### IN THE COURT OF APPEALS OF TENNESSEE AT KNOX VILLE O ct obe r 25, 200 7 S es sio n ST A TE OF TE N N ES SE E, D EP A R TM EN T O F C HI LD R EN ’S S ER V IC ES , v. C . W. an d J. C . W. , IN TH E M A TT ER OF : C . W. ( D OB 04/ 21/ 99) an d J. W. (D OB 02/22/0 2), C hildren Less th an Eightee n Y ears of A ge Direc t Appeal from the Chancer y Court for Cam pbell Cou nty Nos. 06-105 & 06- 106 Hon. B illy Joe White, Chancellor

No. E2007-00561-COA- R3-P T - F ILED NOVEMBER 29, 2007

Th e Tr ia l Co ur

t te rm inate d th e pa

re nta l r ig hts of

the pa re nts of the tw o mino r ch ild re n. On a pp e a l, we a ff ir m.

Te nn. R . A pp. P .3 App e al a s o f Rig ht ; J udgm e ntof t he Cha nc e r y C our t A ffirm e d.

H ER SCH EL P I CKE N S F RAN KS , P.J ., delivere d the opinion of the cour t, in which C H A RLES D. S US ANO , J R ., J ., and S HAR ON G. L EE , J ., joined. Th oma s J. T a

bo r, Jr., Ta zew e ll, Te nn e sse e , f or a pp e lla nts

. Robert E. Cooper, Jr., Attorney Gene ral a

nd Reporter , and L aure n S. L amber

th, Assistant Attorney

Gene ral, Na shville, Tennessee , for a ppellee.

OP IN ION

On Au g us t 11 , 2 00 6, the pe tit ion er fi le d Pe tit ion s to Te rm inate Pare nta l Rights ag ainst C.W . and J.C

. W

. , reg ardingtheir minor childre n, C.W ., d.o.b. 4/21/99, and J .W., d.o.b. 2/22/02. The Petitions allege d the childre n had bee n in custody since J anuar y 24, 2005, and that the pa re nts ha d a

ba nd on e d th e c hil dr e n, ha d f a ile d to pr ov ide a

su ita ble ho me , ha d f

a ile d to su bs tanti a lly comply with their perma

nency plan, and that the c onditions l eading to r emoval still exis ted. Fur ther, that it was in the children’s best interests t o terminate the pare ntal rig hts of both pare nts, so that the children c ould be adopted.-2- Counsel for the pa

rents wa s ap p o i n t ed, along with a guardia n ad litem for the children. Th e pa

re nts fi le d an An sw e r to the Pe tit ion , de nying that gr ound s existe d to te rm inate their par ental rig hts, and denying that termination was in the childre n’s best intere sts.

The Tr ial Court conducted a trial and numer o us witnesses testified, including witnesses fr om t h e Department of Children’s Ser vices, the r espondents, and me mbers of the r e s p o n d e n t s ’ e x t e n d e d

f am i l y. Followingthe evidentiar

y hear ing, the Trial Court entered a n Orde r terminatingthe pare nts’ pare ntal rig hts, finding by clea r and c onv i n ci n g evidenc e that g rounds for te rmination exi s t edp u rs u an tt o T en n . C o d e A n n . § 3 6 -1 -1 1 3 (g) (1 ) a n d § 3 6 -1 -1 0 2 (1 )( A) (i i ). T h e C o urt found that desp i t e re asonable eff

orts by the Depa

rtment of Children’s Ser vices, the pa

rents had ma de no rea sonable e ffor

t to provide a suitable home f or the children, and had demonstrated a lac k of conc ern for the c hildren t o s u ch a de g ree that it appear ed unlikely that they would be able to provide a su ita ble ho me in t

he futur e . T he Court

fo un d th a t th e mot

he r h a d b e e n gon e for peri ods o f t ime when she would live with boy friends a nd not see the c hildren, that the pa rents had r ece ntly

said they would divorce , but now said they intended t o s t ay

toge ther. The Court said that it would be detrimental for the children to “ enter the pare nts’ lifestyle which is e x tremely unstable as e vidence d by the incident of D ece mber 17, 2006, whe n the mother kicke d in the door of the par ents’ home a nd was a rre sted.” The Court found that the mother wa s curr ently in jail after be ing a

rre sted following that in c ide nt, and

tha t th e pa re nts ha d ma de ve ry

fe w c ha ng e s si nce th e childr e n h a d c ome int o custody

. The Court found the c hildren had be en re moved for more than six m onths, that the conditions which led t o t heir re moval still persisted, a nd that the conditions were such that the childr e nw o u ld

li k e ly b e s u b je c t t o f u rth e r a b u s e /n e g le c t i nth e f

u tu r e if th e y w e r e r e tu

r n e d to the pa re nts

. Th e Court fo un d that the re wa s a lon g his tor y of dr ug us e wh ic h ha d n ot b e e n s uf fi c ie ntl y addre ssed, and that the pa rents’ situations wer e the same as at the time of remova l or worse , since the mother wa s incarc erated.

