### IN THE COURT OF APP EALS OF TENNESS EE AT JAC KSON A ssi gne d on Br ie fs A pr il 7, 200 6

IN RE H .A. ( D 

### . O 

### . B 

### . 10/ 08/ 98) AND 

### J.R.B., J R 

### . ( D 

### . O 

### . B 

### . 11/24/ 99)

STA TE OF TEN NES SEE, DE PA RTM ENT OF CH ILDR EN’ S SE RV ICES

v. M IC HE LL E A D A IR
An Appeal f

romthe Chancer y Court for Shelby Cou nty No. CH-01-2506- 2 Arnold B. Goldin , Chancellor

No. W2005-01912-C OA-R3-P T - F iled October 5, 2006

This is a termination of par ental rig hts case. In 1999, the childre n involved in this action were taken from the mother ’s custody into state custody . They wer e later

adjudicate d depende nt and neg lected by the juvenile court. The childre n re m ai n ed in foster car e, and thestate deve loped seve ral perma nency

plans with the g oal of re turning the childre n to the mother. T h e p l an s require d the mother to, int e r a lia , atte ndpa re nti ng c la sse s a nda ng e r ma na g e me nt p ro g rams a ndto o btain s ta ble housing and employ ment. The children remained i n foster c are for the ne x t six y ear s. Meanwhile, the mother obtaine d stable housing , but she failed to complete either parenting classes or an ang er manag ement prog ram, and she fa i led to obtain stable employ ment. The g oal of the pla ns was ch an ged to adoption. The state filed a pe tition t o terminate the mother’s pa renta l rig hts based on persistent conditions a nd failure to c omply with the perma nency plans. After a trial, the tria l court te rm inate d th e mothe r’ s p are nta l r ig hts on bo th grou nd s. The mothe r n ow app e a ls. We a ff ir m, finding that the evidenc e supports termination on both g rounds.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Chancer y Court is Aff irm ed

H OL L Y M. K I RBY , J. , d e li v e r e d th e o p in io n o f th e Co u r t, in w h ic h W. F RAN K C RAW FORD , P.J ., W.S ., and A L AN E. H I G H ERS , J ., joined.

Debor ah M. He nderson, Me mphis, Tennessee , for the a ppellant, Michelle A dair.

Paul G . Summe rs , Atto rn e y Ge ne ra l a ndRe po rt e r, a ndAm y T. Ma ste r, As sis ta nt A tto rn e y Ge ne ra l, Nashville, Tenne ssee, f

or the a ppellee, T ennesse e De partment of Children’ s Services.-2- OP IN ION
Respondent/Appellant Miche lle Adair (“M o t her” ), is the biologic al mother of the two children involved in this action, H.A. ( daug hter, born 10/08/98) a nd J .R.B., J r. (son, born 11/24/99). She g ave birth to H.A. when she was e ighte en (18) y ear s old, and J .R.B., Jr. when she wa s nineteen (19) y ear s old. On October 22, 1999, H.A. was hospitaliz ed for inge sting blea ch while in Mother’ s
car e. Petitioner/Appellee Tenne ssee Depa rtment of Children’s Servic es (“ DCS”) re fer red Mother to a poison preve ntion class. On the day H.A. was hospitaliz ed, Child P rotec tive Service s (“CPS”) inv e sti g a te d M oth e r’ s h ome a ndfo un d th a t th e fo odin the ho me wa s in a de qu a te a ndthat the ho me had uncove red elec trical outlets. CPS ag ain visited Mother ’s home on October 28, 1999, and found H.A. alone in the home, eating off of the floor. DCS filed a depe ndency and neg lect petition in the J uvenile Court of Memphis and Shelby County(“Juvenile Court”), a nd the J uvenile Court g rante d DCS temporary

custody of H.A. on N ovember

5, 1999.

O n N o v e m b e r

2 4 , 1 9 9 9 , a

l i t t l e o v e r t w o w e e k s a f

t e r H

. A

. w a s t ak e n i n t o p r o t e c t i v e c u s t o d y, her y oung er br other, J.R .B., Jr. (“J.R.B.”), wa s born. While both J .R.B. and Mothe r we re still in the hospital, Mother dropped the child. The staf f at the hospital was conc erne d reg arding Mother’s ability to car e for the child; they described her

handling of J.R .B. ove r the c ourse of more than one shift a s “ca

rele ss,” indicated that she was wary and not c ooperative with the staff, and p er ceive d Mother’s mental ability as “slow.” A CT sc an was perf ormed on J .R.B., which showed no damag e. J .R.B. rema ined in the hospital until Dec ember 8, 1999, when he was also taken into p ro t ec t ive custody by DCS.

O n D e c e m b e r

1 7 , 1 9 9 9 , t h e c h i l d r e n ’ s G u ar d i a n A d L i t e m , a t t o r n e y Y o l l a n d e r H o l l o w a y, filed a report w ith the J uvenile Court de tailing he r interview with Mother, per sonnel at the hospital at which J.R.B. was born, a nd others. Holloway indicated that the interview with Mother pr oved difficult. Reg arding the incident in w hich J .R.B. was dropped, Mother insisted that ho s p ital personne l were “ly ing” and that J.R .B. ha d mere ly “slipped.” H olloway d es cr i b ed Mother as

app e ari ng “ ou t of

it, ” a nd“ sta

ri ng a s i f she wa s in a

tr a nc e .” Mo the r r e fu se d to a ns we r b a sic questions, such as whe ther she w orked or used day car e or a

baby sitter. The visit was made more difficult by

the pre sence of J.R .B.’ s fa t h er in Mother’s home. The report indicates that he w as ag itated, re peate dly

exhorted Mother not to answer questi o ns, and exhibit ed thre atening behavior t o w ar d H o l l o w a y. Holloway also interviewe d hospital personne l wh o m et with Mother af ter J.R .B. w as dropped. The hospital personnel we re most conc erne d about Mother’ s demea nor, desc ribing her a s “slow” and reluc tant to answer basic questions suc h as wher e she lived. The nurse working the nig ht sh if t to ok Mo the r’ s in fant f

ro m Mo the r’ s r oo m ba ck to the nu rs e ry be c a us e sh e ha d p re vio us ly observe d Mother “be ing c are less with the baby .” A DC S worke r interview ed by Holloway

described Mother’s de meanor

in severa l meeting s as “non r esponsive, with a f lat aff ect.”

On the same day , Dec ember 17, 1999, in separate orde rs, the Juvenile Court adjudicated H.A

. a ndJ.R.B . to be de pe nd e nt an d ne g le c te d. I n the fi rs t ord e r, the Juve nil e Cou rt fo un d tha t, pr ior toT he C ent er f o r Chil d ren i n C ri si s i s p art of t he Le B o nheur C hi l d ren’ s M ed i cal C ent er, C ent er f o r Chil d ren and 1
P arent s (“ C C P ”).
-3- r e m o v a l , M o t h e r

w a s w ar n e d o n t w o o c c a s i o n s t h a tH

. A

. w a s b e i n g k e p ti n u n s a f e c o n d i t i o n s

. It determined that Mother had ma de no chang es to the inappropriate living c ondition, and rec ited that

rea sonable eff

orts wer e made to pre vent re moval of the c hildren fr om the home. As to J .R.B., the J uvenile Court note d that Mother had dropped him in the hospital shortly afte r hi s b i rt h , an d that hospital reports indicate d that the hospital personne l perc eived that Mother was care less in handling J .R.B. and did not know how to c are for him. The dependenc y and neg lect orde rs wer e not appe aled. B othof the c hil dr e n we re pla c e d in fo ste r c are thr ou g h the fo ste r c are pla c ing a g e nc y , AG APEChi ld

a ndF a mil y

Se rv ic e s ( “ AG APE ” ), a ndsin c e the n ha ve re ma ine d in the c are of fo ste r p are nts B e tty Jo an d D a vidHi ll.

