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

pril 6, 2001
IN THE MATTER OF: C.L.H., DO

B, 7/23/95 AND L.

L.H., JR.,

DOB, 9/12/97
Appeal from the Juvenile Court for Dickson County No. 01-98-001-CC A. Andrew Jackson, Judge

No. M2000-02799-COA-R3-JV - Filed June 5, 2001

The juvenile court of Dickson County granted a petition to terminate the parental rights of the natural parentsof two children. The parents raise several issues on appeal, including (1) the juvenile court’s refusal to grant a continuance, and (2) the court’s conclusion that the grounds for termination were proved by c

lear and convinc

ing evidence. We

affirm the termin

ation of parenta

l rights. 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 , Jr. and W ILLI

AM B. C AIN , JJ. joined. Timothy V. Pott

er, Dickson, Ten

nessee, for app

ellant, J.M.S. J. Reese Holley, Charlotte, Tennessee, for the appellant, L.L .H.

Paul G. Summers, Attorney General and Reporter, and Elizabeth C . Driver, Assistant Attorney General, for th

e appellee, Dep

artment of Childre

n’s Services.
OPINION

I.
The appellants, J.M.S. (“Mother”) and L.L.H. (“Father”) are the parents of C.L.H., born July 23, 1995, and L.L

.H., Jr., born Septe

mber 12, 1997. The

appellants

were not married, and they lived withFather’s parents. On December 29, 199 7, L.L.H., Jr. was taken to the hospital in Dickson, Tennessee. Thethree-month-old boy had a spi

ral fracture to

his right femur. Father reported that he accidentally sat on the child and heard an “audible pop.” L.L.H., Jr. was transferred to Vanderbilt Hospital whe re the treating physician recorded that the fracture was an “unusual fracture type for history of trauma given. Must consider non-accidental trauma.” The hospital also discovered that-2-

L.L.H., Jr. also had a buckle fracture to his right tibia. The attending physician at the

hospital noted that these two injuries were the result of different incidents. The Department of Children’s Services (“DCS”) was notified of the situation.

DCS fil ed a P eti tio n fo r Tem por ary C ust ody o n January 2, 19 98. The Dickson Cou

nty Juvenile Court entered a Protective Custody Order that same day and gave DCS temporary custody of the children. The Juvenile Court conducted a hearing on January 5, 1998 and en tered an order continuing DCS’s temporary custody and allowing pla c em ent into foster care. The children were placed in the custody of their maternal grandmother Fe bruary 25, 1998.

DCS set up a permanency plan for each child outlining the ac tions that Mother andFather needed to take in order to regain custody of their chi ldren. This permanency plan was revised periodically

during the time the children lived wi th th eir grandmother. The DCS caseworker met with Mother andFather to discuss the plans, and to a

rrange visits

with the children.

At first, DCS supervisedthe visits, but even tually, the v

isits between the mother and children were supervised by the grandmother. The father was never allowed to visit with the children without DCS supervision.

Father was unavailable to meet with the DCS caseworker and v isit the children for approximately the

first year because he was in jail for a parole violation and a charge for statutory rape. The caseworker we

nt to the jail to explain

the permanency

plan to the father

. After his relea

se in January of

1999, he visited wit

h the children six times before the October review conducted by DCS. He was very uncooperative with DC S regarding the responsibilities included in the permanency

plan, andhe quit visiting the children in November of 1999. Mother was very diligent about visiting the childr

en and often brou

ght them gifts. Sh

e also workedwith DCS in order to meet the goals included in the permanency plans, so she could reg ain custody of the children. The October 1999 report from the DCS Review Board included the following entry in the sec tion labeled “Recommendations:”“Planof Care was stressed and both parents were urged to work the plan before the next six month

review. We made it clear that the possibility

of termination for

parental right

s could take place.”

