonstrated or been able to vocalize to you any

change that would demonstrate that she would protect her child from

sexual abuse?

A. No.

Q. Has she been able to vocalize or demonstrate to you any change

to show that she would no longer touch her son’s genitals or

buttocks?

A. No. . . .

Q. In your opinion have [Mother or Father] made an adjustment of

circumstances, conduct or condition as to make it safe and in the

child’s best interest to be in the home of the parents?

A. No.

Q. In your opinion have [Mother or Father] failed to effect a lasting

adjustment after reasonable efforts by available social agencies for

such a duration of time that lasting adjustment does not appear

reasonably possible?

A. Yes. 

Matthews also testified that the Child’s older brother had been removed from Mother and

Father’s home in West Virginia when the Child was a few months old. The older child was removed

based on physical abuse at the hands of Father. Mother’s parental rights to this child were

terminated years ago by the State of West Virginia. Father was not the biological father of this older

child.

For the sake of brevity, we will not summarize the testimony of the Child’s former and

current foster parents. Suffice it to say, however, that the record reflects that the Child has been

placed in good foster homes and is doing well. The current foster parents, who have four children

of their own, intend to adopt the Child if he is made available for adoption.

Mother testified that she has taken care of the Child since his birth and that there is no reason

why she could not continue to care for him. Mother is on social security disability and receives $956

a month. Father also receives social security disability benefits. Mother and Father rent a two

bedroom trailer. The Child has his own bedroom. When asked why she stayed with Father, Mother

stated it was because she knew he did not do anything wrong. The Child has told Mother that he
 We are omitting several of the numbered paragraphs from the trial court’s order which have no bearing on

2

this appeal.

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wants to come home. Mother testified that she knows it is wrong for an adult to have any kind of

sexual contact with a child. Mother acknowledged that she is on probation and stated that she has

not violated her probation. Father chose not to testify at trial.

Following the trial, the trial court entered a detailed order terminating the parental rights of

Mother and Father. According to the trial court :

2

The Court finds that the State of Tennessee, Department of Children’s

Services has made reasonable efforts to assist [Mother and Father] in:

(1) visiting the child; (2) establishing a suitable home for the child;

(3) complying with the requirements in the permanencyplans; and (4)

remedying the conditions that necessitate foster care.

The Court finds that the State of Tennessee, Department of Children’s

Services has proven by clear and convincing evidence grounds for

termination of parental rights based upon the following findings of

fact.

[The Child] was placed in the custody of the Tennessee Department

of Children’s Services due to dependency and neglect on March 23,

2006.

[The Child] has remained continuously in foster care since March 23,

2006.

[Mother] has not substantially complied with the provisions of the

permanency plans and therefore her parental rights are terminated

pursuant to Tenn. Code Ann. § 36-1-113(g)(2).

The permanency plans require her to protect the [Child]. She

continues to reside with [Father]. She continues to believe [Father]

and to protect him and not the child. She is entitled to do so, but as

long as she does, she is not in substantial compliance with the

permanency plans.

The requirements in the permanency plans are all reasonably related

to remedying the conditions that necessitate foster care. The

requirement to protect her child from sexual abuse is of primary

importance. 
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The Department made reasonable efforts to assist [Mother] in

complying with the requirements in the permanency plan by

providing gas cards for transportation to appointments, setting up and

paying for a psychological evaluation, setting up and paying for a

parenting assessment, setting up and paying for therapeutic visitation,

setting up an A&D assessment, setting up and paying for A&D

treatment, providing random drug screens, setting up and paying for

hair follicle drug screens and mental health counseling. 

[Mother] was advised on March 28, 2006, January 18, 2007 and July

5, 2007 that failure to substantially comply with the permanency

plans was grounds for termination of parental rights. [Mother] signed

the acknowledgment of receipt of the Criteria and Procedure for

Termination of Parental Rights on March 28, 2006, January 18, 2007

and July 5, 2007.

[Father] has not substantially complied with the provisions of the

permanency plan and therefore his parental rights are terminated

pursuant to T.C.A. 36-1-113(g)(2).