Ov e r the c ou rs e of

the six y e ars in w hich H.A . wa s in fo ste r c are , D CS de ve lop e d s ix perma nency plans for her. The first was developed on November 15, 1999. The g oal of this plan was to re turn the child to Mother. The plan required Mother to c omplete an e valuation at the Cente r f o r C hil dr e n in Cr isi s ( “ CCP” ) a ndfo llo w i ts r e c omm e nd a tio ns , anda lso to atte ndpa re nti ng c la sse s. 1 I n a drug test administered on November 9, 1999, Mother tested positive f or marijuana . Ba sed on this, the permane ncy

plan re quired he r to attend a lcohol and drug treatment. I t also require d Mother to keep in we ekly

contac t with DCS . Mother sig ned this plan, as we ll as the Adopt i o n an d Safe F a mil ie s A c t a c kn ow le dg ing that sh e re c e ive d in fo rm a tio n o n th e way s in wh ic h he r pa re nta l r ig hts could be terminated.

Over the nea rly six y ear s in which J .R.B. was in foster c are , DCS developed five perma nency pla n s f o r h im

. T h e f

ir s t f o r J. R. B

. w a s d e v e lo p e d o n M ar c h 2 0 , 2 0 0 0 , a lo n g w ith a revised pe rm a ne nc y

plan f or H. A. Th e g oa l of the se plans wa s to re turn th e c hil dr e n to Mo the r. I n o rd e r t o
me e t th a t g oa l, M oth e r w a s r e qu ir e d to a tte nda CCP e va luation and foll ow its re c omm e nd a tio ns , attend par enting classes at the Ex chang e C lub and demonstrate appropriate parenting skills, receive alcohol and dr

ug treatment, ke ep in weekly contac t with DCS , attend ang er ma nag ement cla ss, and ob ta in m e nta l he a lth c ou ns e lin g . M oth e r s ig ne d b othplans

.
M o t h erb ega n s o m e p ar en t i n g cl as s es att h e E x ch an ge C l u b Fa m i l y C en t er(“ E x ch an ge Club”). When she was late for one session and w ould not do an assig nment, she wa s informed that she would have to retake the par enting class. At that point, a n alterc ation arose betwee n Mother and the class f acilitator in which Mother appar ently threatened the pare nting inst ructor; the police we re then ca lled. Mother wa s asked to lea ve the c lass and not re turn to the Exchang e Club.
Mother participated in an initial int erview at CCP on May 15, 2000, and an e valuation throug h CCP on J uly

13, 2000. The re cord inc ludes a writ t en sum mary and re commendations arising out of

the interview and eva luation. I n the history g iven in her inter view, Mother sa id that she was place d in f

oster car e when she was about three y ear s old. W ithin a time period of about f our y ear s, Mother lived in f

our to six foster homes. Mother sa id that she had suff ere d abuse in seve ral of the foste r homes, including beating s and burns. When she wa s about seven y ear s old, c ustody of-4-

her w as finally

g iven to her biolog ical father, a nd she re mained in his custody

. Mother tol d CCP that she droppe d out of school af ter the e leventh g rade , had not re ceive d her G ED, and g ave birth to H.A. wh e n sh e wa s e ig hte e n (1 8) y e ars old

. Mo the r ind ic a te d that sh e no lon g e r h a d a re la tio ns hip wi th her f ather beca use he ha d made “ false” reports of neg lect on her part.
The CCP report n o te s th at M o th e r ’ s “ p r e s e ntation was one of marke d immaturity ,” re marking that she had a n extremely low frustration level, gave up on tasks easily , and wa s very g uarde d and mistrustful of the proce ss. Her insig ht and judg ment wer e desc ribed a s “poor.”

Ba sed on the CCP evaluation, Mother wa s diag nosed with a sig nificant pe rsonality disorder, “nar cissistic, somewhat par anoid, and se lf-def eating .” Mother’ s I .Q. was assessed as seventy -seve n (77), placing her in the bor derline to mildly reta rded r ang e, with a se venth-g rade rea ding le vel. The evaluati o n c o n c lu d e d th a t M o th e r h a d a g e n e r a l le v e l o f f u n c ti o n in g o f f

o r ty

- f iv e ( 4 5 ) o u t of one hu nd re d ( 10 0) . T he re po rt state s:

I n summary , interview data sug g ests [Mot her] to be a very i m mature a nd ir r e s p o n s i b l e p ar e n t

. S h e s e e m e d t o h a v e m i n i m a l i n s i g h t i n t o t h e i s s u e s r a i s e d in this c ase and tended to r ationalize and minimi ze problems. [Mot her] probably has the potential for lea

rning the bar e esse ntials of pare nting skills, b u t wi l l l i kely ever be only marg inally

adequate. She will need a g reat deal of w ork in this area

. . . . * * * Th e ps y c ho log ic a l eva luatio n o f [M oth e r] d oe s n ot b od e we ll f or he r a de qu a c y

a s a protec tive and non-neg lectful pare nt. .

. . Although the particula r inciden t s which tr ig g e re d th e remov a l of

the se c hil dr e n may

be re la tiv e ly

ins ig nif ic a nt andc ou ld happen to a ny one, th er e ap pear s to be a much more perva sive problem with the fu nc tio nin g of

[Mothe r] w hic h is se ve re a ndre la tiv e ly un lik ely to rel e nt t o intervention.

CCP rec ommended that Mother complete pare nting and ang er manag ement classes, i n d i v idual counseling , and couple s therapy to addre ss domestic violence issues r eporte d by J .R.B.’s f

ather

.
On F e br ua ry 13 , 2 00 1, a no the r p e rm a ne nc y plan w a s p ut i n p la c e fo r b othc hil dr e n. Th e se plans h a d th e d u a l g o a ls o f r e tu r n in g th e c h il d r e n to M o th e r a n d a d o p ti o n

. T h e p lan s r e quired Mother to attend pare nting classes at the University of Tenne ssee, B oling Cente r (“ Boling Center” ); at t en d anger

manag ement cla sses; obtain individual therapy ; maintain stable housing and employ ment; and maintain re g ular visits with the children. The plans provided that DCS would be responsible for

making arr ang ements for Mother to visit the children, and that she would have a min imu m vi sit a tio n o f f

ou r h ou rs mon thl y . M oth e r s ig ne d th e se plans

.
On Feb ru ar y

6, 2001, Mother beg an attending pare nting c lasses at the B oling Cente r. Although she completed the c lasses, the B oling Cente r re ported that she had a bad attitude during class, wa s difficult to work with, and did not bene fit from t h e p ro gra m

. M other late r beg an individual counseling and ang er ma nag ement cla sses at Fray ser Family Counseling Cente r. OnT h e p a re n ta l righ ts o f t h e c h ild re n ’s b io lo g ic a l fa the rs a re no t at issu e in this a p p e a l. 2

-5- Fe bruary 22, 2001, howeve r, Mother b ro u gh t a k nife to her ang er ma nag ement cla ss and

c on se qu e ntl y

wa s a sk e d to le a ve the c la ss.

On J uly 31, 2001, the J uvenile C ourt enter ed an order that chang ed the perma nency g oal for b o t h c h i l d r e n t o a d o p t i o n o n l y.

On Dec ember

13, 2001, DCS fi l ed a petition to terminate Mother ’s par ental rig hts. The petition sought to terminate ba sed on Tenne ssee Code A nnotated § 36-1-113( g )(3) (A), a sserting that the childre n had bee n in DCS custodyfor more than one y ea r an d t h e condit ions which led to the

remova l of the childre n persisted a nd would likely not be re medied at an ea

rly date, a nd also based on section 36-1-113(g )(2) , asserting that Mother had not substantially

complied with the responsibilities outli ned in the permanenc y plans. DCS alleg ed that

ter mi n ati o nof Mother’ s pare ntal rig hts was in the childre n’s best intere st. Despite the filing of the pe tition t o terminate, no a ction was taken on the pe tition at that ti me. At some point in 2002, Mother g ave birth to he r third child, a son. Mother voluntarily g ave up custody

of the third child to a f

riend, a nd her pa

renta l rig hts as to this child are not at issue.

