### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON On-Brie fs Octobe

r 19, 2001
TENNESSEE DEP

ARTMENT OF C HILDREN'S SERV ICES v. FRANC ES

PYLE BATES
A Direct Appeal from the Probate and Juvenile Court for Lauderdale County No. J4-156 The Honorable Rachel Anthony, Judge

No. W2001-01267-COA-R3-JV - Filed January 10, 2002

This is a terminat ion of par ental rig hts case . Franc is Py le Bate s (here inafter Mrs. Ba tes) appealsfrom the final decree of the Probate a nd Juvenile Court of Lauderd ale County which terminatedher par

ental rig hts to her three minor c hildren, T. M. P., born March 28, 1991; J. R. P., born August 15, 1992; and R. D. P., born July 25, 1994. For the reasons hereinafter sta ted, we affirm the trial court’s final decree. Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Probate and Juvenile Court Affirmed and Remanded

W. F RANK C RAWFORD , P.J., W.S., delivered the opinion of the court, in which A LAN E. H IGHERS , J. and D AVID R. F ARMER , J., joined. William Dan Douglas, Jr., Ripley, For Appellant, Frances Pyle Bates

Paul G. Summers , Attorne y Gener al and Re

porter, Douglas Earl Dimo nd, Assistant Attorney General, For Appellee, State of Tennessee Department of Children's Services
OPINION

On February 26, 1998, after the filing of a petition, the probate and juvenile court entered an order bringing Mrs

. Bates’ three (3) children in protective custody of the c ourt and placing temporary care and custody of the children with the Tennessee Department of Children’s Ser vices (hereina fter“TDCS”) . According to the petition filed on February 26, 1998, two of the children have “many un-exc us ed absences from Ripley Primary School and have been se nt home on numerous occasions for

head lice.” The petition also states that upon t he petitio ner’s vi sit to Mrs. Bates’ residence, “there was no electrici t y, no hea t, and the re were no sheetson any of

the beds. Further, the children’s mother was admitted into St. Joseph Hospital due to her being unstable, and had placed herself and the children at risk by turning the gas stov e on, late r being f ound by fa

mily members.”1 By order e nter ed Janua ry 23, 200 0, Mr. Pyl e’ s p ar ent al ri ght s we re te rmi nated b y de fa ul t j udg ment

. No

app eal w as take n an d he is not in volv ed in this ap pea l.
-2- A guardi an ad lite

m was duly

appointed for the three (3) children, and after a n evidentiary hearing on December 21, 1998, t he court en tered an order on January 11, 1999 sustaining the petition and finding the children to be dependent and neglected

within the meaning of T.C.A. § 37-1- 102 et seq. The court also found that reasonable efforts to prevent remova l of the children have been made, and pla cement of the children in foster care is in the childre n’s best interests. The cour t ordered that custody of the children shall remain with TDCS.

On January 31, 2000, the TDCS filed a “Petition for Termination of Parental Rights”of the biological pa rents of the three (3) children, France s G. Childress Pyle (Mrs. Bates) and James O. Pyle, II 1 (herei nafter

“Mr. Pyle ”). The

petition po ints out tha

t th e children were found to be dependent

and neglected and that the children have bee n in fos tercare continuously since February 26, 1998. The petition also states that it is the petitioner’s intention to place the children for adoption.

The petition alleges that Mrs. Bates has been subs tantially non- complian t with her statemen ts of responsi bilities in t

he plan f or foste r care . The pet

ition also a

lleges tha t Mrs. Bate s and Mr. Pyle have willfully a

bandone d and willf

ully faile d to visit

and/or support their three (3) children. The petition further alleges that thechildren have been removed from Mrs. Bates’ home by order of the court for a period of six (6) months and that the conditions which led to the removal of the children still persist; that there is little likelihood that the conditions will be remediedat an early date so that the children can be safely returned to the parent in the near future; and that the continuation of the parent/ child relationship

greatly diminishesthe child

ren’s chances o f early

integration into a safe, stable and permanent hom

e. The pe

tition alle ges that M

r s. Bates is incompet

ent to adequately provide for the further care and super vision of the children because her

mental co ndition is pr

esently
so impaired

and is so lik

ely to re main so tha

t it is unlike

ly that she

will be ab le to assu

me or re sume the care of and responsibility for her three ( 3) children.

