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

Briefs A pril 1, 200 3

In The Ma tter Of: T.B. S. and A. K.S. STATE O F TENNESSEE D EPART MENT O F CHILD REN’S SERVIC ES v.

NANCY KATHERINE JOHNSON SHORTT , ET AL 

### . Appeal from the Juvenile Court for Jackson County No. 4075A-3-123 and 4075B-3-123 Jimmy White, Judge

No. M2002-02920-COA-R3-JV - Filed June 10, 2003

This cas e conce

rns t he question of what constitutes reasonable efforts to reunify dependent and neglected children with the birth parents prior to the termination of parental rights. The trial court held that reasonable efforts were

made. Th

is Court af

firms the terminat ion as to both paren

ts’ righ ts.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed

W IL LI AM B. C AIN , J., delivered the opinion of the court, in whichB EN H. C ANT RELL , P.J., M.S., and P ATRIC IA J. C OTT RELL , J., joined.

Michael Savage , Livingston, Tenness ee, for the appe llant, Na ncy Katherine Johnson Shortt.

Paul G. Sum mers, Attorney Ge neral & Reporter, and Elizabeth C. Driver, Assistant Attorney Genera l, for the appelle e, Tenne ssee De

partmen t of Childr

en’s Ser vices.

OPINION

The Tenn essee Department of Children’s Services commenc ed this action by filing a Petition for Temporary

Custody on

May 17, 2000. I

n that Petition, the State averred the following as g rounds for tempo rary custody :

I It is upon Petitioner’s information and belief that the above-named children

are dependent

and neglected children within the meaning of the law in that [T.S.] and [A.S.] have previously been in Foster C are due to chroni c neglect caused by their mother’s mental limitations and inability to parent and their fathe r’s alcoholism. The children were returned to the custody of the parents on 7-19-1999 with restrictions that the child ren shoul d not be left alone with Nancy Sho

rtt and the father

not to consume any a

lcoholic beverage.1 Although thes e pla ns we re s ubsequ entl y amen ded, these barriers and action plan were i n the subsequent plans

as well.

-2-

On 5-15-2000, a report was received by DCS that Mr. Marvin S hortt was highly intoxicate d. Patric ia Gree n, Case Ma

nager , DCS and Jackson County Chief De pu ty, David Pig g went t o the house

a nd observed Mr. Shortt in an intoxicated condition. Nancy Shortt and the c hildren were at the home of her mother, Mary Johnson Bole s, who t he department does not consider to be a proper c ustodian of children due to her

allo win g Nancy

Shortt to be sexually abused. Nancy ’s mental limitations prevent

her from properly

[caring] for

the child ren. Mar vin Shortt h as a history of drunken binges which

prevent ed him fro m proper

ly caring for the children

. . . .
This peti tion was accompanied by an affidavit as required by Tennessee Code Annotated section 37-1-166 (c). I

n that af fidavit th e St ate alle ges tha

t these children w ere pre

viously in state custody an d w er e r et ur ne d t o t he pa re nt s o n J ul y 1 9, 1999. Counsel and guardian ad litem were appointed and a Protective Custody O rder entered on May

17, 2000.

The Department draf

t ed, and Mrs. Shortt signed parenting plans for T.B .S. and A.K.S. on June 15, 2000. O n page

4 of T.B. S.’s pare

ntin g plan, the barr

ier to pe rmanency islisted as “

Mrs. Sh ortt has a psy chiatric disorder and deve lopmenta l disability

that seri ously

impairs th

e ability to meet the children’s needs. The childre n have long histor

y w ith DCS. The children were removed during another incident when [A.K.S.]’s formula tested positive with 0/ 2 5 V/V%.” Also listed under the re quired cha nge por

tion of the

action pl an for pe

rmanency isthe following con dition. “M rs. Shortt’s condition

must be stabili zed and she

must consis tently

demonstr atespecific skills that show her ability to pare

nt her child-children(12-01-00).” This plan was approved by the juvenile court

on July 24, 2000. A.K.S.’s plan was approved on the same day and contains the same barrier and suggested plan of action. In addition, on pag e nine of A.K.S.’s pa renting plan t he state lists the following as barr