I n May 2002, attorney L avern Mason King was a ppointed Guar dian Ad Litem for the children. Counsel for

Mother, as w ell as the c hildren’s fathers, wa s appointed. 2

Meanw hile, on May

28, 2002, another

set of perm an en cy p l ans was developed f or the

c hil dr e n. T h e g o a l o f

t h e s e p l a n s w a s a d o p t i o n

. T h e p l a n s r e f e r e n c e d a D C S Q u ar t e r l y

P r o g re ss Report which noted Mother’s chronic forg etfulness re g arding visitation, st ating that DCS had g iven

writt e n v isi ta tio n s c he du le s to Mo the r, but sh e mispla c e d th e m a ndmis se d v isi ts. Th e pr og re ss report observed that Mothe r was “limited me ntally ” and seeme d “unable to understand how to c are for he r child. She see ms unable to understa nd the child’s basic needs.” The plans requir ed Mother to participate in reg ular v i s itation, attend pare nting c lasses, attend a ng er ma nag ement cla sses and de mon str a te c on tr ol o f h e r ang e r, a tte ndc ou ns e lin g , a ndma int a in s ta ble ho us ing a nde mpl oyme nt.

On Ma rc h 2 5, 20 03 , a no the r se t of pe rm a ne nc y plans wa s d e ve lop e d f

or the c hil dr e n, bo th with the g oal of a doption. Ec hoing the earlier plans, this set also requir ed Mother to attend pare nting

c la sse s in or de r t o le arn a ndde mon str a te app ro pria te pa re nti ng sk ill s, ma int a i na

p o s i t i v er e l at i o n sh ip with her c hildren by

reg ularly attending visits, attend ange r mana g ement cla ss and control he r ang er, learn coping skills for her menta l health issues, atte n d in d ividual counseling , maintain stable housing and employ ment, and provide a saf e home f or the c hildren.

On Octobe r 30, 2003, Mother be g an an ang er manag ement class throug h the Ex chang e Club. Mother missed the first c lass session ; n ev erthe less, the class f acilitator, Ha llie Cohen (“Cohen” ), ag ree d to enroll Mother as a favor to Mother’s DCS ca se mana g er. H oweve r, bec ause Mother hadT h e “ u pdat ed” r epor t r ef er s t o a pr i or i n v es t i g at i on a y ea r e ar l i er

. A n y re por t of s u ch a n i n v es t i g at i on w as n ot 3
inc lud e d in the re c o rd o n a p p e a l.

-6- missed the first class, Cohen told Mother that she would rec eive only a letter of attenda nce f

or the class, not a g raduation certificate.

On Janu ary

14 , 2 00 4, DC S de ve lop e d it s f ina l pe rm a ne nc y plans fo r the c hil dr e n, bo th w ith the g oal of a doption. Under H.A .’s plan , M o t h er was re quired to attend a dditional parenting and ang er ma nag ement cla sses at the Women’s Exchan g e, maintain re g ular visits with the children, obtain individual c ounseling , participate in ang er manag ement cla sses, and maintain stable housing and employ ment. J .R.B.’s plan w as virtually the same, e x cept that it ac knowledg ed that Mother ha d

c omp le te d a n a ng e r m a na g e me nt c la ss on No ve mbe r 11, 20 03 , thr ou g h the Exc ha ng e Clu b. De sp ite having completed the class, the perma nency plan did not indicate that Mother had fulfilled the plan g oal of de monstrating that she knew how to control her ang er. Consequently , AGAPE arrang ed for Mo the r t o atte ndind ivi du a l a ng e r m a na g e me nt c ou ns e lin g wi th Wi lli e Ho lc omb , th e A G APEfamil y service s counselor. O ut of four sc heduled c lasses, howe ver, Mother attended two. T he permanenc y plan also noted that Mother completed pare nting classes in 2001, but stated that the demonstration of h er pa renting skills needed to be “ updated.” The plan note d that Mother ac quired housing on November

25, 2003.

On J anuary 27, 2004, the J uvenile Court enter ed an or der stating that “prog ress is not being

ma de in co mpl ia nc e wi th the pe rm a ne nc y plan” a nd su sp e nd e d Moth e r’ s visi ta tio n p ri vil e g e s “ un til termination of parental rights are finaliz ed.” The order does not explain the reasons for suspending Mother’s visitation. On J uly 23, 2004, the t rial court entere d an orde r re instating Mother ’s visitation. At some point during this interim, Mother had her fourth child, a daughte r, who c ontinued to reside wi th M oth e r thr ou g ho ut the se pr oc e e din g s. On Aug ust 26, 2004, Guardian A d L item (“GA L ”) L av er n Mason King filed an updated

re po rt

. I n the re po rt , Ki ng de ta ile d int e rv ie ws wi th DC S pe rs on ne l w ho app are ntl y dis a g re e d w ith 3 one anothe r about the ha ndling of Mother’s c ase. The case mana g er, Joy ce H ender son, felt that the DCS goa l s h o u l d b e reunific ation, not adoption, believed that Mother had complete d the require ments of the orig inal perma nency plan and wa s conce rned a bout new plans whic h require d Mo the r to re pe a t item s tha t had be e n co mpl e te d. Th e DC S Sup e rv iso r, Sy re tta B ump us , r e po rt e dly

“ ins ist e d” that th e g oa l of the c hil dr e n’ s p e rm a ne nc y plans sh ou ld b e a do pti on , n ot r e un if ic a tio n w ith Mother, and King e x presse d misgiving s about Bumpus’ “ determ i n at i o n to control this case’ s
ou tc ome

. . . .” Th e ne w ca se ma na g e r, Ke va Pe rry , told Ki ng that Mo the r h a d n ot c omp le te d s ome of the require ments of the permanenc y plans, such as suc cessf

ul completion of ang er ma nag ement classes, ha d not f

ound suitable employment, and that there was continued conce rn about Mother’ s ability to c are for four children. Howeve r, Perry also expressed conce rn to King that “a numbe r of the re qu ir e me nts on the c ur re nt pe rm a ne nc y plan are be ing re pe a te d a t the ins ist e nce of DCS Supervisor B umpus.”-7-

I n he r re po rt , GA L Ki ng a lso e xpre sse d c on c e rn that the c hil dr e n’ s fo ste r mother b ecam e overly -involved and did not respe ct the appr opriate bounda ries for a foster pare nt. She cited as a n example that J uvenile Court’s ea rlier or der stopping Mother’s visitations with the children, w hich

was enter ed at the reque st of the foster mother, without input from DCS, because the foste r mother disag ree d with some of Mother’ s remar ks to the children reg arding rac e. King wa s conce rned that the foster mother di d not seem to understand the purpose of the permanenc y plans or “the fac t that it i s no t a fo re g on e c on c lus ion that th e ri g hts of the birth p are nts wi ll b e te rm inate d. ” Ki ng a lso noted, howeve r, that the foste r mother wa s g enuinely conce rned a

bout the welfa

re of the childre n, discussed in detail J.R .B.’ s behavior pr oblems, and wa s interested in a dopting both childre n.

Fr om King’ s interview with Mothe r, she surmised that Mother’ s housing wa s well-kept a nd sufficie nt for her self and the children. She w as unmarried and une mploy ed, but rece i v ed AFDC bene f it s

. Sh e d e s c r ib e d p lan s to r e c e iv e tr a in in g to b e c o me a c e r ti f ie d n u r s e a s s is tan t. Mother indicated to King that she had c ompleted ang er ma nag ement cla sses in 2003 and “se emed una war e of any problems with the status of her completion.”
Considering her inve stigation, GAL King stated that Mother did not “appe ar to be equipped to h a nd le the c are a ndup bring ing of fo ur c hil dr e n n ow a ndI

a m c on c e rn e d that sh e ma y no t be able to do so in the near f

uture.” Neve rtheless, King felt that “the g oal in this case should ul timately be reunific ation.”

