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

Briefs N ovember 16 , 2001
IN THE MATTER

OF: C. J.S.,

D.O.B . 7/11/95 CHILD UNDER THE AGE OF EIGHTE EN (18) YEARS
Appeal from the Juvenile Court for Rutherford County No. 27667J Ben Hall McFarlin, Jr., Judge

No. M2000-02836-COA-R3-JV - Filed February 22, 2002

A.E.S. is the mother of C.J.S., who has been in foster care for four of his five years. At the State’s petition, the trial

court te rminated these rig hts b ased upon A.E.S.’s m ental inc apacitie s. A.E.S. appealed t his decision arguing that the grounds for termination were not proven by clea r a n d convincing eviden

ce. We a ffirm the decision of the tri al court

. 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 ILL IAM C. K OCH , J R

. and W ILL IAM B. C AIN , JJ., joined. Gregor y M. Reed, Murfre esboro, Tennesse e, for th e appell ant, A.E. S.

Paul G. Summers, Attorney General and Reporter; Elizabeth C. Drive r, AssistantAttorney

Genera l, for the appellee, State of Tennessee.
OPINION

I.

A.E.S. gave bir

th to C.J.S. on July 11, 19 95. A.E.S. was unmarried and the identity of C.J.S.’s father is unknown. A.E.S. was mentally disabled at the time of C.J.S.’s birth and remains so. She has been diagnosed as a paranoid schizophre nic with mild mental retardation.

The Department of

Children’ s Service s (“DCS”) took custo dy of C.J.S. for the f irst time in October of 1995 wh

en he wa s three mo nths old. A t that time, A.E.S. was out in t he stree t with C.J.S. in a stroller yelling that she had been beaten and he had bee n burned . He was r

eturned to A.E.S. in December

of 1995, but

had to be removed again early in 1996 when A.E.S. got off her medication. Again, he was returned to A.E.S.’s custody, but in December of 1996 C.J.S. was taken awa y for a-2-

third and final time. On this occasion, A.E.S. was in the Rutherford County Guidance Center (the “Guidance Center”) reportedly slipping in and out of a c atatonic state.

DCS attempted to find a family member to take care of C.J.S., but no one would agree to care forhim. C.J .S. was then placed in a foster home with Ms. Puckett. Ms. Puckett subseque ntl y suffered a small stroke and her daughter, Ms. Ga ines is the current foster mother.

DCS filed a

Petition for Termination of Parental Rights on February 28, 2000. At the hearing A.E.S. stated that she does not understand money, she forgets to take her medicine, she will no t cross the street alone and runs out of money at the end of

the month. The Guida

nce Cent er pays h er bills and sends her money when she needs it. The Gu idance C enter a

lso does a monthly blo od test to te st her medicati on levels . She gets h er medic ine wee

kly at the STEPS progr

am or fro m her the

rapist. Sometimes she has missed her transportation, arranged by the Guidance Center, and, therefore, ha s not got ten her medicine. She lives in a one bedroom apartment, which, a long with her othe r financial support is supplied by a public agency.

There were various case

manager s througho

ut the fou r years C.J.S. was in custody . The fir st to testify w as Ms. Tou chere J ohnson, who became the resid ential ca se manager on February 28, 2000. She stated that she supervises the visits between C.J.S. and A.E.S. and is the case manager for the foster parents’ needs. She has observed tha tthere is not much interactionbetween mother and child. A.E.S. will sit and watch C.J .S. play un til she is in structed

by the ca se manag er how to play with him. A.E.S. does assist C.J.S. with going to the bathroom and getti ng somethi ng to eat. C.J.S. does not c all A.E.S. his mother. Ms. Johnson recalled an event where A.E.S. told C.J.S. she
was his mother and C.J.S. denied this. He calls Ms. Puckett, his original foster mother, “mom.” Ms. Puckett’s d aught er, Ms. G aines is C. J.S.’s cur rent fos ter mothe

r and wa nts to adop t him. Ms. Johnson was particularly concerned about A.E.S.’s ability to c are for C.J.S. bec ause he s tays up unt il 12:00 a.m. or 1: 00 a.m. and is up aga in at 5:00 a .m. She als o s tated that C.J.S. needed active involvement