ier to permanency : “The marital relationship of Mr. Shortt and Mrs. Shortt poses

a risk to the children as evidenced by r eports of Marvin emotionally abusing Na

ncy throug

h verbal comments and by

the fac t that he w as picke d up on 08- 24-96 due to being intoxicated and

he was afraid h e would harmNancy a nd [T.B.S.].” Pursuant to the parenting plans executed by the department

and the parents, Mrs. Shortt was to receive psy chological evaluation. 1 The final hearing

on the petition was postponedseveral times for the purpose of obtaining a psy chological evaluation of the mother and so that the father could attend Alcoholic’s Anony mous meetings and alcohol and drug treatment. The adjudication and disposition hearing of this petition for tem porary c

ustody occurred on Novembe

r 7, 2001. In itsorder f

iled July 22, 2002 the trial court found that the children were de pendent a nd negl ected w ithin the me aning o f the stat utes:
Upo n the evidence presented, arg ument of counsel, and the entire recor d
, from all of which the Court finds that the above-named children are depe ndent and neglected withinthe mean ing of th e law; and victims of

severe child abu se perpetrated

by M arvin Shor

tt; that Na ncy Shortt’s mental incapa city render s her2 M arvin S hortt is not be fore the Co urt on a ppe al of the te rmina tion or der. T he M other Na ncy K atherin e Sho rtt

is the on ly party ap pellan t.

-3- unable to paren t and car e for the childre n; and due

to Marvin

Shortt’s a

lcoholism, failure to properly control a nd parent the children, physica l violence and sexual

abuse

or exploitation of the children; that there i s no less drastic alternative to removal and/or to make it possible for the childrento return home in that the D.C.S. entered into a safety

plan while the children were in the pa rents’ h ome; but the parents ’ violation of that safety pla n nece ssitated t he children being returned to foster c are; continu ati on of the ch

ildren in t he pare nt or leg al guar

dian’s custody

is contra ry to the best int eres t of the children; and that it is in the best of said children and the public . . . that the State of Tennessee, Depart ment of Chi ldren’sService s, retain temporary

legal custody

of said minor ch ildren along with the authority to consent to necessary

medical, surgic al, hospit

al, institu tional ca re, or e ducation al enrollment, pending further order of this Court.

Consistent with prior orders of the Court, Dr. William R. Sewell preformed an evaluation of the Appellant mother, Nancy K atherine Shortt, on June 8, 2001. In that evaluation the doctor made the following rec ommendat ions:

It is recommended that if the Department of Children’ s Service s decide s to return the children to this home that there be a functiona l adult as a care manager for the children. Ms. Shortt’s level of intelligence, her tende ncy toward

erratic emotional expressio ns, her weakness in demon str ating sa tisfacto ry disciplina

ry measure s in parent- child

settings, her unwillingness to engag e in treatme nt, and her dependent persona lity characteristics indicate that counseling be rec ommende d in this case. However, it should be

noted tha

t the succ ess of counseling would be e

xtremely limited due to the low intellectual level, lack of trust of others a nd unwillingness to engag e in trea

tment act ivities.

On April 30, 2 002, the D epartme nt filed a Petition fo

r Termi nation of Parenta l Rights alleging as g

rounds fo r the ter mination th

e paren tal righ ts of Marvin Shortt, w illful fa ilure to vi sit

or to contribute to the support of the children. 2 The Department alleged that Nancy K

atherine Shortt, along w ith Marvin

Shortt, ma

de no rea sonable e

fforts to provide a suitable home. In addition, the Departm ent alleged the fo llowing f acts:

The Defendant

(mo ther), N ancy

Katherine Shortt, has not sub stantiall y complied with the provisions of the permane ncy plan, whi ch is atta

ched as E xhibit A. Specific ally , she has not succe ssfully complete d parent

ing cla sses, she

has n ot stabilized her

condition

or demons trated her abilit y to properly pa

rent her children, she continues to have relationships with me n and A&D issues and she has not participated in a domestic violence course.-4- Nancy Katherine Shortt was advised on June 15, 2000 and May 21, 2001 that failure to comply with permanency plan was g rounds for termination of parental rights. The Defendant

(fathe r), Mar vin Ll oyd Shortt, ha s not substa

ntially complied withthe provi sions of the perma nency pla n, which is attached as Exhibit A. Specifi ca ll y, he has no t succes sfully complete d A&D tr

eatment, he contin

ues to

consume alcoholic beverages, he re fuses to go for a psy

chosexual evaluation, he has notsuccessfully c ompleted parenting classes, he has not completed coun seli ng for domestic violence and he has not visited the children as required. Marvin Lloyd Shortt was advised on June 15, 20 00 and M ay 21, 2001 that failure to comply with the permanency plan was g rounds for termination of parental rights.