I n th e fa ll o f 2 00 4, J.R.B ., by the n a lmo st f

ive y e ars old , wa s e va luate d b y CCP p sy c ho log ist Chris Bertram. J.R .B. w as desc ribed a s “extremely difficult to direc t” and “ provocative, impulsi ve and hy pera ctive during evaluation.” He wa s reported to exhibi t disruptive and compulsive beha viors in his home with the foster parents. The ex aminer opined that J .R.B. could ha ve a se rious underlying problem, such a s bipolar disorder , but a lso obse rved that part of his be haviors wer e “r elated to the perma nency

issues that have ove rshadowe d [hi s] ps y cholog ical deve lopment.”

I n October

2004, Mother participated in a second evaluation at CCP and wa s interviewe d by EmilySusan Moffatt (“ Moffatt”), a lice nsed clinica l social worke r, and Earle Done lson, Ph.D. (“D onelson”), a

psy cholog ist. I n this evaluation, Mother’s acc ount of her childhood was diff ere nt from the account given in her f irst evaluation. I n this evaluation, Mother c laimed that she wa s raised by her paterna l aunt and uncle and never knew her father

. She told Donelson that she had g raduated f r o mh i g h s c h o o l i n 1 9 9 7 a n d w a s c u rr e n t l y e n r o l l e d i n a C e r t i f i e d N u r s i n g A s s i s t a n tP r o g r a m

. In contra st to what Mother told Donelson, she told Moffatt that she had obtained he r re g istered nur sing d e g r e e a n d w o u ldb e a tt e n d in g me d ic a l s c h o o l i n D e c e mb e r 2 0 0 4

. I n f

a c t, M o th e r

h a d never g ra du a te d fr om hig h sc ho ol. Mo the r a lso de nie d th a t sh e ha d e ve r t ri e d a ny a lc oh ol o r i lle g a l dr

ug s, even thoug h she had te sted positive for marijuana in a dr ug scre en in 2000. Mother maintained that the positive result on the drug test was simply wrong

. During the CCP evaluation, Mother was observe d interac ting with the children. The soc ial work intern note d that, at first, the children w armly g ree ted Mother with hug s. L ater , the childre n
seeme d to ignor e Mother and continue playing. M o t h er “went into the play are a with [H.A.] andA t t o rney L avern M ason K i ng w as p erm i t t ed to wi t hd raw a s G uardian ad L i t em i n N o vem b er 20 0 4 , and M r. 4
Joh n s on w as a ppoi n t ed.
-8- wra ppe d h e r

ar ms ar o u n d h e r

. [H

. A

. ] s a idth a t s h e w a n te d to p lay w ith h e r d o ll , b u t [Mother] ref used to let g o of her .” At that point, the s ocial worker inter vened and asked Mother to let go of H. A. so that sh e c ou ld p la y . J.R. B . w a s r e po rt e d a s b e ing “ pa rt ic ula rl y un com for tab le aro un d h is mother, and [Mother] spoke more ha rshly toward him than his sister .

. . .” Mother a lso pitt ed H.A. and J.R .B. a g ainst eac h other a nd laug hed as the y arg ued with ea ch other

over a soda. As the children’ s arg ument esca lated, the soc ial worke r interve ned and took the soft drink aw ay from the children.
Ultimately , both Moffatt and Donelson conclude d that, since he r eva luation in 2000, Mother had made littl e prog ress towa rd ac quiring the ability

to provide appr opriate c are for he r childre n. They believed that Mother failed to understand her children’s needs and placed her own needs above theirs. Moffatt defer

red a final re commendation until further psy cholog ical eva lu at ions were completed, but Done lson concluded that Mother “c annot be e ndorsed for the return of her children.” He r ecommende d that termination of Mother’ s pare ntal rig hts “be c onsidered as i n the childre n’s be[st] interests.”

On J une 8, 2005, the next Guar dian Ad L item f or the children, attorney Curtis Johnson, filed his report. After

interviewing Mother, the c hildren, the foste r par ents and the AGAPE c ounselor, 4 GAL J ohnson reported that Mother was living in an apartment wit h the y oung er sibling s of H.A. a nd J.R.B ., app are ntl y

no t e mpl oy e d b ut r e c e ivi ng AF DC be ne fi ts. He state d that du ri ng Mo the r’ s v isi ts wi th t he c h i l d r e n , s h e s a i d t h i n g s t h a t u p s e t t h e m , s u c h a s t e l l i n g t h e m t o p a c k t h e i r b a g s b e c a us e they and J.R .B.’ s father

wer e g oing to move back in with her. Johnson st ated that both childre n wer e
c on fu se d a ndup se t, and J.R.B . in pa rt ic ula r a c te d o ut a g g re ssi ve ly

be fo re , d uring , a nda ft e r the vis its

. J ohnson noted t hat “the children ha ve bee n in the Depa rtment’s custody

for a lmost five y ear s without any meaning ful attempt by

the mother to re g ain custody ,” and he rec ommended te rm i n at i o n of Mo the r’ s p are nta l r ig hts

.
The trial on the petit ion for termination was held on J une 9 and 10, 2005. DCS presented four witnesse s along with documentary evidenc e to support its petition.

Moffatt, who had worke d at CCP for twenty -seve n (27) y ear s, testified that she wa s the social

wo rk e r at CCP wh o ma na g e d Mo the r’ s c a se a nd pe rf orme d the se c on d e va lua

tio n in 20 04 . M of

fatt was not involved in the ca se fr om the beg inning a nd testified from r ecor ds about the eve nts that led to t h e remova l of the childre n from Mother, inc luding H.A .’s ing estion of bleac h and Mother dropping J .R.B. soon af

ter he was born.

Moffatt testified about the C CP’s evaluations of Mot her. She noted t hat t he first e valuation

reve aled that Mother

has borde rline intellige nce, and acknow ledg ed that this fac t alone did not prove that Mother wa s incapa

ble of being an adequate pare nt f or the children. Mother, howeve r, had othe r pr ob le ms that ne e de d to be re so lve d in or de r f or he r to p ro vid e a

sa fe ho me a ndbe c ome a n a de qu a te-9-

p ar e n t

. In a t e s t o f o v e r a l l f u n c t i o n i n g a d m i n i s t e r e d b y t h e C C P p s yc h o l o g i s t , M o t h e r s c o r e d a f o r t yfive (45) out of o n e h u n d re d (100). Though Mother denied a ny

violence in the home , there was substantial evidence to the contra ry . J .R.B.’s f

ather , who l i v ed wi t h Mother at the time of CCP ’s initial eva luation in 2000, admitted to a “whole rang e of ag g ressive sorts of behavior s” and told the CCP th a t he a ndMo the r “ la id h a nd s o n e a c h o the r w he n th e y g ot ang ry a t ea c h othe r. ” Mo ff a tt a lso

n o t e d t h a tJ

. R

. B

. w a s a

s p e c i a l n e e d s c h i l d , a n d h a d i s s u e s r e l a t e d t o a n g e r , a n x i e t y, a n d i m p u l s i v i t y. After the first eva luation, CCP made se vera l re co m m endations to help Mother de al with her pr ob lem s, incl ud ing the re c omm e nd a tio n th a t sh e c omp le te a pa re nti ng pr og ram, p art ic ipate in individual therapy , become independe nt, and deve lop a minimallyadequate level of protec tive and altruistic pare ntal functioning . CCP also rec ommended that Mother be require d to visit the childre n reg ularly and obtain stable housing and employ ment.
By th e s ec o n d evaluation in 2004, Moffatt said, Mother had attended some pa renting prog rams, but noted that some of the people who ha d been w orking with her re ported that Mother

“ ha d n ot c ha ng e d h e r b e ha vio r i n te rm s of le arn ing to i mpl e me nt the thi ng s th a t th e y we re try ing to teac h[; ] . .