The permanency plans require him to complete sex offender

treatment. The Court has made findings that [Father] sexually abused

and raped his nieces. The Court finds that he is in need of treatment

as a sex offender. [Father] does not have to admit to these sex

offenses, but to successfully complete sex offender treatment he must

either admit to the offense or pass a polygraph examination. The

Court heard credible expert testimony from Scott Herman, who is a

senior psychological examiner, that sex offender therapist[s] rely

heavily on polygraph examinations. The use is accepted in their

profession. They place more reliance on the polygraph evaluation

than on the court’s findings. 

The requirements in the permanency plans are all reasonably related

to remedying the conditions that necessitate foster care. The

requirement to complete a psychosexual evaluation and follow all

recommendations was particularly important in reducing the risk of

harm to the child so that the child could have been safely returned to

the parent’s care.

Even though both parents completed a number of tasks on the

permanency plans, they did not complete the most important task.
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The Department made reasonable efforts to assist [Father] in

complying with the requirements in the permanency plan by

providing a polygraph, gas cards for transportation to appointments,

setting up and paying for a psychological evaluation, setting up and

paying for a parenting assessment, setting up and paying for

therapeutic visitation, setting up an A&D assessment, setting up and

paying for A&D treatment, providing random drug screens, setting up

and paying for hair follicle drug screens, mental health counseling,

setting up a psychosexual evaluation on two occasions and anger

management counseling.

[Father] was advised on March 28, 2006, January 18, 2007 and July

5, 2007 that failure to substantially comply with the permanency

plans was grounds for termination of parental rights. [Father] signed

the acknowledgment of receipt of the Criteria and Procedure for

Termination of Parental Rights on March 28, 2006, January 18, 2007

and July 5, 2007.

The Child has been removed from the custody of the parents for more

than six (6) months; the conditions which led to the removal of the

child from the home of [Mother and Father] still exist and other

conditions exist which in all probability would cause the child to be

subject to further abuse and/or neglect, making it unlikely that the

child could be returned to [Mother or Father] in the near future; there

is little likelihood that these conditions will be remedied at an early

date so that the child can be returned to [Mother or Father] in the near

future; the continuation of the parent or guardian and child

relationship greatly diminishes the child’s chances of an early

integration into a stable and permanent home and therefore their

parental rights are terminated pursuant to Tenn. Code Ann. § 36-1-

113(g)(3).

The conditions that led to the removal of the child from the home of

[Mother and Father] are that [Father] sexually abused his nieces . . .

who were residing with him at the time; [Father] threatened to kill

these girls if they reported the sexual abuse; [Father] physically

abused [his nieces and nephew] by hitting them with his fist in the

head and body; [Father] threw knives at [his nephew]; [Father]

provided alcohol to [his nephew and the Child]; [Father] provided a

controlled substance to [his nephew], [Father] physically abused [the

Child] by hitting him with his fist and whipping him excessively;

[Father] had an alcohol and substance abuse problem; [Father] was

violent and abusive towards his wife in the child’s presence . . . and
 Exhibit 4 is an “Adjudicatory and Dispositional Hearing Order” entered by the trial court in August 2006. 3

This order was discussed at the beginning of this opinion and is the order initially finding the Child to be dependent and

neglected.

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[Mother] failed to protect the children in her home from the abuse by

[Father]; [Mother] lied for [Father]; [Mother] engaged in

inappropriate contact with [the Child] by touching his genitals and

buttock to assist him using the bathroom and bathing, despite his

being able to complete these task[s] without assistance, [Mother]

failed to give her child medication as prescribed; [Mother] sold

controlled substances; all of which endangered the moral, health and

physical well-being of [the Child].

The conditions that prevent the child’s return to the parent[s’] home

are that [Father] is an untreated sex offender and [Mother] continues

to be non[-]protective.