The petition further alleges that the termination of any parental rights of Mrs. Bates a nd Mr. Pyle is in the best interests of the children.
On March 23, 2000, the court appointed Rebecca Mills, Attorney, as the guardian a d litem for the three (3) children. Mrs. Bates’ answe r admits tha

t she is the biological mother of the three (3) children and that they were found to be dependent and neglected on January 11, 1999. H owever, the answ er den ies that Mr s. Bates ha s abando ned her c hildren a nd states that she h as tried t o visit withthe child

ren on nu merous oc casions a

nd all ef forts have been denied without explanation. The answer also denies that Mrs. Bates has been non-compliant withher statements of responsibilities in the foster care plan; denies that she is incompetent to adequately provide and care for he r children because of her me

ntal cond ition; and d

enies tha t the term ination of her par ental rig hts with regard to her three (3) children is in the best interests of her c hildren.-3-

A nonjury tr

ial was he ld on January 29, 2001, and on February 22, 2001, the court entered
a “Final De cree Te

rminating Parenta l Rights of Franc is Pyle Bate s” which providesin pertine

nt part:
FINDINGS OF FACT

1. The children we re re moved from the home of their mother, Frances Pyle Bates, pur suant to a Protective Custod y Order of

this Courton February

26, 1998, based on a Petition alleging the children had many unexcused school absences; there was no electricity or heat in the home andno sheets on the beds. The mother was hospitalized b ecause of her unstable behavior and attempted suicide. She ha d tu rned on the gas stove while the children were in the home. The children also reported sexual abuse by a cous in and the mother’s paramour.
2. At a hearing on December 21, 1998, the Court found the children to be dependent and neglected, whic h finding was confirmed by the Court’s Order of January

11, 1999.

3. Since the children’s removal, the mother has paid no support for the children. She worked at Pizza Hut for one y ear and now makes $200.00 per month cleaning trailer s. Her la st three v isits were April 1, 1999, December, 1998, and Sep tember , 1998. The children’s therapi st and the T ennesse e Baptis tChildren’s Home (which acts as
a case manager

for DCS) felt that the mother’s visits weredisruptive to the chil dren ; they

had reg ressive behavior , agg

ressive outbursts , could n ot s leep at night and experienced recur rent memories of the sexual abuse tha

t o ccurredto th em wh en in th e m ot he r’ s c us to dy. The Department told the mother to contact her attorney when she inquired about visits. She did not petition the Court for visits , nor did she maintai n co ntact with the Department. She did not send the childre n lettersor card s.
4. In 1998, the

mother was diagnosed at Center for Childr

en in Crisi s at LeBonheur Hospital (he reinafter “CCC”) and

at Professional Co unseling Services with major depr ession and borderline persona lit y disorder. Person s with borde rline pe rsonality disorder have inte nse fear of abandon ment, expect people to rescue and protect them and often become enraged, depressed and suicidal. Such a person is very focused on herse lf and he r needs a nd has dif

ficulty focusin g on the needs of other s. The moth er beg an thera

py a t Profess io na l Counseling Service s in early 1998, first attending a depression group and then individual therapy; she wa s not consis tent in her attendance-4- or complian

t with trea

tment, en din g i n September, 1999. Her therap is taddressed anger manag ement, parenting skills, and de veloping mood and li fe stabil ity. For per

iods of time , sh e maintained stability, but would relapse and bec ome unstable again. I n De ce mb er of

19 98 , a t t he me ri ts he ar in g o n t he de pe nd en cy a n d negle ct pe tition, her therapist advised the Court that the mother’s persona lity pattern of mood insta

bility and instability in relationships would p revent her from consistently and safely

parenting her children

. Her diagnosis is long-standing and can only be controlled, not
c hanged. The CCC report of June, 1998, also indicates tha t th e lik elihood of “her being able to provide a sa fe environment

for he r children is guarded to poor.” Attempts of s uicide are a continuing possibility

with this dia

gnosis.

The mother returned to therapy in June, 2000. When herne w therapi st first observed her, she

appeared to be

depressed and showed characteristics of borderline personality disorder; she still had not
m aintainedstable relationships, nor a stable environment and was experiencing conflict with her husband. The mother was hospitalized in July, 2000, because

she was h omicidal a

nd suicida

l. From June t

o the trial date, the mother attended therapy only four times, with five “no shows” and two rescheduled cancellations. I n January 2001, the therapi st met with the mother and her current husband and observed
a great deal of c onflict in

their re lationship , no stability wit hin th e homeand fina

ncial pr oblems. Th

is therapist d oes n ot believe the mother has the ability to pare nt the children.

5. When the children came into the state’s custody in 1998, they were frightened, worried, thin, und e rnourished and full of anxiety. The y also reporte d to their

therapist that they had been sexually abused by their mother’s paramour. Their therapist has worked with them since August, 1998, and reports that they now are “blooming.” She stated that they need strong

nurturing, a stimulating home environment and pe rm an en cy. In he

r opinion, returning the g ir ls to their mother’s homewould be d

evastat ing, would cause

the gir ls to reg ress and not be safe for them.