. as fa

r as a ctually

chang ing he r beha vior, she had not done so. Moffatt said that Mother appar ently

had not learned to control he r ang er, acc ording to the reports of the Exchang e Club. Moffatt sa id that it was “diffic ult to believe anything that [Mot her] said,” beca use she cha ng ed her story about her situation during the interview. For example, Mother tol d a completely differ ent story
abo ut he r c hil dh oo d in the se c on d int e rv ie w than sh e did in the fi rs t. F urthe rm or e , s he tol d M of fatt during the sec ond evaluation that she had completed her RN deg ree and had decide d to g o to medical school, eve n though she had no t ev en re ce i v ed a high sc hool deg ree . Moffatt knew that the story

“ wa s ju st l ud ic ro us .” L a te r, Mo the r t olda dif fe re nt C CP ps y c ho log ist

that sh e plann e d o n g oin g to Certified Nur sing A ssistant school.

Mo ff a tt s tate d h e r

b e l i e f th at M o the r s e e me d in c apa

ble of de a lin g wi th J.R .B .’ s sp e c ia l ne e ds

. I n contra st, t h e fo s t er mother had re sear ched J.R.B.’s problems a nd had wor ked with the psy cholog ists at AGAPE to help her de al with J .R.B.’s spe cial nee ds. Moffatt said that, ba sed on Mother’s l ac k o f prog ress a nd continued diffic ulty pare nting the c hildren, CCP recommended termination of Mother’ s pare ntal rig hts. She further te stifi ed that she be lieved it to be in the children’ s best interest that Mother’ s pare ntal rig hts be terminated.

Ha l l i e C o h e n , t h e c l a s s f

a c i l i t a t o r a t t h e E xc h a n g e C l u b , a l s o t e s t i f i e d a t tr i a l

. C o h e n s a id that D CS ha d r e fe rred Mo th er to her a ng e r m a na g e me nt c la ss i n O c tob e r o f 2 00 3. B y that po int , Mother had misse d the first cla ss session and students are not ordinarily permitted to pick up the class. Neve rtheless, at the urging of Mot her’ s DCS case worke r, Cohen allowe d Mother to join the ang er ma nag ement cla ss. When Mother missed a s econd class, C ohen called her DCS casewor ker to let her know that Mother could not continue. Mother ’s DCS casew orker told Cohen that Mother had pre arr ang ed conf

licts a nd urg ed Cohen to a llow Mothe r to r emain in c lass. Cohen allowed he r to s ta y in the c la ss, bu t told Mo the r an d he r DCS c a se wo rk e r that sh e wo uldre c e ive on ly a c e rt if ic a te of attenda nce and not a certificate of completion. Mother ended up missing a total of three out of eig ht classes but attende d make- up sessions f or a portion of the missed classes. During the classes Mo the r atte nd e d, Coh e n d e sc ri be d M oth e r a s b e ing the re in b od y on ly , e xpla ini ng that Mo the r d id-10-

not speak, shar e, or othe rwise show that she had lea rned a ny thing, “ which i s re all y one of the require ments of the cla ss that y ou participate.”

As Mother had been told, at t he end of the ang er ma nag ement cour se, she r ece ived a letter

s t a t i n g w h i c h c l a s s e s s h e a t t e n d e d , b u t d i d n o t r e c e i v e a c e r t i f i c a t e o f c o m p l e t i o n

. S u b s e q u e n t l y, M o t h e r ’ s D C S c a s e w o rk e r a s k e d C o h e n t o s u m m ar i z e M o t h e r ’ s p ar t i c i p a t i o n i n t h e c l a s s e s

. In

re sp on se , in Janu ary

20 04 , Co he n w ro te a no the r l e tte r t o D CS. It no te d th a t, wh e n Mo the r c a me to class on the f

irst day , one of the staff me mbers re cog nized her as ha ving be en aske d to leave the pa re nti ng c la sse s and ne ve r re turn. Coh e n sai d tha t Moth e r wa s not an a c tiv e pa rt ic ipant, a ndthi s
cause d Cohen to ask Mother if the re w as a pr oblem. Mother’s r esponse to C ohen was that she wa s not comfortable in gr oups. Whe n C o h en re minded Mother that she w ould not ge t a ce rtificate of completion, Cohen said, Mother became arg umentative, upset, and “ver bally ag g ressive.” Ba sed on Mother’s c ontinued verba lly ag g ressive be havior, Cohen c oncluded that Mother did not benef

it from the ang er ma nag ement cla sses and “ she did not d em o n s t ra t e the g rasp of ang er ma nag ement
conce pts.”

Th e tr ia l c ou rt

a lso he ardte sti mon y

fr om G e or g e Ko hlb a c he r ( “ Ko hlb a c he r” ), a famil y pr e se rv a tio n c ou ns e lor

a t A GA PE. I n N ov e mbe r 20 04 , Kohl ba c he r w a s a ssi g ne d to wo rk wi th M o t h e r t o m e e tt h e g o a l s o f

h e r p e r m a n e n c y

p l a n a n d tr y

t o r e u n i f y M o t h e r w i t h h e r c h i l d r e n

. In

acc ordanc e with t he permanenc y plan, Kohlbacher took Mother for a drug scre en, which turned out

n ega t i v e

. He al s o v i s i t ed M o t h er ’s h o m e a n d wa s s at i s fi ed t h at s h e h ad s af e a n d s t ab l e h o u s i n g. Neve rtheless, de spite the fac t that Mother appa rently achie ved the g oals of re maining dr ug -fr ee and having stable housing , Kohlbache r wa s o f t h e opini on that other re quirements of the perma nency plan had not bee n met. Kohlbache r re fer red Mother

to t h e co u n s el ing de partment at AGAPE for help with ang er ma nag ement issues, but she attended onl y two out of four sessions. The c ounselor at AGAPE wa s u n ab le to h e lp M o th e r b e c a u s e M o th e r w a s in d e n ia l th a t s h e h a d a n ang er manage ment problem. Mother a lso worked with an ang er ma nag ement counse lor at Mississippi Boule vard Christi an Church, but that c ounselor also ultimately ref used to see Mothe r bec ause of Mother’s denial and lack of i nsight. Theref ore, K ohlbache r testified, Mother did not complete any ang er ma nag ement prog ram. Kohlbache r also attempted to g et M other int o pare nting classes. He

was una ble to g et Mother into the Ex chang e Club pa renting classes beca

use of he r pre vious history there ; he ref

err ed her to Missi ssippi Boulevar d for pa renting classes, but she did not complete the pr og ram th e re . A GA PE h a d n o p are nti ng c la ss a va ila ble whi le Koh lb a c he r w a s w or kin g wi th Mo the r. Th e re fo re , K oh lba c he r s a id, Mo the r c omp le te d n o c ou rse of pa re nti ng c la sse s. Ov e ra ll, Kohlbache r wa s of the opinion that Mother did not succe ssfully complete the g oals of her pare nting plan.