On February 29, 2000 , DC S scheduled another meeting to discuss the permanency plan. Despite being notified by letter, neither Mother nor Father attended the meeting. In a letter to the trial court, the DCS caseworker informed the court that Mother continued to live with Father. The letter also stated that the grandmother decided she was unable to keep the children on a permanent basis. When she originally took the children, she believed that Mother would eve ntuall y regain custody of the children, but the grandmother did not think that was possible now, because Mother would not leave Father. The grandmother believed that the children should be adopted.

On April 17, 2000, DCS filed a Petition to Terminate Parental Rights. The court appointed counsel for the mother

and father on July 14, 2000, and set the hearing on the termination petition for July 26, 200

0. The petition pra

yed for the

following relie

f:-3- That at the hearing of this cause, Your H onor decree [sic

] that pursuant to T.C.A. § 3 6-1-11 3(g)(1), the D efendants, J.M.S. a

nd L.L.H. , have willfully abandoned

the children, C. L.H. and L.L.H., Jr., for more than four (4) consecutive months next preceding the filing of this Petition; and, that the Defendants,

J.M.S. and L.L.H., have abandoned the children, C.L.H. and L.L .H., Jr., pursuant to T.C.A . § 36- 1-113(g)(3)(A) et. seq .; and, that the Defendant, L.L.H., has met the conditions set outin T.C.A . § 36-1-113(g)(5) [or T.C.A

. § 36-1 -113(g)(6)]; and further, that pursuant to T.C.A. § 36-1-11 3(g)(2), the D efendant, J.M.S., ha

s failed to comply withthe Statement of Re sponsibilities as pr

ovid ed in the Plan of Care entered into by said Defendant with the Stateof Tennessee, D epartment of Child

ren’s Services. That a Decree be en

tered forever

terminating all o

f the parental r

ig hts which said Defendants

may have to said children and award the complete custody , control and guardianship of said

children to the State of Tennessee, Department of Children’s Services, with the authority to place said

children for adoptionand to consent to such adoption in loco parentis

. Counsel for the ap

pellants filed a motion for a continuance on the day of the hearing. The motion stated that they had been unable to speak with thedoctor who reported L.L.H., Jr.’s injury to DCS. They ar

gued that the Sta

te could not go fo

rward with

its case without testimony from the doctor because the petition was based upon the permanency plan which included the provision that Mother and Father had

to admit to their son’ s abuse. The State ’s counsel stated that the State coul

d proceed without proving again that the abuse actually occurre d, and the tria

l court allowed the appellee to orally

amend its petition at that time. The appellee stated that the grounds of the petition
were (1) substantial non-compliance with foster care and (2) persistence of conditions. The appellants

then argued that the abuse was one of the persistent conditions. The court replied that he had already decided

that the children were abused when they were re moved, so the abuse was not in question.

The trial court ruled from the bench and entered an order terminating the appellants’ par ental rights. The court found that the father had abandoned the c h ildren and that the conditions which caused the children to be removed from the home persisted. Mother continued to live with Father, and Father had done absolutely nothing in order to comple

te the terms

of the permanency plan. The court stated that the mother had made her choice, and it was in the ch il dren’s best interest for the parental rights to be terminated.

II.

Mother’s issues on appeal ar e: (1) w hether the appellant was denied her right to counsel pursuant to Rule 39, Tennessee Rules of Juvenile Procedure, and Rule 13(d)(7) of the Rules of the Supreme Court; and (2) whe

ther the St

a te of Tennessee, Department of Children’s Services, has proven by clear and convincing evidence that the termination of parental rights statute, Tenn. Code Ann. § 36-1-113 and the “best interest” o

f the child

ren require the termination of the mother’s parental rights. Father

’s issues on appea

l are: ( 1) whether the trial court e rred in not granting a-4-

Motion to Continue the Hearing of Termination of Parental Rights when counsel for Father had only been appointed for twelve (12 ) days prior to the said he aring; (2) whe

ther the trial cou

rt erred in granting the Termination of Parental Rights against Father on the grounds of abandonment when the trial court gran ted the State’ s amendment to the petition in open court to proceed solely on the grounds of non-compliance with the plans of care and persistence

of conditions;(3) whether the trial court erred in ord ering Term ination of Parental Rights on abandonment where the State did not provide proper evidence that the consequences of abandonment had been proper

ly administered to Father; and (4) whether clear and convincing evidence existedto warrant the termination of parental rights.