This Petition was heard on July 22, 2002. Although counsel for the mother was present, the mother absented herself from the proceeding s. As a result the co urt heard testimony fr om the mother’s case worker Angelia B ullock and Nancy

Kington, the children’s foster mother. In addition, the court cons idered the d eposition of Dr. Sewell and Dr. Sanger. Of pa rticular interest is the testimonyof Ange

lia Bullo ck. Upon d

irect exa mination by

Ann Austin

counsel for

the Depa rtment, Ms. Bullock gave the following tes ti mo ny concerning the efforts taken by the Department and by Ms. Shortt concerning establishing home for the children:

Q. During the four months f ollowing removal on May 17th, 2000, did the Department

of Children’s Services make every reasonable effort to provide services to Marvin Lloyd Shortt and Nancy

Kathe rine S hortt to ass ist t hem in estab lish ing a home suitable for these children? A. Yes. Q. And did th ey , were th ey able to ma

ke or did t

hey make re asonable efforts themselves to establish a suitable home for these children? A. No. Q. And does it

appear likely that they will be ab le to establish

a suitable home for their children in the near future? A. No. Q. Nancy

Katherine Shortt, is it true th at she ha s not substa ntially complied with the provisions of her permanency plan? A. Yes. Q. She’s not successfully c ompleted parenting classes, has she? A. No. Q. And she’s not

stabilized

her cond ition or de

monstrated an ability to properl y pa rent the childre n, is that c orrect ? A. Yes, tha

t’s corr ect. Q. Does she continue to have relation ships with men with alcohol and drug issues and who are also violent towards her? A. Yes.-5- Q. Tell us the las t inciden t she has t

old y ou, Nanc y Sh ortt, rega rding a paramour, a

liv e-in paramour that had alcohol or drug issues a nd violence towards her. A. Yes. She’s [sic] c urrently has a par amour tha t lives with

her. I don’t know if y ou want me

to say his name o

r not. Q. Go ahead. A. Jerry

Byrd Smith is his name. And I sort of had my suspici ons th at he may drink and

stuff whe

n I’d do visits. B ecause

he would s hake unc ontrollab ly and all of that stuff. Well, she admitted to me - - it was in Ma y, t he month of Ma y. Q. May of 2002? A. Yes, of this year. Tha the does physica

lly abuse her. And even

worse when he drinks liquor, she said.

. . . . Q. And the Court at the last hearing made a finding that he did; they were victims of

severe child abu se based

on this sexua

l abuse, i s that cor

rect? A. Yes. Q. Based

on your observa

tions of Katherine, Nancy Katherine Shortt, is she mentally competent to provide for the care of these children? A. No. Q. Whathave you see n that concerns you about her c ompetency to care for these children? A. Appointme

nts that I ’ve made

for her , I wo

uldbe concerned. Becau se she won’t get on the bus, or she forge ts. [T.] and [A.] both have to see a p syc hiatrist

once a month. And I would be so scared that she wouldn’t get them to t heir appoint ments every month, as w ell as school. Her friend, Melissa, pay s all of h e r bills for her. Her neighbor fr iend, Melissa. And gives her the chang e left over. Becau se Ms. Shor

tt told me sh

e can’t count. Q. Let

me interrupt you. I s this friend Melissa an individual who provides her transportation to court and other places she needs to go? A. Ye s. Sh e t ak es he r ya rd -s al in g, to o, ev er y Sa tu rd ay. Q. Go ahead. A. That

would be my conce

rn, that she wouldn’t be able to get them to these ap pointmen ts. My other concern, of course, is living wit h Mr. Jerry By r d Smith. He’ s still on he