Mother’s DCS ca se mana g er since J une 2004, Keva Perry (“Per ry ”), te stified at trial. Perry
sa id that, o n s e ve ra l oc c a sio ns , D CS e xpla ine d to Mo the r w hat sh e ne e de d to do in or de r t o r e g a in custody of her children, a nd that these re quirements we re se t out in the perm an en cy p l an s . Perry te sti fi e d a bo ut the g oa ls o f e a c h p e rm a ne nc y plan, a s o utl ine d ab ov e , an d note d tha t the re qu ir e me nts of all of the pla ns were essentially the same.-11-

Perry also testified that Mother did not complete all of the re quirements of the perma nency plans. Perry acknow ledg ed that Mother’ s drug test in 2000 was neg ative and that she had no re ason to believe that Mother

was using drug s. Howeve r, Mot her did not complete any prog ram of ang er manag ement or pa

renting classes. A lthough DCS ref err ed Mother to thre e diffe rent a g encie s — the Fr ay ser F amily

Counse li n g Ce n ter , th eU n iv e r s ity of Tenne ssee B olin Center, and the E x chang e Club — Mother wa s kicked out of the Fray ser F amily Counseling Cente r, did not g rasp the conce pts or complete a ny

of the other

prog rams, and f

ailed to demonstrate t h at s h e bene fitted from a ny of the prog rams she attended.
Mother’s visitation beg an in 2000, and she was re quired to have supervised visitation four (4) hour s eac h month. Perry char acte rized Mother’s visit at i o n as spora dic, and sa id that the visitation hours were r educe d beca use Mother d i d n o t comply with visit ation and bec ause the

c hil dr e n b e c a me dis tr a ug ht andup se t after e a c h v isi t. A ft e r M oth e r’ s v isi ta tio n w a s r e ins ta te d in J uly 2004, it was ag ain sporadic

. Consequently , in September 2004, DCS beg an to re quire Mother to c a ll thr e e ho ur s bef

or e e a c h visi t to c on fi rm wh e the r or no t she wo uld a tte nd the vis it. At fi rs t, if Mother did not ca ll, the children wer e broug ht to the visit assuming that Mother would attend. O n two occa sions, Mother did not call, the childre n wer e broug ht to the visit , but Mother neve r showed up . A ft e r that, DC S sto pp e d b ri ng ing the c hil dr e n to the vis its un le ss M oth e r c a lle d th re e ho ur s in advanc e to conf

irm that she would come. Be cause transportation was a n issue for Mother , DCS took her to visit the children on sever al occa sions, a nd on other occa sions it found transportation for her throug h Omni, a transportation service . When Mother was pr ovided transportation, s he attende d visits m ore of

ten. Perry estimated that, overall, since J une 2004 when she beca me the ca se mana g er, Mother kept less than 50% of her visits.
Perry described the childre n’s visits with M other. She said that, at t heir visi ts, J .R.B. did not

e mbr a c e Mo the r, bu t H .A . b on de d wi th Mo the r a nd wo uld e mbr a c e he r. Mo the r h a d g ive n b irth t o another child, a daug hter, whom she br oug ht with her on visits with t he childre n. H.A. embr ace d the child, but J .R.B. did not acknow ledg e her . During the visits, Perry said, the childre n wer e violent wi th e a c h o the r, a ndMo the r j us t sat ba c k a nd ob se rv e d, fo rc ing the su pe rv iso r t o in te rv e ne a nda sk the children to stop fig hting. Perry said that the children “ had nothing g ood to say about the visits.”

Pe rry a lso te sti fi e d abo ut the c hil dr e n’ s sit uatio n in the ir

fo ste r f a mil y . Sh e sa id, du ri ng the ir y e ars in f os te r c are , t he chil dr e n h a ve bo nd e d w ith the ir fo ste r p are nts , a ndthat th e y are a we llrounded f amily . I n addition to H.A. and J.R .B, the foster f amily has two y oung er biolog ical childre n. Pe rry te sti fi e d th a t H .A . a ndJ.R.B . r e fe r t o th e ir fo ste r p are nts a s “mo m andda d, ” a ndre fe r t o Mother as “ Michelle” when she is not present. I n Mother’s pr esenc e, h o we ver, she demands that the y re fe r t o h e r a s “ mom .” Ov e ra ll, Pe rry c on c lud e d, it w ou ld b e in the c hil dr e n’ s bes t in te re st t o te rm inate Mo the r’ s p are nta l r ig hts

.
Mother testified at trial on her own be half. S h e stated that she lives in a three -bedr oom apartment with her y oung est daug hter, who was one y ear old at the time of trial. Mother stated that sh e ha s a fo urth c hil d, a

so n. Mo the r e xpla ine d th a t sh e ha d vo lun tari ly g ive n c us tod y of thi s c hil d to a non-re lative one y ear prior to trial bec ause she was homele ss for a c oup l e o f m o n t h s. At the-12-

time of trial, Mother wa s involved in leg al proc ee d i n gs to reg ain custody of this child, and she ind ic a te d th a t th e c ou rt inv olv e d in tho se pr oc e e din g s h a d a lr e a dy de c ide d to g ive c us tod y

ba c k to her.
At the time of trial, Mot her was unemploy ed but try ing to find a job. She acknow ledg ed that she had not g raduated from h i gh s ch o o l, but claimed that she wa s working on her G ED. Mother testified that, in the past, she ha d worke d as a s ec re t ary for a y outh prog ram, a nd at the air port assisting pe ople who ar e disabled. Mother stated t h at s he re ceive s $142 per month in AFD C benef its. W hen aske d how she intende d to support herse l f an d her c hildren, Mother c laimed that J .R.B.’s f ather , H.A.’s fathe r, and their families would support her until she could maintain a stea dy job.
Mother said that DCS’s only visits t o her home wer e on Oc tober 28 a nd November 5, 1999. At those times, she said that she wa s not give n any instructions. Mother maintained that ther e wa s

“ ple nty of fo od ” in the ho me wh e n D CS vi sit e d. Re g ard ing a lle g a tio ns that sh e le ft H. A. a lon e in the home, Mother c laimed that it happene d o n o n l yone occ asion, on Octobe r 28, 1999. She

e xpla ine d th a t sh e ha d g on e do wn sta ir s to he r n e ig hb or ’s ho me to use the te le ph on e be c a us e sh e did not have one . No one wa s home, and whe n she wa s came back upsta irs the DCS repre sentative wa s the r e t o d i s c u s s w i t h h e r

t h e i n c i d e n ti n w h i c h H

. A

. i n g e s t e d b l e a c h

. M o t h e r s a i d t h a tt h e D CS repr esentative g ave he r no instructions on that day

. The ne x t time DCS came to her home w as on November

5, 1999, when they

took custody of H.A. She said that no one inspected he r home at that t i m e. M o t h erm ai n t ai n ed t h at , al t h o u gh s h e h ad n o s o ck et co v er s , H. A. h ad b ee n tra i n ed n o tt o go
near the outlets.

Mother said that her visits with the children went “ve ry well” up until visitation was stopped in J anuary

2004 by th e J u v en i l e Court. Mother testified that the visits were stopped be cause of alleg ations by

the foster mother that Mother w as “a rac ist and [she] was teaching them to hate her beca use she wa s white and they wer e blac k.” When the visits re sumed in J uly 2004, Mother stated, things were not the s ame. J .R.B. acted out, not only with her but with eve ry one. Prior to J anuary 2004, Mother asse rted, she ha d only missed “three or four” scheduled vi sits with the children. She

sa id that sh e mis se d vis its on ly wh e n sh e ha d a do c tor ’s app oin tme nt b e c a us e sh e wa s p re g na nt w ith tw ins . A ft e r v isi ts w e re re su me d in July 20 04 up un ti l th e tim e of tr ia l, M oth e r s a id that sh e on ly mis se d th re e vis its

.
Re fe rring to J.R.B .’ s fathe r, Mo the r sa id that the c hil dr e n ha d a ve ry g oo d r e la tio ns hip wi th “their” fathe r. She said that he had moved away to ta ke car e of his mother. Mother acknow ledg ed that H .A .’ s f

a the r w a s n ot s up po rt ive , bu t sa id that hi s f a mil y pr ov ide d “ g re a t su pp ort.” On c ro ss
e xami natio n, Mo the r a dmi tte d th a t J.R. B .’ s f a the r ha d n ot v isi te d th e c hil dr e n in on e or tw o y e ars