The Department made reasonable efforts to assist the parents in

remedying the conditions that necessitate foster care by providing a

polygraph, gas card for transportation to appointments, setting up and

paying for a psychological evaluation, setting up and paying for a

parenting assessment, setting up and paying for therapeutic visitation,

setting up and paying for A&D treatment, providing random drug

screens, setting up and paying for hair follicle drug screens, mental

health counseling, setting up and paying for a psychosexual

evaluation on two occasions and anger management counseling.

[Mother and Father] have committed severe child abuse as defined by

Tenn. Code Ann. § 37-1-102(b)(21) against [two nieces and a

nephew], who are children who resided temporarily or permanently

in the home of [Mother and Father], and therefore their parental rights

are terminated pursuant to Tenn. Code Ann. § 36-1-113(g)(4).

Exhibit 4 contains an un-appealed finding that [Father] committed 3

numerous acts of rape against [his two nieces]. This meets the

criteria for severe child abuse found at Tenn. Code Ann. § 37-1-

102(b)(21)(C). Exhibit 4 also contains a finding that [Father] threw

knives at his nephew. This act was likely to cause severe bodily harm

or death and meets the criteria for severe child abuse found at Tenn.

Code Ann. § 37-1-102(b)(21)(A).

Exhibit 4 also contains findings that [Father] hit [his nieces and

nephew] in the head and body. He exposed them to domestic
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violence. He gave drugs and alcohol to [his nephew]. In the opinion

of a qualified expert, Scott Herman, these acts and the environment

the children were exposed to was reasonably expected to produce

several of the disorders set out in Tenn. Code Ann. § 37-1-

102(b)(21)(B), including severely impairing the children’s ability to

function adequately in their environments.

Mother knowingly failed to protect the children from severe child

abuse. She knowingly failed to protect [her nieces] from rape. She

lied and attempted to protect [Father] from charges of rape. She

knowingly failed to protect [the Child and her nieces and nephew]

from [Father] hitting them in the head and body with his fist. She

knowingly failed to protect the children from an environment that

pursuant to qualified expert testimony could be reasonably expected

to cause the children severe disorders set out in Tenn. Code Ann.

§ 37-1-102(b)(21)(B).

(Footnote added; paragraph numbering in original omitted.)

After determining that these findings demonstrated, clearly and convincingly, that grounds

for termination of Mother’s and Father’s parental rights exist, the trial court undertook a best interest

analysis. After reviewing the pertinent statutory factors set forth in T.C.A. § 36-1-113(i), the trial

court determined that it had been proven, clearly and convincingly, that it was in the Child’s best

interest for Mother’s and Father’s parental rights to be terminated. 

II.

Mother and Father appeal the trial court’s final judgment. They both claim that the trial court

erred when it found clear and convincing evidence that: (1) grounds to terminate their parental rights

had been established; and (2) it was in the Child’s best interest for the parents’ rights to be

terminated. As a related issue, Mother and Father claim that the trial court placed excessive reliance

upon Father having failed two polygraph examinations. 

III.

In cases involving the termination of parental rights, our duty on factual matters is to

“determine whether the trial court’s findings, made under a clear and convincing standard, are

supported by a preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn.

2006). The trial court’s findings of fact are reviewed de novo upon the record accompanied by a

presumption of correctness unless the preponderance of the evidence is otherwise. Id.; Tenn. R.

App. P. 13(d). Questions of law are reviewed de novo with no presumption of correctness.

Langschmidt v. Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).
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Trial courts, unlike appellate courts, are able to observe witnesses as they testify and to assess

their demeanor. Thus, trial courts are in a unique position to evaluate witness credibility. See State

v. Pruett, 788 S.W.2d 559, 561 (Tenn. 1990). Accordingly, appellate courts will not re-evaluate a

trial court’s assessment of witness credibility absent clear and convincing evidence to the contrary.

See Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999), Humphrey v. David

Witherspoon, Inc., 734 S.W.2d 315, 315-16 (Tenn. 1987).