When a parent’s rig hts are terminated, both the grounds for termination and the fact that the action is in the best interest of the child must be established by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c). The “clear and convincing evidence” standard is a higher standard than that of preponderance of the evidence; it “eliminates any se rious or substantial doubt concerning the correctness

of the conclusions to b

e drawn from the

evidence. I

t should produce in the fact finder’s mind a firm belief or

conviction with

regard to the truth of the allegations sought to be established.” O’Daniel v. Messier , 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995)(citations omitted).

III. R IGHT TO C OUNSEL /M OTION TO C ONTINUE
Both Mother and Fathe

r argue that the tri al court erred when it denied their motion for a continuance based on

the fact that their attorneys had been appointed twelve (12) days prior to the hearing. Mother and Father filed affidavits of indigency on July 5, 2000. The attorneys were appointed July 14, 2000 and the hearing was held July 26, 2000. At the hearing, counsel argued that they needed a continu

ance to fully

prepare for tr

ial. On Monday, July 24, counsel had tried to call Dr. James Gay, wh

o treated L.L

.H., Jr. at Vander

bilt and referred

the case to D CS. The att orn eys for Mother and Father wished to take Dr. Gay’s deposition on the issue of L .L.H., Jr.’s abuse. The trial court denied the motion to continue because the State was proceeding on the grounds that the parentsdid not comply with the permanency plan and that the tria l court had already found L.L

.H., Jr. to be abused when the children were remove d from the home. The trial court decided that the previous abuse was not at issue in the case, so the testimony of the doctorwas not nece ssa ry. Mother’s attorney

also argues on appeal that there was not time to identify and subpoena ne cessary witnesses.

The appointment of

counsel for indigent defendants in termination of parental rights cases is based on Rule

39(f)(2) of the Rules of Juvenile Procedure and Rule 13(d)(7) of the Rules of the Supreme Court. Rule

39(f)(2), Tenn . R. Juv. Proc. states:

At the beginning of the

hearing, any party

who appears without an attorney shall be informedof th e right to an attorney, and in the case of an indigent respondent, the court shall consider the facts and circumstances alleged and make a determination as to whether an attorney should be appointed.-5-

Rule 13(d)(7), Te

nn. R. Sup. Ct., states :

(d) In the followi

ng cases and in a

ll other cases required by law, the court shall ad

vise any party who is

without cou nsel that he or she has the right to be represented by counsel throughout the case and that counsel will be appointed to

represent the pa

rty if he or she is indig

ent and requests t

he appointment of c

ounsel.

. . . . (7) In ca ses unde r Title 37 of Tenn. Code Ann. in which allegations against the parents could result in find ing the child

dependent or

neglected, or

in which there is a petition for ter

mination of paren

tal rights.

The issue is whether or not allowing only twelve day s between appointment and the hearing denied to the parties their right to effec

tive assistance o

f counsel. We addr

essed a similar iss

ue in State v. Pruitt , In re A.J.P. , 2000 WL 827 957 (T enn. C t. App . 2000 ). In Pruitt , the mother’s counsel
was appointed two months before the trial on termination of her parental rights. This court stated, “Givin g [Tenn. R. Sup. Ct. 13(d)(7)] its intended effect requires that counsel be appointed long enough before trial for adequate trial preparation. The purpose of appointing counsel is to insure that Mother is adequately represented in judicial proceedings.” Pruitt , 2000 WL 827957, * 8.