6. The mother admitted she is not capable of caring for her children at the present time but

said she could overcome her problems and be ready for them in six months t o one yea

r . She depends on her husband’s disability check and $200 pe r month fo r cleaning trailers for inco me and ha s lived in f ive resid ences in the last tw o ye ars.-5- CONCLUSIONS OF LAW

1. There is clear and convincing e vidence to support the termination of the Respondent

mother’s parental rights to the referenced children.

2. The mother

has abandoned

these children within the definition of Tenn. Code Ann. § 36-1-102 (1)(A)(i).

3. The child

ren have been re moved fr om th e mother’s home for nearly three ye ars and t

he condit ions which

led to their re

moval still exist and in a

ll probab ility

will continue

to exist which would ca

use these childre n to be subjected to further abuse or neglect and prevent the children’s safe return to the mother’s hom e; the re is little likelihood these co nditions will be remedied at an early date so the children could be returned to the mother’s home in the near fu tur e; and the continuation of the parent a nd child r

elationsh ip grea tly diminishes the children’s chan c es of early integration into a safe, stable and permanent home.

4. The mother’s mental condition is impaired to the point that she is incompetent

to adequately pr

ovide for the care and supervision of the children and this impairm ent is l ikely to remain so that she will not be able to assume care of and responsibility for the children in the near future.

5. It is in the best interests of the children that the mother’s parental rights be te rm inated. Pursuant to the factors found in Tenn. Code Ann. § 36-1-11 3 (i), she has not m ade an adjustment in her circumstances to make it s afe for the child ren to be in her hom

e; it does not appear

possible for the mother to make a lasting adjustment in her circumstances; the mother has not maintained contact with the children; there is not a meaningful relationship between t h e mother and the children; return to the mother would negatively affe ct th e children’s emotiona

l a nd ps ycholog ical condition; the mother’s mental and emotional status would be detrimental to the children and would prevent her fro m effec tively

providing safe and stable care a nd supervision for the ch ildren; an d the mothe r has fa iled to pa y child support.

IT IS, TH E REFORE, ORDERED, ADJUDGED AND DECREED:-6- 1. That all of the parentalrights of the mother Franc es Pyle Bate s to the children [T. M. P., J. R. P. , and R . D. P.] be and the same are hereby terminated based on the findings of fact and conclusions of law set forth above.

2. That the complete custody , control, and guardi anship of the said children is awarded to the Tennessee Dep ar tment of Children’s Service s, with the right to place the said children for adoption a

nd to consent to such adoption in loco par entis

. 3. That this decree shall have the effect of forever severing all of the rights, responsi

bilities, a nd obliga tions of Fran ces Pyle B ates to the said children and of the said children to said parent arising from the parental relationship; that said parent is hereafter n ot entitled to notice of proceedings of the adoption of the children b y another, nor has Frances Pyle

Bates any

right to object to such ado ption or ot

herwise to participate in such proceedings nor her eafter, at any time, to have any relationship, legal or otherwise, with said children; and that there
are no other p arenta

l or gua rdianshi p rightswhich must

be terminated prior to making said children available for adoption. Mrs. Bates has appealed and prese nts the following issue as stated in her brief:

Whether the trial court erred

in terminating the parental rights of the Appellan t, Franc es Pyle Bates, to the children, [T. M. P., J. R. P., and R. D. P].

The appe lle e, TDCS, has also filed issues for review which we have summar ized into one issue which is, in essence, the same issue raised by the appellant. The

refore, we will not re-state the appellee’s issues.

Since this case was tried by the trial court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the tria

l court. U nless the evidence preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d).

T.C.A. § 36-1-113 (c) (20 01) provi des:
(c) Termination of parental or guardianship rig hts must be based upon: (1) A finding by the court by clear and convincing evidence that the grounds for term

ination or parenta l or gua rdianshi p rights have been established; and-7- (2) That termination of the parent’s or guard ian’s rig hts is in the best interests of the child.

T.C.A. § 36-1-113 (g) pr

ovides: (g) Initiation of termination of parental or guardianship rights may be based up on any

of the fo llowing g

rounds:
(1) Abandonment by the pa re nt or guardian, as defined in § 36-1- 102, has occurred;
(2) There has been substantial noncompliance by the parent or guardian with the statement

of responsibilities in apermanency plan
or a plan of care pursuant to the provisions of title 37, chapter 2, part 4;
(3) (A ) The child has been removed from the home of the pa rent o r guardian by

order of a court for a period of six (6) months and: (i) The conditions which led to the child’s removal or other condition s which in a

ll re asonable

probabil ity would cause the child to be subjected to further abuse
or neg le ct and which, therefore, prevent the c hild’s safe return to

the care of the parent(s) or g uardian(s), still pers ist; (ii) There is little likelihood tha t these c onditions w ill be remedies at an early

dat e so t hat the child can be safely returned to the parent(s) or gua rdian (s) in the near future; and (iii) The co nt inuation of the parent or guardian and child relationship greatly

diminishes the c hild’s chances of early

integration into a safe, stable and permanent home.