Th e Cour t f

ound the te sti mony

of the g ra ndmot he r, Ms. Mil le r, “ e sp e c ia lly compelling reg ardingthe drug use of the pare nts a nd domestic violence in their home”, a s well as the testimony reg arding the chang e in the children since they had been in f oster car e, and that they wer e now “ clea

n, happy , and dis ciplined”. Fur ther, the Court found the testimony of the mother’ s ha lf -b ro the r, Mr . Mille r, to be c omp e lli ngre g ard ingthe tr e me nd ou s n e g le c t of the c hil dr e n p ri or

to their re moval, and the positive cha ng es since the y

had bee n out of their par ents’ ca re. Finally , the Court found that t he parents had failed to substantially comply with the plan of car e, had not taken the remova l seriously , and had not evidenc ed the e ffor t neede d to rea

r the children. The Court found that termination was a lso in the children’s be st in t er es ts, and that the-3-

children w ere happy

in their foster pla ceme nt and much better off ther e. Re sp on de nts have a

pp e a le d, ra isi ngthe se iss ue s: 1. Whether there was c lear an d co n vincing evidenc e provingg rounds for termination? 2. Whether there was c lear and convincing evidence that termination was in the c hil dr e n’ s b e st i nte re sts ? 3. Whether the Tr ial Court erred i n n o t consideringthe g uardia n ad litem’s re mark s that he c ou ld no t sa y that te rm inatio n wa s in the c hildren ’s b e st int e re sts ? 4. Whether t h e Trial Court violated the doc trine of pr ior suit pending by a llo wi ngthe Pe tit ion

to g o f or wa rd in C ha nc e ry c ourt wh ile the re sp on de nts we re e ng a g e d in ot

he r p ro c e e din g s r e g ard ingthe c hil dr e n in Juve nil e c ourt ? The Tr ial Court found there was c lear and convinc ing e vidence that gro u nds for termination exist ed, based on Tenn. Code Ann. §36-1-113, and that g rounds exist ed due to f ailure to provide a suitable home, failure t o comply with the perma

nency plans, and that the c hildren had been r emoved f

rom the home for

a per iod of more than six months and the conditions that led to the remova l stil l persisted. Also that there was li ttle likelihood that these conditions would be re medied at an e arly

date, a nd that continuation of the pare n t an d child relationship gre atly diminis hed the children' s chanc es of e arly integ ration into a saf

e, stable home

. SeeTenn. Code Ann. §36- 1-113. As this Court has recognized: Te rm inatio n o f a

pe rs on ' s r ig hts a s a pa

re nt is a g ra

ve and fi na l de c isi on , ir

re vo c a bly alteri n g t h e lives of the pa rent a nd child involved and " sever ing f oreve r all leg al ri g hts and ob lig a tio ns " of the pa

re nt. Te nn . Co de Ann. § 3 6- 1- 11 3( l ) (1 ). B e c a us e o f i t s c o n s e qu e n c e s , w h i c ha f f e c tf un d am e n t a l c o n s t i tu t i o n a l r i g h t s , c o urt s ap p l y a highe r standar d of proof when a djudicating termination ca s es . See O'Daniel v. Messier , 905 S.W .2d 182, 186 (Tenn. Ct. App.1995). T o justify the termination of pa re nta l r ig hts , th e g ro un ds fo r t e rm inatio n, and the fa c t tha t ter

min a tio n is in the be st interests of the c hild, must be esta bli shed by

clea r and c onvincing evidenc e. See Ten n. Co de A nn . § 36 -1 -1 13 (c ) ( Sup p. 20 00 ); State Dep't of Human Servs. v

. Defriec e , 937 S.W .2d 9 5 4 , 960 (Tenn. Ct. App.1996). " This heig htened standa rd serve s to prevent the unw arr anted ter mination or interfe renc e wi t h the biologic al pare nt s' ri ghts to th eir

chi ld ren. " In re M

.W .A. , 980 S.W .2d 620, 622 (Tenn. Ct. App. 1998). The " clea r and c onvincing evidenc e" standard de fies pre cise de finition.-4- Whil e it is more exacting than the pre pondera nce of the evidenc e s t an d ar d , it does not require s u ch ce rtainty as the be y ond a re asonable doubt standard. Clea r and convincingevidenc e elimi n at es any serious or substantial doubt conc erningthe c or re c tne ss o f t

he c on c lus ion s to be dr awn fr om t he e vid e nc e . I t sh ou ld p ro du c e in the fa ct-finde r' s mind a firm belief or conviction with reg ard to the tru t h of the alleg ations sought to be e stablished. O'Daniel , 905 S.W .2d at 188 (c itations omi tted). Means v . Ashby , 130 S.W .3d 48, 54-55 (Te nn. Ct. App. 2003).