The reason given for the continuance was a desire to contest the fact that any abuse had occurred by deposing the doctor

who had initially concluded that L.L.H., Jr. had bee n abused. The trial judge denied the motion because the State had already prove d the fact of abuse in obtaining the original custody order. We think the trial judge was correct. The fa ct tha t L. L.H., Jr. had been abusedwas the sole reason for removing the children from the home. Every plan of care promulgated

by DCS included a requirement for the parents

to take responsibility for the abuse and to seek treatment so that after reunification, the abuse would not occur again. T he pa rents signed the initial plan and received copies of all subsequent plans. Mother signed all the plans except the last one when neither she nor the father attended the staff meeting. F or over two years the fact of abuse had not been contested.

Whether to grant a continuance rests in the discretion of the trial judge. Blake v. Plus Mark, Inc. , 952 S.W.2d 413 (Tenn. 1997). Absent an abuse of discr

etion, the trial co

urt’s decision sho

uld notbe overturned. Id. In general, to show an abuse of discretion in denying a continuance a party must show some prejudice or surprise. Barber & McMurray, Inc. v. Top-Flite Development Corp. Inc. , 720 S.W.2 d 469 (Tenn. Ct. App. 1986). Other than the inability to depose the doctor, the appellant’s have not identified any prejudice from the denial of the continuance. The refore, we do not think the court e

rred in refusing

to grant it.1 Father also assert ed in his brief

that by amendin

g the termin

ation petit

ion in open court t

o rely on persi stence of cond itions, DCS had wai ved the gr ound of abandon

ment. In

view of ou

r conclus

ion that DCS could not r

ely on abandonment as a groun d for ter minati on because of

its f ailure to comply w

ith Tenn. Code Ann. § 37-2- 403, we wil

l not address this

issue.
-6- IV. F ATHER ’ S A BANDONM ENT OF C HILDREN
Father also argues that the State did not prove that the consequ ences of abandonment had been adequately explained to him. Father relies on Tenn. Code Ann. § 37-2 -403(a), subsections (2)(A) and (2)(B)(i)

which require th

at for children p

laced in foster care the perma

nency plan

shall include the definitions of “abandonment” and “abandonment of an infant ” and t he criteria and procedures for termination of parental right

s. Subsection (2)(B )(i) also requir es the court to expla

in to the parents on the record the consequence

s of abandonment.

Subsection (2)(B )(ii) provides that the S tate may, nevertheless, proceed on the ground of a bandonment if it can establish (1) that the parentssigned the permanency plan including the require d information or that the court a t a subsequent

hearing gave the required explanation (Subsection (2)(B)(ii)(a)); or (2) that the agency had presented the required information on abandonment to the parents prior to the termination, or had attempted to, and the paren ts had refused it

(Subsection (2)(B)(ii)(b)); or (3) the agency describe in detail its diligent efforts to give the parents the required information (Subsection (2)(B)(ii)(c)).

We have searched

in vain for the re

quired definiti

ons in any of the permanency plans or where the required information was given to the parents in open court. The permanency plans are otherwise filled with pertine

nt in for mation, and we hav e no doubt that DCS at

tempted to comply withthe s tatute, but the record simply does not show it. Therefore, we have to conclude that the court erred in finding that either or both of the parents had abandoned the children. 1

V. C LEAR AND C ONVINCING E VIDENCE
There are other grounds, however, for terminating parental rights -- if the grounds are shown by clear and convincing evidence. Tenn. Code Ann. § 36-1 -113( c)(1) . In addition to abando nment, termination may be based on substantial noncompliance with the statement of responsibilities in a permanency plan, Tenn. Code Ann. § 36-1-113(g)(2) , and/or the child has been removed from the parent’s home by cour

t order for six months

and: “(i) The co

nditio ns w hich led to the child’s removal or other

conditions which in all reasonable probability would cause the child to be subjected to further abuse or neglect and, which, therefore pr eve nt the child’s safe return to the care of the parent(s) or guardian(s), still persist; (ii) There is little likelihood that th ese conditions will be remedied at an early date so that the chil d can be safely

returned to the pa

rent(s) or gua

rdian(s) in the ne ar future; an d (iii) The continu ation of the pare

nt or guardian a

nd child relations

hip greatly diminishes the child’s chances of early integration into a safe , stable and permanent

home.” Tenn. Code Ann. § 36-1-113(g)(3).-7-

The relevant por

tion of the trial co

urt’s order is:

4. These children w

ere found to

be dependent and neglected by this Court and
were placed in the custody of the Department of Children’s Services; the Department made reasonable efforts to prevent removal or the children’s situa ti on prevented reasonable

efforts from being made prior to removal; the Depart ment has made reasonable

efforts to assist the parents to establish a suitable h o me for the children for a period

of four (4) months following the removal, but Respondents have made
no reasonable efforts to provide a suitable home and have d emonstrated a lack of
concernfor the children to such a degree that it appears un

likely that th

ey will be ab

le to provide a suitable home for the children at an early date. 5. Against both parents, the Court finds that the circumstances that

initially led to the children’s removal in January of 1998 still persist today in that the Respondents

have never acknowledged or dealt with

the severe abuse that the father inflicted on their child. The Court further finds that the children have been removed by order of this Court

for a period of six (6) months; the conditions which led to their removal still persist; other conditions persist

which in all probability would cause the children to be subjected to further abuse and neglect and which, t herefore, prevent the chil dren’ s return to the ca re of Respondents ; there is little like lihood that these conditions will be remedied at an early date so that

these children c

an be returned to Respondents

in t he near future; the continua tion of the legal

parent and child relation ship greatly diminishes the children’s chances of early integration into a stable and permanent home.

6. Respondent, [L.

L.H.], has f

ailed to comply with any of the goals of the permanency

plan. He was not wi lling to address

an y of those re

asonable responsibilities related to remed ying the c onditi ons which necessitated foster care placement.

In reviewing the history of the case, D CS became involved in the case because of severe physical abuse that the younge st child suffered in the home of the Respondents,

and because

of that fact, the children came into state custody. The
mo ther, [J.M.S.], was willing to address many aspects of the plan, but she w as no t willing to address the most important aspects, acknowledging the abuse and separa ting herself from the perpetrator, L.L.H.. L .L.H. never addressed any of hi s issues and at

the time of

this trial, the parties are residing together and do not accept any responsibility

for the severe physical abuse. Therefore, the Court finds that the father has not complied with the plan of care and there is no reaso

n to believe that he would comply in [sic] given additional time.-8- A. P ERSISTI

NG C ONDITIONS AND R EFUSAL TO C OMPLY WITH THE P ERMANENCY P LAN
The record shows that the trial court removed the children from the appellants’ cu s tody because of L.L.H., Jr.’sinjury. The trial court determined that Father inflicted the injury

. For two years, the permanency plan reflected that conclusion and require d both paren ts to ackno wledge the injury and its cause. Neither Father nor Mother admitted that Father caused L .L.H., Jr.’s injury; and there is no reason to

believe that they

will ever admit it. A

ccording to

letters from the caseworker to the trial court,

Fathe r beca me bel liger ent an d ofte n left his vi sitat ions e arly. In addition, Father also l ef t a meeting where the parties were discussing the permanency plan. Neither Father nor Mother attended the last meeting to discuss the permanency plan which occurred shortl

y before D

CS filed the petition t

o terminate pare

ntal rights.

Mother fulfil led most of the requirements of the permanency plan. I n a letter to the trial court, the caseworker stated, “Since the children were placed i n care, [Mot her] has been very cooperative with our Depar tment. The per

manency pla

n directed [Mother

] to complete sever

al tasks, all of which she has worked on diligently.” In his ruling from the bench, the trial judge stated that
even though Mother had fulfilled the majority of responsibilities in the permanency

plan, he could notreturn the children to her, as long as she remained with Father. The trial court was of

the opinion that the conditions which caused the rem oval o f the children would persist so long as Mother remained with the father.
Therefore, there is clear and convincing evidence that the cond itions s till persist. The requirements

of th i s section are met in that the children were removed from the home by a court order for a period of si

x months, the conditions which caused the removalstill exist, there is lit tle likelihood that these conditions will be remedied in the near future, and continuation of the parent relationship will diminish the chance of integration into a permanent home.