* * *
(8)(B) The court may

terminat e the par ental or guard ianshiprights of t hat person if

it determ

ines on the

basis of c lear an d convin cin g evidenc e that:-8- (i) The par

ent or g uardian of the ch ildis incompetent to adequatel y provide for the further care a nd supervision of the child becau s e the parent’s or guardian’s mental condition is presently so impaired and is so likely

to remain so that it is unlikely that the parent or gua rdian will be able

to assume

or resum e the care of

and resp onsibility

for the c hild in the near future, and (ii) That termination of parental or gua rdian rig hts is in the best interest of the child.

T.C.A. § 36-1-113 (i) provides:

(i) In determining whe ther term inati on of parental or guard ianshiprights isin the bes t interes t of the c hild pursu ant to this part, the co urt sh all co nsid er, bu t is n ot li mite d to, the fo llow ing:
( 1) Wheth er the parent or guardian ha s made such an adjustmentof circ umstance , conduc t, or conditions as to make it safe and in the chi ld's bes t interes t to be in t he home of the parent or guardian;
(2) Whether th

e paren t or gua rdian ha s failed t

o effect a lasting ad ju st me nt af

te r r ea so na bl e e ffor ts by avai lable social services agencies for such du ration of time that lasting adjustment does not reasonably

appear possible;
(3) Whether the parent or guardian has maintaine d regular visitation or other contact with the child;
(4) Whether a meaningful r elationship has otherwise been established between the parent or gua rdian and the child;
(5) Th e effect a change of caretakers and phy sical environment

is likely to have on the child's emotional, psychological and medical condition;
(6) Whether the pa

rent or guardian, or other person re siding with the p aren

t or g uard ian, has s hown

bruta lity , phy sica

l, sexu al , emotional or psychological abuse, or neglect towa rd t he child, or another child or adult in the family or household;-9- (7) Whether the physical e nvi ronmen t of the parent's or guardi an's home is he althy and safe , whethe

r there is crimina

l activity in the home, or wh ether there is such use of alcohol or controlled substances as may

render the parent or gua

rdian consiste

ntly unable to care for the child in a safe and stable ma nner; (8) Whether the pa

rent's or guardi an's men tal and/or emotional status would be detrimental to the child or prevent the parent or guardian from effe ctive ly providing saf e and stable care and supervision for the child; or
(9) Whether the parent or guardian has pa id child support consistent with the child suppor

t guideli nes promulgated by the department pursuant to § 36-5-101.

Parental rights may be

terminated only when

continuing the parent-child relationship poses
a substantial threat of harm to the child. See Petrosky v. Ke ene , 898 S.W.2d 726, 728 (Tenn. 1995).

T.C.A. § 36-1-113 (c) re quires th at one or more o f the ass erted sta tutory ground s must

be provedby clear

and convincing e

vidence and the c ourt must de

termine, also by clear

and convincing
ev id ence, that termination is in the child's best interests. See In re: B.B. , No. M1999-00643-COA-R3-CV, 2000 WL 794360 (Tenn. Ct. App. June 20, 2000); Tenn. Code Ann. § 36-1-113(c) (2001). Mrs. Bates ar gues that the trial court erred in findinggrounds supported by clear and convincing evidence to termina

te her pa rental r ights. The tria

l court ba sed its de cision to terminate her parental rights on T.C.A. §§ 36-1-102(1)(A)(i); 36-1-113 (g) (1), (3) and (8)(B); and 36-1-113(i).