. She fu rthe r a dmi tte d th a t ne ith e r H .A .’ s f a the r n or his famil y

ha d e ve r g ive n h e r f

inanc ia l su pp ort. When she was homeless, they did not take her in because she did not tell them that she wa s without a home. F urthermor e, they did not k n o w unt il March 2002 that Mother had lost custody

of the children.-13-

Mother wa s asked a

bout her compliance with the DCS pe rmane ncy plans. She said that she ha d c omp lie d b y

a tt end ing pa

re nti ng c la sse s tw ic e a ndby a tte nd ing a n a ng e r m a na g e me nt c la ss. Mother noted that she took classes at the Ex chang e Club in 2000, but ex plained that she w as kicke d out because she wa s not comfortable being in or t alking in gr oup settings. Mother said that she later went to Mississi ppi Bouleva rd Christian C h u rch, but c laimed that they did not offer

either a ng er manag ement counse ling or pare nting c lasses. S h e testified that the r epre sentative at Missi ssippi B ou le va rdtol d h e r that sh e “ did n’ t se e ho w s he c ou ld h e lp. B ut I didatte nda

c ou ple of

se ssi on s. I never missed a session.” Mother introduced into evide nce a letter dated M ay 13, 2005, from HopeWorks, a c are er a nd persona l development org anization, indic at i n g t h at she ha d been pa rt ic ipatin g in c are e r d e ve lop me nt p ro g rams thr ou g h th a t or g a nizatio n. Th e le tte r i nd ic a te d th a t, du ri ng the fa ll o f 20 03 , M oth e r h a d atte nd e d e a c h d a y , M on da y thr ou g h Fri da y

fr om 9 :00 a .m. throug h 4:00 p.m. , an d that she had me t the attendanc e and pa rticipation requir ements of the pr og ram.

Mother also stated that s h e complied with the permanenc y plans by participating in the require d evaluations a nd noted that she had no rec ord of drug abuse. She claimed that sh e never
us e d d ru g s w he n s he wa s pre g na nt with an y of he r ch ild re n. She tho ug ht that he r p os iti ve te st r e su lt in 1999 must have bee n cause d by a mix up betwee n her sa mple and the sa mple from J.R .B.’ s father , taken at the same time.

When asked how she would provide for the children’ s education if the y wer e to live with her, Mo the r s ta te d th a t a

bu s c ou ld t

rans po rt the m to the ne arb y pu bli c sc ho ol. She sa id that sh e c ou ld take the bus to g o any

other plac es she ne eded to g o. She testified that their medica l car e would be

cover ed by

her insura nce, O mni Care. Mother w as aw arethat, in their foster family , the childre n had been involved in e x trac urricula r ac tiviti es. She testified that if the children came to live w ith her, the y c ou ld b e inv olv e d in af

te r- sc ho ol pr og rams at a c hu rc h ne ar he r h ome . A sk e d w hat sh e c ou ld offe r the c hildren, Mother te stified that they should be with her be cause she is their natura l mother and bec ause the y

neede d to know their y oung er sibling s.

Mother asse rted that she did not re fuse to do anything that wa s reque sted of her by DCS, and that there was nothing she would not do in order to ge t her c hildren bac k. Mother ac knowledg ed that she had he r childre n when she was ve ry y oung , and that she was not the best par ent, but said that she also was not a ba d pare nt. She believed that she could provide a saf e home f or the c hildren, and that it was in their best intere st to li ve with her

.
At the conclusion of trial, the tria l court held that DCS had ca rried its burde n of proving by clea r and c onvincing evidenc e that Mother’ s pare ntal righ t s s h o u l d be terminated base d on the g rounds of (1) substantial non-complianc e with the permanenc y plans and (2) the per sistency of the conditions which led t o t h e re m o v al of the c hildren. The trial court further he ld that it was in the children’ s best i n t er es t t o t erminate Mother’s pa renta l rig hts. On J une 24, 2005, the tria l court enter ed an or der c onsistent with it s oral ruling . I n rea ching its conclusion, t he trial c ourt made the fo llo wi ng fi nd ing s o f f

a c t:-14-

(1 ) T hat th e Pe tit ion e r ha s pro vid e d cle ar an d c on vin c ing pr oo f o f the a lle g a tio ns in the petit ion, to wit, that pursuant to T.C.A. 36-1-113( g )(2) there has bee n substantial

no nc omp lia nc e by

the Re sp on de nt p are nts wi th the state me nt o f r e sp on sib ili tie s in the permanenc y

plans pursuant t o p rovisions of title 37, chapter 2, part 4, a nd, pu rs ua nt t o T .C. A. 36 -1 -1 13 (g )( 3) (A ) the c h i l dr e nh a ve be e n r e mov e d f ro m th e ho me of the pa rent or g uardia n by

order of a c ourt for a period of six (6) months and (i) the

c on dit ion s w hic h le d to the re mov a l of the c hil dr e n or oth e r c on dit ion s w hic h in a ll

rea sonable proba

bilitywould cause the childre n to be subjected to further a buse or

ne g le c t a ndwh ic h, ther e fo re , p re ve nt the c hil dr e n’ s sa fe re turn to the pa re nt s til l pe rs ist , ( ii) the re is l itt le lik e lih oo d th a t th e se c on dit ion s w ill be re me die d at a n e arl y date so that the c hildren ca n be safe ly returne d to the pare nts in the near f uture, a nd (i ii) the c on tin uatio n o f the pa re nt o r g ua

rd ia n an d ch ildre la tio ns hip g re a tly diminis hes the c hildren’s c hance s of ea rly inte gra t i o n into a safe , stable and perma nent home. * * * (4) The Court further

finds that the childre n have be en plac ed by the Depa rtment of Children’s Service s in a foster home that is safe a nd nurturing and that the childre n
are do ing we ll i n th a t pl a c e me nt. (5) The Court further

finds that [Mot her] has fa iled in her personal responsibilit y as
a pare nt in that she provided no e vidence that she complied, e ven minimally , with the g oals of t h e p er m an en cyp l an s

. S p ec i fi ca l l y , t h e t es t i m o n y o f S u s an M o ff

at t , l i ce n s ed Social Worker for the L eB onheur Cente r for Children and Pare nts testified that [Mot her] is unable to contr o l h er anger , she lies, foc uses on her self rather than he r
c h i l d r e n , a n d m a i n t a i n s a

h o m e t h a t i s u n s a f

e f o r c h i l d r e n

. M s

. M o f

f a t t , a c c o r d i n g l y,
re c omm e nd e d te rm inatio n o f [M oth e r’ s] pa re nta l r ig hts

. (6 ) Th e Cou rt fu rthe r fi nd s tha t the De pa rt me nt of Chi ldr e n’ s Se rv ic e s a tte mpt e d to p ro v i d e a n germ an age m en ts e r v i c e s an d p ar en t i n g cl as s es t h ro u gh t h e E x ch an ge Center. Ha llie Cohen testified that [Mot her] failed to appear and to participate and was allowed to rema in in classes because DCS urg ed the Ex chang e Center to acc ept her a s a spec ial favor

to t h e agenc y . [Mot her] failed to e arn a certificate of completion and re ceive d, rathe r, a le tter deta iling her attendanc e. (7 ) T he Cou rt

fu rthe r f i n d s th a t G e or g e Ko hlb a c he r, a F a mil y Pr e se rv a tio n Sp e c ia lis t, tr ie d to g e t [Mo the r] t o p art ic ipate in ang e r m a na g e me nt andpa re nti ng c la sse s b ut t o no avail. [Mother] failed to follow the re commendation that she se e Willi e Holcomb, Aga p e F am i l y

S er v i ce s C o u n s el o r, fo r c o u n s el i n g. (8) The court fu rt h er f

inds that [ DCS] provided six parenting plans for [H.A.] and fi ve pa re nti ng plans fo r [J.R. B .]. [M oth e r] c omp lie d w ithno ne of the m. (9) The Court finds the evidenc e in t h i s ca s e t o be over whelming ly clea r and convi n cing. [Mother] has taken no responsibility toward e arning the re turn of her

c hil dr e n. Th e Cou rt

fi nd s th a t it

wo uldbe un c on sc ion able to r e turn th e c hil dr e n to [Mot her]. The children are place d in a g ood (foster car e) e nvironment in which they

are doing w ell. There is no relationship between [Mother] and the children. Further, [Mot her] only

g ives excuses for he r total lack of responsibility

.Sur pri s i ng l y , t he bri ef f i l ed by M ot her ’ s at t orn ey as s er t s t hat “ t her e wa s no f i ndi ng t hat t he condi t i ons wh i ch 5
le d to the re m o v a l o r o the r c o n d iti o n s w h ic h in a ll re a so n a b le p ro b a b ili ty wo u ld c a u se the c h ild re n to b e su b je c te d to f urt her abuse o r negl ect st i l l p ers i st s.