Parents have a fundamental right to the care, custody, and control of their children. Stanley

v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); O’Daniel v. Messier, 905 S.W.2d

182, 186 (Tenn. Ct. App. 1995) rev’d on other grounds, In re Swanson, 2 S.W.3d 180 (Tenn. 1999);

In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988). This right “is among the oldest of the

judicially recognized liberty interests protected by the Due Process Clauses of the federal and state

constitutions.” In re M.J.B., 140 S.W.3d 643, 652-53 (Tenn. Ct. App. 2004). “Termination of a

person’s rights as a parent is a grave and final decision, irrevocably altering the lives of the parent

and child involved and ‘severing forever all legal rights and obligations’ of the parent.” Means v.

Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003)(quoting T.C.A. § 36-1-113(l)(l)). “Few

consequences of judicial action are so grave as the severance of natural family ties.” M.L.B. v.

S.L.J., 519 U.S. 102, 119, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (quoting Santosky v. Kramer, 455

U.S. 745, 787, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)).

While parental rights are superior to the claims of other persons and the government, they

are not absolute, and they may be terminated upon appropriate statutory grounds. See Blair v.

Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process requires clear and convincing evidence

of the existence of the grounds for termination of the parent-child relationship. In re Drinnon, 776

S.W.2d at 97. T.C.A. § 36-1-113 (Supp. 2008) governs termination of parental rights in this state.

A parent’s rights may be terminated only 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) [t]hat termination of the parent’s or guardian’s rights is in the best interest[] of the child.”

T.C.A. § 36-1-113(c); In re F.R.R., III, 193 S.W.3d at 530. Both of these elements must be

established by clear and convincing evidence. See T.C.A. § 36-1-113(c)(1); In re Valentine, 79

S.W.3d 539, 546 (Tenn. 2002). The existence of at least one statutory basis for termination of

parental rights will support the trial court’s decision to terminate those rights. In re C.W.W., 37

S.W.3d 467, 473 (Tenn. Ct. App. 2000), abrogated on other grounds, In re Audrey S., 182 S.W.3d

838 (Tenn. Ct. App. 2005).

The heightened burden of proof in parental termination cases minimizes the risk of erroneous

decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct.

App. 1998). Evidence satisfying the clear and convincing evidence standard establishes that the truth

of the facts asserted is highly probable, State v. Demarr, No. M2002-02603-COA-R3-JV, 2003 WL

21946726, at *9 (Tenn. Ct. App. M.S., filed August 13, 2003), and eliminates any serious or

substantial doubt about the correctness ofthe conclusions drawn from the evidence. In re Valentine,

79 S.W.3d at 546; In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d

919, 925 (Tenn. Ct. App. 2004). It produces in a fact-finder’s mind a firm belief or conviction
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regarding the truth of the facts sought to be established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn.

Ct. App. 2002); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d

at 474.

IV.

Beforewe address whether groundsto terminate parental rights had been established, we will

discuss the trial court’s use of and reliance upon Father’s failed polygraph examinations. We

addressed this same issue in In re P.J.G., No. E2006-02003-COA-R3-PT, 2007 WL 1237789 (Tenn.

Ct. App. E.S., filed April 27, 2007), perm. app. denied August 6, 2007. In that case we stated:

Father’s final evidentiary issue is his claim that the report should have

been excluded because it relied, in part, on a polygraph examination

that was inadmissible. Father relies on State v. Pierce, 138 S.W.3d

820 (Tenn. 2004), a case in which the Supreme Court determined that

the trial court erred in relying on the results of the defendant’s sex

offender polygraph examination when denying the defendant’s

request for parole. In reaching this conclusion, the Supreme Court

specifically noted that the “propriety of using polygraph tests in

treatment and monitoring programs for sex offenders was not at issue

in [that] case.” Id. at 825 n.7. The Court also referenced T.C.A.

§ 39-13-704(d)(2) which discusses the use of polygraph examinations

when monitoring and treating “sex offenders who have been ‘placed

on probation, incarcerated with the department of correction, placed

on parole, or placed in community corrections.’” Id. (quoting T.C.A.