r lease at the sub sidized hou sing she lives at. Q. Let

me interrupt

a minute there. Have there been othe

r men tha t Ms. Shortt had live with her or

stay in her home for

periods of

time that have also caused you conce

rn before Mr. Smith came into the picture? A. Oh, yes. There

was another male figure. I ’ll hav e to loo k at the pap erw ork. It was sometime last y ear that when I did a

home visit, he was on the floor on a mat tre ss . An d wh en I k nocked on the d oor, Nancy opened it. And he jerkedthe covers over him, and there was beer bottles laying ar

ound every

where. His

name was Bill S pivey . He is deceased now. Then there was another man that I we nt in on a home visit. And there was beer bottles lay ing every where, the q uart -sized-6-

beer bottles. And w hen I asked his name, she told me she didn’ t know his name. She couldn’t remember. Q. Did she identify what his re lationship was with her, this man? A. Yeah. Th at he wa s her new boy friend. Yes. Q. In your opinion, is there any likelihood that these conditions wou l d be remedied at an early

date so the children can be returned to either parent in the

ne ar fu tur e? A. No.

The pertinent

findings of fact as memorialized in the decree sig ned the 11th of October 2002 are as f ollows:

6. Nancy

Katherine Shortt

h as not demonstrated acceptable responses to typical child behavior a nd continues to live with men who a bus e alcohol and abuse her. The Courtfinds tha

t all of the se requi

rements

are reasona

ble andrelated to the reasons the children came into foster

ca re or reasonsthat prevent the c hildren f rom retur ning to Ms

. Shor tt’s care. Both of these requireme nts are of signifi can t importance in de termining whet her the children can be safely returned home. Ms. Shortt has complied with the requirement that she have

a psy cholog ical eva

luation a nd paren ting ass essment, butwhile the se
are necessary

to det ermine if

Ms. Shortt is capable of parenting

c hildre n, compliance is not of significant importance as to whether the children can be safely returned to Ms. Shortt. Nanc y Katherine Shortt has been substantially non-c ompliant wi th the statement of responsi bilities in t

he perma nency plans.

7. The children have been removed from the custody of the parents more than six (6) months. The conditions that led to the children’s removal still exist or oth er condi

tions exist wh

ich would

in all prob ability subject the children t o further neglect or abuse if r eturned home. There is little likelihood that these conditions will be remedied at an early date so that

the child ren coul d be retur

ned to the Defend ant in the near future. The cont in uation of

the pare nt/child r elationsh ip great ly diminishes the children’s chances of early integ

ration into a stable and permanent home. Nancy Katherine Shortt’s mental incapac ity

to care for the c hil dren on he r o wn an d M ar vi n Ll oyd Shortt’s alcoholism are conditions that caused the children’s removal that still exists. T

he depos ition of William R. Sewell, Ph.D. was admitte d as an exhibit. Dr. Sewell opined that Nancy K atherine Shortt was not capable of providing for the care of the se children withoutextraordinary

service s, such asa compet ent adult living f ull time in the home with her and pro viding full time care for the-7- children. DCS is not required to have someone in the home 24 hours

a day, seven da

ys a wee k in or der for Nancy

Shortt to have the children live in her home. Other conditions also exist that prevent the children from returning home. The deposition of Maureen Sang er, Ph.D. was admittedas an exhibit. From the testimony of Dr. Sanger and t he fost er mothe

r, Nanc y K

ington, t here ar e suffic ient facts to find that Marv

in Shortt sexually abused these children. Na ncy Shortt has admitted t

o Angie B ullock tha

t she is cu rrently living with a man who abuses alcohol and beats Nancy

.

. . . .
10. It is in the best interest of these children that all the parental rights of said Defend ants to said children be forever terminated and that the complete custody, c ontrol, and guardianship of said children be awarded to the State of Tennessee, Department of Children’s Service s, with the r

ight to pl ace sai d childre n for ado ption and t

o consent to sai d adoption in loco par entis . Marvin Lloy

d Shortt and Nancy Katherine Shortt have not made an adj u stment of circumst ances, conduct o

r conditio ns as to ma

ke it in th e children’s best interest to return to either ’s h ome in the foreseeable future. Marvin Shortt and Nancy Shortt’s mental or emotional status wou ld be detrimental to the chi ldren and preven t them fro m effectively providing for the care and super vision of the children . . . .