regarding school. On cr oss-examina tion, she did state that she never observed any violentor abusive behavior by A.E.S. and that A.E.S. was always caring and loving toward the child. Melissa Bullard became the case manager for the c hild and f amily on April 10, 2000. She workedto set up services for both C.J.S. and A.E.S., such as parenting classes. She also supervised visits betwee

n C.J.S. and

A.E.S. She

testifie d to essentia

lly the sam

e informa tion as Ms. Johnson. She also stated that she d

id not belie

ve A.E.S. was capable of caring for C.J.S. because of her limited capabil ities. Ms. Bullard had not made many service s availa ble for A.E.S. because many services
were already in place through the Guidance Center and the STEPS program when she took over the
case. Ms. Sherry Hill was the case manager from Octobe r of 1995 to October

of 1997. She was the case ma

nager w hen C.J.S. f

irst came into State custody. She stated that when C.J.S. was returned to his mother

after th e first e pisode, se rvices w ere put i nto place for her by the Exchange Club. Includedin those se

rvices w as the STE

PS progra m. This pro gram wasto help with daily activities such a s shopping a

nd helping

her with h

er money . C.J.S. ca

me into Stat

e custody again be cause A.E.S. had gotten off of her medication. He was again re turned home with services for the mother.-3-

C.J.S. then came into State custody the final time because A.E.S. was lapsing in and o ut of a cataton ic state. The mother was on medication at the time this incident occurred. Ms. Hill testified that the visits s he super

vised bet ween the mother a nd child did not invo lve much i nterac tion. A.E. S. would watch C.J .S. play. A .E.S. was not able t o inter act with him and help him develop social skills. Ms. Hill never fel t comfort able dur ing her tim

e as cas e manage

r with re turning C.J .S. to A.E.S.’s custody. She was concerned about A.E.S.’s lack of intera ction with C.J.S. and was concerned

for his safety. Ms. Hill testified that she had obse

rved C.J. S. in Ms. Puckett’s fo ster home and that he depended on her for his needs. She believed they had a

good rela tionship. M s. Hill also went ove r the pro cedure

for term ination of parenta l rights wit

h A.E.S.

Debora Prytula, the case manager from October 1998 to February 2000, also testified at the he aring. In her po sition as c ase mana ger, she was assig ned to wor

k with both t

he moth er and th e child. She supervised a few visits between mother and child and no ted the la ck of interaction between the two. She also te sti fied that ther e was no r

ecord of visitation

from Oct

ober 199 9 to March 2000, which includes the four months preceding the filing of the petition to terminate parental rights.

The former r

esidentia l case manager from Nove

mber 1997 to January 1999, Doris Hoffman, testified that A.E. S. was hav ing unsupe

rvised vi sits in her home for about four hours at a time. The court’s goal in allowing the unsupervised visits was to make s ure that A.E.S. was not capable of caring for C.J.S. Ms. Hoffman testified that A.E.S.’s home was very cluttered. There was a problem withpes ts and fo od left ou t. A.E.S. o ften app eared d ishevele d. Some da

ys, A.E.S. would be a

ll fixed up and other days she would appear to be unaware of

what was going on. She also stated there
were se veral tim es when s he had to w ake A.E. S. when she brought C. J.S. for hi s visits.

A.E.S. and an acquaintance from her c hurch t estified on A.E.S.’s behalf. Annette Smart testified that she was in a bible study with A.E.S. She stated that the women in the bible study were willing to help A.E.S. anyway they could. She also stated that she had only know A.E.S. for three weeks, had never been to her house, a nd had seen but never met C.J.S.

Recalledto the stand, A.E.S. testified to many of the same things that she had before. She stated that she had had

no more fainting episodes and that she was taking her medicine. However, she did admit that she did not know what her medications were treating. She also stated that C.J.S. talked to her

sometimes, and sometimes he did not. When he does not talk to her, she does n ot talk to him. He does not call her mommy. She also admitted that she was doing the best she could and trying her best when C.J.S. was removed.