I n t h i s case , clea

r and c onvincing evidenc e wa s offe red, pr oving a ll of the above g rounds. Most compelling w as the proof that the conditi ons leadingto the children’ s removal two y ear s befor e trial still persisted. The children were re moved due to the domestic violenc e betwe en the pa re nts

. Th e re is e vid e nc e that the pa re nts we re a

bu sin g dr ug s, and fa ile d to pr op e rl y

su pe rv ise the children. The mother was incar cer ated at the time of trial on domestic violence charges and violation of probation. The pa rents’ le ng thy

criminal re cords we re f

iled with th e Court which showed other

criminal cha

rg es since the remova l of the childre n. There was ev i d en ce that the par ties still abused dr

ug s, and the father a dmitted that he had taken more of his presc ription me dication than pre scribed, a nd he admitted that he ha d abused over- the-c ounter spee d afte r the c hildren’s re moval, and had failed dr ug tests. The mother ha d been arr ested in Nove mber 2005 a nd char g ed with possession of narc otics, and admitted to failinga fe w drugscre ens, including the most rece nt in October 2006 w ith her par ole offic er.

Th e pr oo f w a s r e ple te wi th e xamp les of ho w the pa re nts ha d ma de ba d c ho ic e s in the ir liv e s a ft e r t

he c hil dr e n w e re re mo ved , w hic h d e mon str a te s th a t th e c on dit ion s le a din g to remova l stil l persisted, or we re unlikely to be re medied any

time soon. Th e re wa s c le ar a

nd con vi ncingpr oo f t

hat th e pa

re nts ha d f

a ile d to su

bs tanti a lly comply with the perma

nency plans, that they

had fa iled to provide a suitable home , con stitut ing abandonme nt under Te nn. Code Ann. §36-1- 102 and Te nn. Code Ann. §36-1- 102(1)( A)(ii). As the pe tit ion e r po int s out, a su ita ble ho me re qu ir e s mo re tha n a pr op e r p hy sic a l li vin g loc a tio n, and the se pare nts have not provided a suitable home for these children due to the drugand domestic violenc e issues that have pla g ued them for y ear s, and continue to do so, as de monstrated at trial. We aff irm the Trial Court’s J udg ment in f inding that clea

r and convincing evidenc e exis ted as to a ll the grounds re lie d u po n in te rm inatin g the pa

re nts ’ p are nta l r ig hts

. Th e Tr ia l Co ur

t f ound by c le ar a nd c on vin c inge vid e nc e tha t te rm inatio n o f t

he se pare nts’ rig hts was also in the childre n’s best intere sts. In making such a de termination, the Court is require d to consider the f actor s set forth in Tenn. Code Ann. §36-1-113( I ). I n this case, the evi d en ce established that the pa rents had not made such an-5-

adjustment of circ umstances to make it sa fe and in the childre n’s best intere sts to be in their home, a nd ha d f a i l e d t o e f f e c ta l a s t i n g a d

j u s t m e n ta f

t e r r e a s o n a b l e e f f o rt s b y av a i l a b l e s o c i a l s e r

v i c e s, such that a la sting a djustment did not seem re asonably possible. The mother a

nd fathe r argued that the Trial Court did not make specific finding s of the best intere sts analy sis, but the Court’s Memorandum Opinion an d a subsequent Order show otherwise

. The Tr ial Court made spec ific finding s and found that c lear and convinc ing e vidence exis ted to demonstrate that the best interests of the children w ould be serve d by ter m i nating the pa re nts ’ r ig hts

. Next, the parents ar g ue that the Trial C ourt err ed in failing to consider the guardia n ad litem’s rec ommendation in this case. A r eview of his statement shows that he esse ntially made no rec ommendation, admitting that in the past he had bese eche d the Depa rtment to file a ter

mination petition, and then admitted that he had seen some prog ress from the parents. Howeve r, he de scribed the de cis io n a s a

“ ha rd c a ll” and state d th e Court

wo uld have to d e c ide the iss ue s. Th is i ssu e is wi tho ut m e ri t. Finally , the par ents argue that the Court should not have he ard the termination action, beca use depe ndency

/neg lect p roceeding s were alre ady pendingin J uvenile cour t. We have previously

held that eve n if depe ndency and ne gl ec t proce eding s were filed in J uvenile cour t, the Chance ry courts have concur

re n t jurisdiction on procee dings to ter minate par ental rig hts, and there fore subject matter jurisdiction to hear the termination case . T enn . DHS v . Ta te , 1 9 9 5 WL 13 88 58 (T e nn . Ct. Ap p. Mar. 31 , 1 99 5) ; In re : H NK , 2006 WL 1641359 (Tenn. Ct. App. J une 13, 20 06 ). Th is i ssu e is a lso wi tho ut m e ri t.

For the fore g o in g

r e a s o n s , w e a f

f ir m the J udg ment of the Chanc ery Court and re mand, wi th t he c os t of the c a us e a sse sse d th e pa

re nts

.

______________________________

H ER SCH EL P I CKE N S F RAN KS , P

. J.