In addressing the issues for review, we have reviewed the record and have summarized the testimony of each witness.
LESLIE STUZMAN

Ms. Stuzman testified that she has a master’s degree in counseling psychology

and is licensed
as a psycholog

y examiner. She had b een employed as a the rapist with Professional Counseling Servi ces for five ye ars. She first met Francis Py le Bates in early

1998, when Mrs. Bates was attending a depression group. Ms. Stuzman then began to see Mrs. B ates individually for he r depressive symptoms when her childre n were removed f

rom her custody . Ms. Stuzman met with Mrs. Bates f

rom ear ly 1 998 to Septe

mber 1999 , and she , along with other

members of her st aff, diagnosed

Mrs. Bates’ condition as major depression and borderline personality disorder. She noted that the re was so me im pr ov em en t f or a s ho rt pe ri od of ti me , b ut th at Mr s. Ba te s w ou ld al wa ys relapse and become unstable and depressed ag ain. M s. Stuzma n wrote a letter to the court concerning Mrs. Bates’ c ondition for a December 1998 hearing . The lett er state d that due

to Mrs. Bates’ persona

lity pattern of instab ility

in relati onships, Mrs. Ba

tes would not be abl e to consi stently-10-

and safely pa

rent the children. Ms. Stuzman has not seen Mrs. Bates since 1999, when Mrs. Bates moved to Dy ersburg . Ms. Stuzman testifie d that Mrs. Bates’ persona lity disorder is a “long-standing diagno sis, ” stat ing:

[i]t is a pers onality

pattern that develops from early childhood onward and it takes a lot

of commitment on the part of the client and a lot of consistent therapy to cha

nge, but even then, it’s somet hing tha t is only controlled, not changed. Somebody with borderline per son ality disorder will likely have that throug hout their life.

In explaining

borderl ine pers onality

disorder , she note d:
[it] is a very intense f

ear of abandonm ent, wanting to hold on very tightly to relationships and havin g high expectat ions that p eople in their lives will rescue them and protect them an d then even with a very minor incident will feel abandoned and be tray ed, ofte n become enraged and depressed, suicidal and a person is also very

focused on themse lves and very

focused in on their

own need s and it’s h ard to recog nize the needs of oth ers.
On cross-examination, Ms. Stuzman commented that Mrs. Bates’ suicidal tendenc ies could continue with this borderline personality disord e r. She sta

ted that sh

e tried to treat Mr s Bates’ problems during t

heir indiv idual the rapy and in group therapy . Case management services were a lso provided to he lp tr y to ma in ta in Mr s. Ba te s’ st ab il it y. Because Mrs. Bates was not a lways compliant with her treatment, there apparently was little success with her treatment.
JUANITA C HISM

Ms. Ch ism ha d been employe d with Professional Counseling Services in Dy ersburg and Ri pl ey, Tennessee for eight (8) months. She holds a master’ s degree in social work and a c ertified master’s of social work which allows her to counsel people. She began seeing Mrs. Bate s in June of 2000, when she was contacted by Ms. Tasha Woods, Mrs. Bates’ case m anager. Mrs. Woods wantedMrs. Ba

tes to hav e some the

rapy due to th e situation w ith her children and because her parental rights might be terminated. Ms. Chism observed that whenshe first saw Mrs. Bates she had already been diagnosed

with major depressive disorder and borderline persona lity disorder and

that Mrs. Bates was depressed on the day that Ms. Chism saw her. Ms. Chism testified that Mrs. Bates “basica lly has not maintained a stable

relation ship, her

environm

ent has not been sta

ble also during this time, there has been a lot of conflict with her spouse, several separations during that time. ” Mrs. Bates did not show

up for fi ve sched

uled appo intments. Sh

e has see n Mrs. Ba te s only four

times since June of 2000. In July of 2000, Mrs. B ates stated to her that she was having a cr isis and that her husband h ad threa

tened sui cide if Mr s. Bate s left him. Mr s. Bate s told her that she felt smotheredand that there was a lot of conflict. Mrs. Bates wa s homicidal to her husband and suicidal, but Mrs. Bates denied having past suicidal or homicidal tendenc ies withthe children. She-11-

testified that when she met Mr. Bates, he was very depressed, low functioning, and she noted that he was un able t o read o r writ e. Alt hough Mr. and Mrs. Bates did not relate any domestic violence to her, the boundar y is sues that

Mr. and Mr s. Bates were having we re “intrusive to each other” and domestic violence could be a possibility “if some one else was with them. ” Ms. Chism s aw Mrs. Bates from J une 26 , 2000 throu gh January 4, 2001, and Mrs. B ates never told her she was employed. Ms. Chism noted that Mr. Bates is on disability, but does some handiwork. Mrs. Bates felt like she could provide for her children with her husband if she has access to the

trailer . Both Mr . and Mrs. Bates have financial problems and they moved three (3) times during the time Ms. Chism was seeing Mrs. Bates. Ms. Chism opined that s he does n ot feel th at Mrs. B ates hasthe abili ty to parent her children.