The tria l court ma

de the fo llowing fi ndings of f acts:
1. [C.J.S.] h as been in custody f our year s out of his five yea rs. 2. [A.E.S.] suffers from paranoid schizophrenia

. 3. [A.E.S.], wh en n ot taking her medications hears voices and hallucin ates.-4- 4. [A.E.S.] ha s no t always taken her medications as prescribed a nd on at least one occasion stopped taking her medications on her own. 5. [A.E.S.] does not know her income. 6. [A.E.S.] cannot cross the street without help. 7. [A.E.S.] cannot te ll time on a

regular clock, it must be dig ital. 8. [A.E.S.] cannot care for her self

without extensive daily intervention with commu

nity services. 9. Withoutit being her fault, [A.E.S.] is doing excellent to take care of herself, and looke d good toda y. It take s everyt

h in g she has t

wenty four hours a day, seven days a week to take care of herself. 10. [A.E.S.] loves [C.J.S.] very much and has not be en abusiv e to him in any way, physically or mentally. 11. [A.E.S.] has been

in at leas t four dif

ferent mental ho spitals in t

he last five yea rs. 12. Three months is t he long est perio d of time th at [C.J.S. ] lived with [A.E.S.]. 13. There is no abandonment in that [A.E.S.] provided the best visits that she could for her son. 14. The Department of Children’s Services made appr opri ate and
reasona ble efforts to locate relative and family resourc es to no avail. 15. [A.E.S.] has been going to church for three wee ks but no [sic] long enough to consider [C.J.S.] to be safe and secure and not long enough to have a safe support network through church. 16. This matter is a complex and lengthy case. 17. [A.E.S.] had extr

emely co mpetent c ounsel ap poin ted for her

in this
case. 18. T hat in te rms of best interest, [A.E.S.] has not made such an adjustmentof circumstances, conduct, or conditions as to make it in the child’s best interest to return to her home in the fore seea ble future; she has f

ailed to e ffect a lasting ad

justment a

fte r reasona

ble effortsby available social agencies for such dura tion of time that lasting adjustment does not reasonably appear possible; and the Court has considered the effect of a cha nge of caretakers and physical environment

is likely to ha

ve on the c

hild’s emo tional, psychological and medical condition; that the physical environment of the parent’s
or guardia n’s home may not b e healthy a nd safe, and [A.E .S.’s] mental and/or emotional status would be de tri mental to the child or prevent the pare nt or guar

dian fro m effec tively pro vidin g safe and stable care and supervision for the child.

The juvenile court

judge concluded that A.E.S.’s parental rights should be terminated. She appe als this decision.

II.-5-

Parents have a

fundamental right to the care, custody, and control of their children. Stanley
v. Illinois , 405 U.S. 645 (1972); Nale v. Robertson , 871 S.W.2d 674 (Tenn. 1994). Under Tenn. Code Ann. § 36-1-113(g)(3) a termination proceeding may be initiated if the child has been removed from the home for at least six months, and: (i) The cond

itions whic

h led to to th

e child’ s remova

l or other condition s which in all reasonable probability would cause the child to be subjectedto further abuse or neglect and whic h, therefore, pr event the child’s s afe re tu rn to the care of the parent( s) or gua

rdian(s ), still pe

rsist; (ii) There is little likelihood that these conditions will be remedi e d at an ea rly date
so t hat the child can be safely returned to the par ent(s) or guardian(s) in the nea r future; and (iii) The continuation of the paren t or guard ian and child rela tionship gr

eatly diminishes the child ’s chanc es of ea rly integra

tion into a s afe, sta

ble and permanent home.

Tenn. Code Ann. § 36-1-11 3(g)(3) (A)(i) -(iii). T o termina te parental rights the State must show by clear and convincing evidence that grounds exist for the terminat ion and tha

t it is in the b est inter

est of the child. Tenn. Code Ann. § 36-1-11 3 (c)(1) & (2); In re Drinnon , 776 S.W.2 d 96 (Ten n. Ct. App. 1988). Clear and convincing evidence is evidence that “eliminates any serious or substantial doubt concerning the correctness of the conclusions to be drawn from the evidence.” O’Daniel v. Messier , 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995).

III.

The appellant’s first issue is whether the trial court erred in its finding that the State proved by clear a

nd convin cing evid

ence tha t the cond

ition whic h led to C.J. S.’s remo val p ersist s as required under Tenn. Code Ann. § 36-1-113(g)(3)(A)(i). The condition which led to C.J.S.’s removal , according to the Petition for Terminat ion of Par ental Rights was that, “the mother continua lly demonstrat ed that she could not meet the child’s needs despite assistance from the Department

for a period of 14 months prior to the child’s third removal from the mother’s care.” Our Supreme C ourt has h

eld that mental disability can be the basis for the termination of parental rights. State v. S

mith , 785 S.W.2d 336 (Tenn. 1990).