§ 39-13-704(d)(2)). We note, in resolving this issue, that the

polygraph results are not being used in a criminal context to establish

Father’s guilt or innocence or to establish whether he is entitled to

parole. See In re A.J.H., No. M2005-00174-COA-R3-PT, 2005 WL

3190324, at *10 (Tenn. Ct. App. M.S., filed November 28, 2005), no

appl. perm. appeal filed (discussing the impact of the father’s prior

refusal to take a polygraph examination and noting that “[t]here is no

statutory prohibition in the use of polygraph tests as a part of a

psychosexual evaluation in this non-criminal context.”). . . . The

results of the polygraph examination were utilized by Mize for one

limited purpose, i.e., to emphasize that Father was not being truthful

when he denied sexually abusing J.H. 

In re P.J.G., 2007 WL 1237789, at * 10-11. In light of P.J.G., we conclude that the trial court

properly considered Father’s failed polygraph test results and we reject the claim that the trial court

placed undue emphasis on them. 
 T.C.A. § 36-1-113(g) has been amended effective January 1, 2009. Even though the amendment has no

4

impact on the present case, we will, nevertheless, cite to the version of the statute in effect at the time of trial throughout

this opinion. 

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Mother’s and Father’s parental rights were terminated pursuant to T.C.A. § 36-1-113(g)(2) -

(4) (2005). These statutory provisions provide as follows: 4

(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; [and]

(4) The parent or guardian has been found to have committed severe

child abuse as defined in § 37-1-102, under any prior order of a court

or is found by the court hearing the petition to terminate parental

rights or the petition for adoption to have committed severe child

abuse against the child who is the subject of the petition or against

any sibling or half-sibling of such child, or any other child residing

temporarily or permanently in the home of such parent or guardian[.]
 The statutes referenced in T.C.A. § 37-1-102(b)(21)(C) pertain to various sexual offenses including aggravated 5

sexual battery, aggravated rape, rape of a child, etc.

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The definition of “severe child abuse,” referenced in T.C.A. § 36-1-113(g)(4) and relied upon

by the trial court in the present case, is found at T.C.A. § 37-1-102(b)(21)(A)-(C) (2005), which

provide as follows:

“Severe child abuse” means:

(A) The knowing exposure of a child to or the knowing failure to

protect a child from abuse or neglect that is likely to cause great

bodily harm or death and the knowing use of force on a child that is

likely to cause great bodily harm or death;

(B) Specific brutality, abuse or neglect towards a child that in the

opinion of qualified experts has caused or will reasonably be expected

to produce severe psychosis, severe neurotic disorder, severe

depression, severe developmental delay or retardation, or severe

impairment of the child’s ability to function adequately in the child’s

environment, and the knowing failure to protect a child from such

conduct; [or]

(C) The commission of any act towards the child prohibited by

§§ 39-13-502--39-13-504, 39-13-522, 39-15-302, and 39-17-1005 or

the knowing failure to protect the child from the commission of any

such act towards the child . . . .5

The evidence does not preponderate against the trial court’s finding that there is clear and convincing

evidence (1) Father was guilty of committing “severe child abuse” as defined by the applicable

statutes and (2) Mother “failed to protect the child from the commission of any such act towards the

child.” T.C.A. § 37-1-102(b)(21)(C).

The next issue is whether the trial court erred when it found that DCS had proven, clearly and

convincingly, that Mother’s and Father’s parental rights should be terminated pursuant to T.C.A.

§ 36-1-113(g)(2). While there may be several requirements in a permanency plan, some may be

more critical than others. Given the findings of the trial court at the dependency and neglect hearing,

protecting the Child from sexual or physical abuse was paramount. Matthews testified that Mother

failed to complete counseling geared toward Mother learning to protect the Child from abuse and

Mother never showed an ability to so protect the Child. This is critical given the trial court’s finding

that Mother lied on behalf of Father and was trying to protect him, to the detriment of the Child.

Likewise, with Father, completion of sex offender treatment was critical to his case. Without

successful completion of sex offender treatment and recommendations from that treatment, DCS

would be unable to return the Child to Father’s care. Accordingly, we affirm the judgment of the
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trial court finding, clearly and convincingly, that Mother and Father failed to substantially comply

with the requirements in their respective permanency plans. 