On cros s-exa

m ination, Ms. Chism testified that even if Mrs. Bates was compliant in her t reatmen t, that she s till would n ot be able to get in to a positio n of stabi lity . Sh e could not spea k about the children because she has ha

d no conta

ct with the

m. Ms. Chism opined that she felt that M r s. Bates would harm her children emotionally , not physically . Ms. Chism felt that Mrs. Bates recognized that she could not visit her children because her visits upset the children.
CHARLES JOP

LIN

Mr. Joplin te stified th at he hasbeen emp loy ed with the TDCS for tw o ye ars and h as a master’s degree

in Biblic al studies . He is a case manager, which involves looking after children and visitation with birth parents. The children came into the deparme

nt’s custo dy in 1998, but

problems wit h the Pyle family

date back to 1996. The department’s recor ds indicate a 1997 report tha t a household

member observed one of the children perf orming oral sex on a cousin. Another is that
one of the children complained of not having enough to eat

in the home. This child’s clothing was al wa ys too large, and he observed that she ha d no coat, was alway s filthy, and had head lice . He opined that Mrs. B ates hasnot had a s table home since he began with the department two y ears ago.
On cross-examination, Mr. Joplin testified that no visitation has been allowed to Mrs. Bates
over the last two year s. When Mrs. Bates called about visitation, Mr. Joplin told her to talk with her lawyer about petitioning the court for visitation. He testified that he knew the c hildr en beca me disruptive after seeing their mother, but the TDCS never inter fered with Mrs. Bates’ visitation.
MELINDA WI LBANKS

Ms. Wilbanks testified that she has been em ployed as a soc ial worker with the Tennessee Baptist Children’s Home for the last six yea rs and that she has a bachelor’s deg ree in social work. She is one of the people who ensures that the children are healthy, that

they g o to the doctor, and that they attend sc hool. She is fam

iliar with Mrs. Ba tes’ visits with her children, and her last visit was
on April1, 1999. When the children would come in for a visit with their mother, they would be happy to see her and would “love on her” and ask how she was doing. Thechildren appeared to be concerned

about their mother. At visitation, the children and Mrs. Bates would play games a nd talk about different things. The girls wondered if their m other ha d food an d where

she was li ving or i f-12-

she had a job. Mrs. B ates would bring Easter b askets a

nd they would fly kites and have g ood visits, butthe children were worried about their mother. A n issue concerning “Big

John” came up during
a visitati on, and the children s aid that he was a ma n living with their m

other wh o had sexua

lly abusedthem. The children would go into de tail about the abuse after the visits and would have flashbacks and nightmares about what happened to them. Ms. Wilbanks testified that she to ld Mrs. Bates not to talk a

bout “Bi g John” to t

he childr en, and M

rs. Bates agree d, but the s ubject wo uld
come up ev er y n ow and the n. The ch

ildren we re conc erned a

bout their mother be

ing with “Big John”. According to Ms. Wilbanks, there were no visits by Mrs. Bates betwe en January and

March of 1999. Dur

ing this time, th e childr en calmed down and did not have nightmares and w ere no longer getting sick to their stomachs. She further stated that

their be havior w as much be

tter at th is time. After the April 1, 1999 visit, the child ren reg ressed, and T. M. P. had aggre ssive outbursts. T. M. P. was the protector and would tell the other two children not to talk about what happened before at the home, because nothing happened. Ms. Wilbanks recommended that the visits be ceased because of the children’s behavior after ea ch visit. One of the ch

ildren ha d a nigh tmare ab out “Big John” hitting her, and the child was worried about her mother

. Every tim e there

was a visi

t, everything

was brought up again. The children are “doing fine now;” their behavior is better, and they are going to school and church with foster par ents.
On cross-examination, Ms. Wilbanks testified that the children would not act up during the visits with their mother, but that it was after their mother left when the problems arose . When they would visit with their mother, all of the memories would be brought up again. Ms. Wilbanks noted that Mrs. Bates had not sent any birthday or

Christmas p

resents or letters to the Baptist Home for her children. Ms. Wilbanks stated that the children’s report cards are good. The children

have be en in the same foster home since their removal from Mrs. Ba tes. Ms. Wilb anks also

stated that Mrs. Bates mentioned she would like to know w he re her k ids are li ving an d where

they are in sc hool. Ms. Wilbanks testified that the foster parentstold her that Mrs. Bates and “Big John” had followed the m a couple of times. Ms. Wilbanks further testified that she had just learned that “Big John” had been convictedof sexual abuse, but she was not sure whether he was convicted f or the abuse of

the Py le children or other children because he w as the perpetrator for other kids refe rred to her agency