From the Order terminating her pare ntal rights, Ms. Shortt ap peals. Ms. S hortt argues on appeal that since no Affidavit of Reasonab le Efforts wa s filed in the termination proceeding, no competent

evidence exists of reasonable efforts taken on beha lf of DCS to reunify the

family. She relies on Tenness ee Code A

nnotated section 3 7-1-166( c), which states:

To enable the court to determine whether such re asonable efforts have been made the departm ent, in a written affidavit to the co u rt in each proceeding wher e the child’s placement

is at issue, shall answer each of the following questions: (1) is re moval of the child from the child’s family nece ssary in order to protect the child, and, if so, then what is the specific risk or risks to the child or family that nece ssitates removal of the child ?; (2) What specific se rvices a re nece ssary

to allow the

child to remain in th e hom e or to be

returne d to the hom

e?; (3) What s ervice s have been provid ed to assist the famil y a nd the chi ld so as to

prevent removal or

to reunify the fa

mily?; and (4) Has the departm

ent had th e opportu nity to provide

service s to the family and the child, and, if not, then what are the specific reasons why services could not haveben provided?”-8-

It is well settled that the fundam ental r ights to care, custody

and control of children as

en um erated

in Stanley v. Illinois , 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), are not absolute. Upon cle ar and c onvincing evidenc e showing

that the b est inter

ests of the childre n would be served by the

termination unde r the app li cable statute, these rights may be terminated. See Santosk y v. Kramer , 455 U.S. 7 45, 102 S.Ct. 1388, 71 L .Ed.2d 599(1982); In re: Drinnon , 77 6 S.W.2d 96, 97 (Tenn . Ct. App. 1 988); Tennessee Dep’t of Human Services v. Riley , 689 S.W.2d 164, 165 (Tenn. Ct. App. 1984). See also, Riley , 689 S.W.2d at 169. Clear and convincing evidence establishes ample g

rounds fo r termina ting the parenta l rights o f Nancy

Katherine Johnson Shortt. In Re C .W.W. , 37 S.W.3d 467, 474 (Tenn.Ct.App. 2000). The court had ample evidence of the effortstaken b y the Depa rtment to secure counseling, evaluation and trea tment with an uncooperative mother. The court likewise had ample evidence of the mother’s continued be havior contrary to that provided for in the permanency plans. This Court’s Eastern Section considered this argument in State of T

ennessee, Dep’t of

Children’s Services v. Malone , No. 03A01-9706-JV-00224, 1998 WL 46461 * 1-2 (Tenn. Ct. App. E.S., Feb. 5, 1998). In c onsidering that argument the Court found the proper standard that enumerated in section 113 to be:

(1) In de termining whether terminat ion of par ental or guard ianship r ights is i n the best interest of the child pursuant to this part, the court shall consider , but is no t limi ted to , the f ollo wing: * * * (2) Whether the parent or guardian has f ailed t o effect a lasting adjustment after

reasona ble efforts by

available social services agencies for suc h duration of time that lasting adjustment does not reasonably appear possible;

Tenn. Code Ann. § 36-1-113(i)(2)(2002).

This standard has been uniformly a pplied throughout the state. See gen era lly In Re C .W.W. , 37 S.W.3d 467 ( Tenn. Ct. App. 2000 ); Stokes v . Arnold
, 27 S.W.3d 516 (Tenn. Ct . App. 200 0); see also Jone s v. Garre tt , 92 S.W.3d 835 (Tenn. 2002).

Having reviewed the reco rd on appea l this Court finds that clear and convincing evidence exists to support the finding of the trial court and the termination of mother’s rights. The Order of th e c ou rt is af

fi rm ed in al l r es pe ct s; th e c au se is re ma nd ed fo r f ur th er pr oc ee di ng s a s n ec es sa ry.

Costs of thi s cause a

re asse ssed ag ainst Appe

llant.

___________________________________ WILL IAM B. CAI

N, JUDGE