We next determine whether the trial court properly found that additional grounds for

terminating Mother’s and Father’s parental rights had been proven pursuant to T.C.A. § 36-1-

113(g)(3). There is no doubt that the Child has been removed from the home for at least six months

pursuant to order of the court. Without Mother and Father taking and successfully completing

counseling and/or treatment, there is a likelihood of continued abuse which prevents the Child from

safely being returned to their care. There was no proof offered at trial suggesting that the conditions

subjecting the Child to potential further abuse could or would be remedied at an early date which

would thereby allow the Child’s return to his biological parents’ care in the near future. The Child

has been in foster care since March 2006. He has been in good foster homes and his current foster

family is desirous of adopting him. Continuation of the parent/child relationship would greatly

diminish the Child’s chances for integration into a stable and safe home environment. We affirm

the trial court’s finding that grounds had been proven clearly and convincingly pursuant to T.C.A.

§ 36-1-113(g)(3). 

The next issue is whether the trial court correctly found that grounds had been proven

pursuant to T.C.A. § 36-1-113(g)(4). As applicable to the present case, this statute provides that

grounds for terminating parental rights exist when:

The parent or guardian has been found . . . by the court hearing the

petition to terminate parental rights or the petition for adoption to

have committed severe child abuse [as defined in § 37-1-102] against

the child who is the subject of the petition . . . or any other child

residing temporarily or permanently in the home of such parent or

guardian[.]

T.C.A. § 36-1-113(g)(4) (emphasis added).

With respect to Mother, the trial court specifically found that she had knowingly failed to

protect the Child from abuse by Father. In fact, the trial court found that Mother had actually lied

to protect Father, all to the detriment of the Child and other children that had lived in the house.

Thus, Mother knowingly failed to protect the Child from severe abuse. T.C.A. § 37-1-

102(b)(21)(A). The testimony at trial was that the abuse committed by Father upon the Child and

other children living in the house was such that the abuse was likely to cause great bodily harm to

all of the children. This is no great leap considering the seriousness of the abuse Father was found

to have committed. The testimony of Herman, which was unchallenged, was that the abuse inflicted

by Father was likely to cause one if not more of the various psychological problems listed in T.C.A.

§ 37-1-102(b)(21)(B). We affirm the trial court’s judgment finding DCS had proven, clearly and

convincingly, that grounds existed to terminate the parental rights of Mother and Father pursuant to

T.C.A. § 36-1-113(g)(4). 
-20-

The final issue is whether the trial court erred when it concluded that DCS had proven,

clearly and convincingly, that it was in the Child’s best interest for Mother’s and Father’s parental

rights to be terminated. The relevant statutory provision is T.C.A. § 36-1-113(i) (2005), which

provides as follows:

(i) 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;

(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) Whetherthe 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
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(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.

T.C.A. § 36-1-113(i). When considering the child’s best interest, the court must take the child’s,

rather than the parent’s, perspective. White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).

The facts establish that neither Mother nor Father have made an adjustment of circumstance

such that it would be safe for the Child to return to their care. This is the situation despite reasonable

efforts made by DCS. The Child has been in foster care since March 2006 and the parents have had

ample time to effect a lasting adjustment. There is no doubt that Father “has shown brutality,

physical, sexual, emotional or psychological abuse, or neglect toward the child, or another child or

adult in the family or household[.]” T.C.A. § 36-1-113(i)(6). Mother, likewise, failed to protect the

Child from Father’s abuse. The physical environment of the biological parents’ home is neither

healthy nor safe for the Child. After reviewing the applicable factors in light of the facts discussed

at length above, we readily conclude that the evidence does not preponderate against the trial court’s

conclusion, made by clear and convincing evidence, that termination of Mother’s and Father’s

parental rights is in the Child’s best interest.

V.

The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellants, Ethel

B. and David B., and their surety, if any, for which execution may issue. This case is remanded to

the trial court for enforcement of the court’s judgment and for the collection of costs assessed below,

all pursuant to applicable law. 

_______________________________

CHARLES D. SUSANO, JR., JUDGE