The trial court also relied uponTenn. Code Ann. § 36-1-113(g)(2) as a basis for terminating Father’s parental rights. Tenn. Code Ann. § 36-1-113(g)(2) states tha t a , “substantial noncompliance by the parent or guardian with t he stateme

nt of responsibilities in a permanency plan or a plan of care,” can be

the basis for term

ination of parent

al rights.
As stated above, F

ather did nothing to complete his responsibilities under the permanency plan. We do acknowledge that he was in jail for part of the time period when DCS had custody of the children and the grandmother was keeping the child ren. However, there is no evidence in the record that Father made any attempt whatsoever to coope rate with DCS to regain cus

tody of his children. He left his visits with the children early and left meetings to discuss the permanency plan withDCS early. He also failed to attend the final meeting. There is clea r and convincing evidence that Father is in substantial noncompliance with thestatement of responsibilities in the permanency plan.-9-

While Mother remained

in touch with the children and advanced to a point where she enjoyed unsupervised visit

ation with them, she

also failed to comp

ly with the statement of

responsibilities in the permanency

plan by fail

i ng to address Father’s responsibility for the abuse. They still live together, and t

he trial court co

uld not return the c

hildren to her unde

r those circumsta

nces.
B. B EST I NTEREST OF THE C HILDREN
For a trial court to te

rminate parenta

l rights, clear

and convincing e

vidence must

show that the termination is in the best interest of the child. When making that determination, the trial court may look to the factors listed in Tenn. Code Ann. § 36-1-113(i). The factors which support the trial court’s ruling i

n regard to both

Mother and Fathe

r are as follows:
(1) Whet her the parent or guardian has made such an adjustment of circumstance, conduct, or conditions as to make it s afe and in th e child's best interest to be in the home of the parent or guardian;
(2) Whether th e parent or gu a rdian has failed to effect a lasting adjustment after reasonable eff

orts by avai

lable social services agencies for such duration of time that lasting adjustment does not reasonably appear possible;

. . . . (5) The effect a c

hange of care

takers an d physical e

nvironment is likely

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

. . . . (7) Whether the phy

sical environmen

t of the parent' s or guardian's home is healthy and safe, whether there is criminal activit

y in the home, or wheth

er there is such use of alcohol or c

ontroll ed subs tances as may render the parent or gua rdian consistently unable to care for the child in a safe and stable manner; Tenn. Code Ann. § 36-1-113(i)(1), (2), (5) & (7). The factors which apply solely to F ather are:
(3) Whether the parent or guardian has maintained regular visitation or other contact with the child; (4) Whether a meaningful relationship has otherwise been e s tablished between the parent or guardian and the child;

. . . .-10- (6) Whether the parent or guardian, or other person residing withthe 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; Tenn. Code Ann. § 36-1-113(i)(3), (4), & (6).

The weight of

these factors is clearly against the parents. I n addition to Father’s behavior in connection with DCS, Father w as charged wit

h statutory ra

pe shortly after the children were taken. The permanency plan

also referenced domestic violence issues between Mother and Fathe

r, as well as, Father having a potential drug problem. Because Father has shown no evidenceof takin g responsibility

for L.L.H., Jr.’s injury, and Mother rema ins with Father and

enables the cond

itions to persist, the termination of parental rights is in the best interest of the children. Only then will t he children have a chance to become permanently se ttled in a safe and secure home.

We reverse the trial court’s finding of abandonment as a

ground for ter

minating the par

ents’ parental rights. Otherwise the judgment of the lower cou rt is af firmed and the cause is remanded to the Juvenile Court of Dickson County for the enforcement of the judgmen t and any other proceedings that may

become ne

cessary . Tax t he costs on ap peal to the appellants, J.M.S. and L.L.H.

_________________________________________ BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.