. SUSAN TENNANT

Ms. Tennant

testified that she had been employ ed with LeBonheur H ospital at the Center for Children and Parents as a family therapist for thirteen (13) y ears. She has a master’s degr ee in social work and is a licensed clinical social worker. She testified that she works exclusively with children who have been sexually, phy sically and emotionally abused and neglected. Ms. Tennant testified that she beg an seein g the Py

le childr en beca use there were

allegations of severe neg lect and abuse. Ms. Tennant had her first visit with the children on August 19, 1998, and she reviewed a n evaluation of the mother, Mrs. Bates, prior to her visit with the children. She approac hed the children wi th knowledge about their mother’s condition of personality disorder, and when she saw the children, they were very

frightened, wo rried, und er-nourished and anxious. The children stated that they stayed hungry most of the time and that sometimes neighbors would bring them food. Ms. Tennant testified that J. R. P. ate constantly and w as worried and would cry about the possibility of not having-13-

breakf ast in the morning. Ms. Tennant further testified that Tiffaney felt responsible for

taking care of her mother. T h e children also complained about bugs and mice and the y made alleg ations of sexual abuse

against “Big John”. After Ms. Tenna nt began working with the children, they “started bloo ming” and were “doing very , v ery much bett

e r.” Ms. Tennant stated that the children need a “strong nurtu ring, stimulating , home env ironment, and perh aps most of all, per manency .” Ms. Tennant opined tha

t sh e did not think that t

he childr en and Mr s. Bate s have a r elationsh ip at this point. After the visitati ons with Mrs Bates ce as ed , s he te st if ie d t ha t t he ch il dr en re ac te d p os it iv el y. Ms. Tennant also opined

that if the

childre n were to go back with

their moth

er, they would re gress to a point where she questions that ther apy would benefit them . Ms. Tenn ant belie ves that th

ese children will need periodic therapy for the rest of their life.
On cross-examination, Ms. Tennant testified that there is nothing Mrs. Bates can do about her personality disorder. Ms. Te nnant testified that any c ontact with the mother would be detrimental even in a supervised situation. She stated that she observed two visits by the mother withher childrenand they we re “ok”, but she testified

that the problem is the children’s subsequent reaction to those visits. Ms. Tennant stated that the children have told her that they fear going

back to their mother, and

the children must “feel safe” before they can be

helped. Ms. Tennant testified that the girls reported to her that “Big John” was with their mother waiting down the street during the visits. It is Ms. Tennant’s opinion that the children cannot be safe living with their mother.
FRANC ES BATES

Mrs. Bates testified that she knows what her disorder is and understands that it really c annot be helped. She understands that she could lose her parental rig hts as the mother

to her children, and she believes that the court should consider family counseling which, as she stated, has not yet been done to unite the

family . Mrs. Ba

tes feels that she

and her c hildren s hould

discuss the feelings and aspects of what

is going on with her illness as well as what is going on with the childre

n and chil d support. She did not send child support because she did not know how much to send and bec ause visitatio n had bee

n cut off and she d

id not know

if the ch ildren wo uld even g et the mo ney. Mrs

. Bates also testi fied tha

t she did no t have muc

h money . Mrs. Bates admitted in her testimony that she cannot take care of her childre n right now, but wants visitation. She understan ds that th e children have suffered because of her illness, and that

she did not realize what was happening with the children after each visitation. She testified that her visitation had been terminated because the children would get upset, but family counseling would

help the children overcome being upset af ter visitation s. Mrs. Bates further testified that “Big John” has not been a part of her life since she was told that he had molested her children. Mr. Eppler (“Big John”) is in prison for nineteen (19) y ears for molesting and raping his own sister’s children. She finds it “ironic that nothing was done on the part of [her] children as far as him beingprosecuted.” Mrs. Bates testified that she is willing to do whatever the court orders with reg ard to her children.

On cross-e

xamination, Mrs. Bates testified that she has problems dealing with her marriag e. She further

stated tha t her husb and is the

only person in the famil y making a living and that he is on di sa bi li ty. She is currently try ing to get on disability. She f urther stated that she d oes not have-14-

problems paying

the rent and

utili ties. She h as a computer and phone, bu

t relies o n public transportation. She testifie d that she was homic idal only

towards “Big John”for wha t he alleg edly didto her daug

hters. Mr s. Bate s testifie d that she could take care of her children in six (6) months to a y ear and

that she w ould continue coun seling with Ms. Chism. She a dmitted the

“no shows ” at her appointments in the past, but attributes them to a lack of transportation. Mrs. Bates testified that Ms. Hogue, who lives a

couple of trailers down the road, is her support pe

rson and h

elps her with her condition. She described Ms. Hogue as like a “mom”. Mrs. Bates stated tha t her husband, Mr. Bates, is dyslexic, blind in one ey e and cannot read or write and that she he lps hi m. Mrs. Bates acknowledged