The State has clearly proven through the testimony at the hear ing that A.E.S.’s mental condition still prev ents her from meeting C.J.S.’s needs. A.E.S. is barely able to take care of herself withmassive outside assistance. She does not pay her own bills, often runs out of money, must have transportation provided, and has problems making herself presentable. In addition, at the visitations A.E.S. does not in

teract with her c hild until in structed how to do so. It is apparent from the testimony at the he aring, th at A.E.S. h as diffic ulty meeting her own needs, much less those of an active, growing f

ive-yea r-old boy at the

time of the he aring. A .E.S. has c learly n ot learned the ski lls
s he needs t o care for C.J.S. without constant supervision. Therefore, we f ind there is clear and convincing eviden

ce that th e conditi on which l ed to C.J.S. ’s remov al persis ts.-6- IV.

The appellant’s second issue is whether the trial court erred in its find ing th at the Sta te provedby clear and

convincing eviden

ce that th e conditi on which l ed to C.J.S.’s r emoval is u

nlikely to be soon remedied as required under Tenn. Code Ann. § 36-1-113(g)(3)(A)( ii). It is also clear from the testimony at trial that A.E.S.’s mental condition is unlikely to be remediedin the ne ar future. A.E.S. has been

diagnose d as para

noid schiz ophrenic

and mildly m

entally retard ed. She wi ll likely be on medication for the rest of her life. Her difficulties with taking care of herself, including taking hermedicati o n, is the main reason she lost custody of C.J.S. She has been the recipient of many forms of assistance for the four years preceding the petition, but there has been little improvement shown in her ab ility to c are for herself and C.J.S. The proof showed tha t sometimes her abilities slightly improve, but

then she suffers relapses. The proof is clea r and convincing that therehas been
no consistent improvement in A. E.S.’s m ental condition such that the condition would soon be remedied.

V. Appellant’s third issue is whether the trial court erred in its finding that clear and convincing proof showed that the continuation of the legal parent-child relationship greatly diminishes C.J.S.’s chances of early integration into a stable and per manent home as required under Tenn. Code Ann. § 36-1-113(g)(3)(A)(iii). Clearly, if A.E.S.’s rights are not ter minated, C.J.S. will probably live in
a foster home until he reaches the age of majority, and fo ster ca re, eve n good fos ter car

e, is not a substitute for a permanent home. C.J.S.’s current foster par ent, the daughter of thewoman he calls “mom” wishes to adopt him. Wh ether sh e should be allowed to do so we leave to a later determination. But as of now adoption appears to be C.J.S.’s only chance to be raised in a stable, permanent home.

We find that t

here is c lear an d convinc ing evide nce to support th e judge’s decision that termination of A.E.S.’s parental rights was proper under the requirements of Tenn. Code Ann. § 36- 1-113 (g)(3)(A)(i)-(iii). In addition to proving that grounds exist, the State must also prove tha t i t is in the bes t interes t of the c hild. In ma king a bes t interes tdecision the legislature has established factors for the courts to consider , one of which is found in Tenn. Code Ann. § 36-5-113(i)(8): whether “the parent’s or

guardian’s mental and/or emotional status would be detrimental to the child
or prevent the pare nt or guar dian fro m effec tively pro viding saf e and sta ble care and

supervision for the child . . . .” This factor has also been shown by clear and convincing evidence.

This is a very unfortunate case. It is obvious from the recor d that A.E.S. cares about her son a great deal. However, the rec ord shows by clear and convincing evidence that A.E.S. ca nnot take
care of herse

lf, much le ss C.J.S. The

re seem s to have b een some improvement in her situation, but notenough to warrant returning C.J.S. to her custody. Becaus e we find that the grounds for termination of A.E.S.’s parental rights have been proven by clea r and convincing evidence and that it is in the best interest of C.J.S. for those rights to be terminated, weaffirm the juv enile court’s decision.-7-

We affirm the decision of the trialcourt. The cause is remanded to the Rutherford County Juvenile Court for

any furt her proc eedings necessa

ry. Tax th

e costs on ap peal to the appell ant, A.E.S.

_________________________________________ BEN H. CAN

TRELL, PRESI

DING JUD GE, M.S.