that she c ould in

time take care of her gir ls and Mr. Bates. Mrs. Bates agrees that her children ne ed pe rm an en cy a nd st ru ct ur e. Mr s. Ba te s t es ti fi ed th at “f am il y c ou nseling” has been attempted as a

method of therapy . Mrs. Bates testified that she cleans trailers in the park where she lives for $6.50 per hour and makes about $200.00 per month, and this is her only source of income. Mrs. Bates h as also wo

rked for Pizza Hut in the last

2 ye ars. She testified that she worked there one (1) year a s a floater and shift leader. She stated that lately things hav e “fallen downhill.” She is happy that her children are blooming under their present situation (foster care). Mrs. Bates testified that she boug ht her ch ildren a snow-g lobe for

Christmas a

nd she ha s Barbie

dolls and o th er st

uff packed away for their birthdays. Mrs. Bates stated that she would have to take the Gre yhound bus to make sure that her children made their thera py appointmen

ts or rely on her neighbor for transportation. Mrs. B ates t estified that she w as suicid al last sum mer, July 2000, and

she feels suicidal when she is threatened. She felt th reatened by

social se rvices a t one point

when the y to ld her that they were

going to take her parental rights away . She testified that she could get suicidal again, but she “don’t think so, not at this point in time.” She testified that her children are more important than she i s, but she b elieves the “fa mily unit” is mor

e importa nt.
After a review of theentire record, we find that all of the grounds for the trial court’s decision terminating Mrs. Bates’ parental rig hts are supported

by clear and convincing evidence. Contrary to Mrs. Ba

tes’ arg ument tha t the TDCS did not use reasonable efforts to aid and assist her in attempt s to be reuni fied with

her chil dren, the

re is test imony in the re cord in dicating that Mrs. Bates was allowed t o visit her childre n until Apr

il 1, 1999, when it wasrecomme nded by Ms. Wilbanks that Mrs. Bates’ visitation should be ceased because of the negative effects it had on the childre n. Sp ec if ic al ly, the record ind icates by clear and conv incing eviden ce that Mrs. Ba tes h as abandoned

her children within the meaning of Tenn. Code Ann. § 36-1-102(1)(A)(i), because she intentiona

lly failed to pay child support. See In re Swanson , 2 S.W.3d 180 , 188 (Te nn. 1999) . Mrs. Bates testified that she paid no child support to her children and further testified that although she does not have much money , she earns approximately $200.00 pe r month cleaning trailers.

The record further indicates by clear and convincing evidence that the conditions which led to the child

ren’s r emoval f rom Mrs. B ates’ c are still

persist a nd that the

re is little likelihood that the condition s will be remedied at an early date; that Mrs. Bates is incompetent to adequately provide for her children because of her menta l condition; that there has beenno lasting adjustment made by Mrs. Bates to

care f or her children; t

hat ther e has been no meaningful relationship established-15-

between Mrs. Bates and her c hildren a nd that it isin the chi ldren’s best inter ests to terminat

e Mrs. Bates’ parental rights to her c hildren.

The record shows that

the child ren have been livi ng with th

e same f oster pa rents since the

ir removal from Mrs. Bates’ care in Februa ry of 1998 and are doing well. Mrs. Bates testified a t the trial held on January

29, 2001, t

hat she c annot tak

e care of her children a

t this time and she stated that it would take approximately six months to one year before she could take

care of her children. Ms. Tennant

testified that the children need “a strong nurturing , stimulating, home environment, and perhaps most

of all, per manency ” and Ms. S tuzman test

ified tha t Mrs. Ba tes’ bor derline persona lity disorder is a condition that people “likely have . . . throughout their life.” Ms. Stuzman also testified that Mrs. Bates’ suicidal tendencies could con tinue with this borderline personality disorder and that Mrs. Bates would not be able to consistently and safely pa

rent her children. The record reveals that although Mrs. Bates’ condition may be treated with “consistent therapy” , Mrs. Bates often did not show up for scheduled appointments. There is also testimony in the record

from Ms. Tennant that the children and Mrs. Bates do not have a relationship at this point and Ms. Tennant stated that if the children were to go back

withtheir moth

er, “the y w ould be de

vastate d, [and]. . . t

hey would re gress so much that [she]. . . questions if any thera py would be bene

ficial for them.” Other testimony from the record indicates that Mrs. Bates would not be able to get into a position of

stability and that M

rs. Bates could emotionally

harm her children. Accordingly , the final decree of the trial court is affirmed. This case is remanded for such further proceedings as may

be necessary . Costs of the appeal are assessed against the appellant and her surety.

__________________________________________ W. FRANK CRAWFORD, PR ESIDING JUDGE, W .S

.