. . .” C l earl y ther e was such a f i nd i ng i n pa ragraph (1) o f t he t ri al co urt ’ s o rder. N evert hel ess , si nce M o t her as ser t s o n ap p eal t hat ground s fo r t erm i nat i o n were not prove d , we wi l l co nsi d er t hat t he i ss ue
o f p e rs isten t co n d iti o n s w a s ra ise d o n a p p e a l as w e ll.
-15- (10) F urther, the Court finds that [ DCS] went over and bey ond what the law require s
w ith r e s p e c t t o p r o v id in g r e a s o n ab le e f f o r ts to a s s is t [ M o th e r ].

Mother now a

ppeals the tria l court’s de cision.
On appe al, Mother a

rg ues that DCS did n o t p ro v e byclea r and c onvincing evidenc e the g rounds for te rmination of her pare ntal rig hts. She arg ues as we ll that there wa s n o t cl ear and

c on vin c ing e vid e nc e that te rm inatio n o f h e r p are nta l r ig hts wa s in the c hil dr e n’ s b e st i nte re st.

I n T e nn e sse e , p ro c e e din g s to te rm inate pa re nta l r ig hts are g ov e rn e d by st a tut e . A pa rt y seeking to terminate pa

renta l rig hts must prove two elements. First, the petitioner must prove the exis tence of at lea st one of the statutory g rounds for te rmination. T.C.A. § 36-1-113(c )(1) (2005); In re D. L. B. , 1 18 S.W. 3d36 0, 36 7 ( Te nn . 2 00 3) ; Jo ne s v . G ar re tt , 92 S.W

. 3 d 835, 838 (Tenn. 2002). Second, the petitioner must prove that terminating the pa rent’s pa renta l rig hts is in t he child’s be st int e re st. T. C.A

. § 36 -1 -1 13 (c)(2 ) (2 00 5) ; In re A.W

. , 114 S.W .3d 541, 544 (Tenn. Ct. App. 20 03 ); In re C.W

.W

. , 3 7 S.W. 3d 46 7, 47 5- 76 (T e nn . Ct . A pp . 2 00 0) . T he statut e re qu ir e s th a t bo th of these e lements be proven by clea r and convinc ing e vidence

. In re V ale ntine , 79 S.W .3d 539, 546 (Tenn. 2002)

.
Be cause of t he heig htened bur den of pr oof re quired in termination proc eeding s, our customary standard of revie w must be adapte d in suc h case s. Under Rule 13(d) of th e T en n es s ee Rules of Appellate Procedur e, i n termination proce eding s as well as othe r proc eeding s, the trial court’s findings of fac t are revie wed de novo upon the re cord, pr esuming those finding s to be corr ect unless the evidenc e pre ponderates otherwise. Tenn. R. App. P. 13(d). How ever , we must “dra w a distinction betwee n specific fac ts and the combined weight of these fa cts.” In re Audr e y S. , 182 S.W. 3d83 8, 86 1 n .2 6 ( Te nn . Ct . A pp . 2 00 5) . Wh ile we pr e su me th at th e tr ia l c ou rt ’s sp e c if ic finding s of fa ct ar e cor

rec t, so long a s they

are supported by

a pre pondera nce of

the evidenc e, we “must then determ i n e whether the combined we ight of

these fa cts provides c lear and convinc ing evidenc e supporting the trial court’s ultimate fac tual conclusion.” Id. Gr e a t we ig ht is a ff or de d to the trial cour t ’s cr edibi litydeterminations; t hose dete rminations are not reve rsed a bsent clea

r evidenc e to the contr ary

. See Jones , 92 S.W .3d at 828.

Mother first a

rg ues that the State did not prove by clea r and c onvincing evidenc e that she had not substantially complied with the perma nency plans. She arg ues that the e vidence showed that 5 sh e su bs ta nti a lly

c omp lie d wi th th e goa ls o f the plans . M oth e r c ite s K oh lba c he r’ s te sti mon y , in wh ic h he c on fi rm e d tha t Moth e r’ s dru g sc re e ns re su lts we re ne g a tiv e a ndsh e ha d maint a ine d s ta ble housing. H e fu rther te stified, Mother points out, that he did not investigate why Mother had not

c omp leted th e a ng e r m a na g e me nt p ro g ram, e ve n th ou g h h e wa s a wa re that sh e a tte nd e d s ome-16-

c la sse s. F urthe r, Ko hlb a c he r ad mit te d th a t no c la sse s w e re be ing of fe re d b y AG APE , s o M oth e r d id not have the option of attending classes the re. O vera ll, Mother arg ues, the e vidence shows that she

su bs ta nti a lly

c omp lie d w ith the re qu ir e me nts of theplans

.
Parenta l rig hts may be terminated based upon a finding of clea r and c onvincing evidenc e that a par ent is in “substantial noncompliance

. . . with the s tatement of responsibiliti es in a pe rmane ncy plan or plan of care.” T.C.A. § 36-1-113( g )(2) (2005). This Court has re cog nized that section 36-1- 113(g )(2) does not requir e c om ple te compliance with the DCS permanenc y plans; rather , it requires

o n l y substantial compliance

. See In re T.L. , No. E2004-02615- COA-R3-PT, 2005 WL 2860202, at *11 (Te nn. Ct. App. Oct. 31, 2005) (c oncluding that fulfillment of six of the ei gh t go als of the perma nency

plans constituted substantial compliance) . To as s es s a parent’s c ompliance with a perma nency

plan, the court must we igh “both the deg ree of noncomplianc e and the weig ht assigne d to that particular

require ment.” In re Z. J. S. , No. M 2002-02235-COA- R3-J V, 2003 W L 21266854, at * 1 2 (T en n

. C t

. Ap p

. J u n e 3 , 2 0 0 3 ). T h e p er m an en cy p l an s ar e n o t j u s t a s er i es o f h o o p s t h ro u gh wh ic h a bio log ic a l pa

re nt mus t ju mp. Th e pa

re nt mus t ma

ke a me a nin g fu l e ff

ort to pla c e him se lf or her self in a position to adequately car e for the child. In re C.S. , J

r. , No. M2005-02499-COA- R3- PT, 2006 W L

2644371, at *10 (Te nn. Ct. App. Sept. 14, 2006).

I n this case, these children w ere taken into protec tive custody by DCS under c ircumstance s which, while c ause f

or conc ern, w ere less alarming than the ci rc umstances whic h usually prompt such ac tion. I ndeed, c omments by DCS personne l and hospi tal personne l seem to indicate that much of the c oncern was c aused not by H.A. being left alone twice or by J .R.B. being dropped, but more by the per ception that Mother w as “slow” or “immature ” or “ out of it.” Neve rtheless, there was no appea l of the Juvenile Court’s determination that the childre n wer e depe ndent and ne g lected.

Once the childre n wer e take n into DCS custody , DCS was obligated to evaluate Mother’ s pare ntal functioning and abilities, and to d ev el o p perma nency plans to ensure that returning the children to he r ca

re w ould not result in neg lect or a buse. Ther e is no arg ument on appea l that the require ments of the permanenc y plans wer e n o t reasonably related to the g oal of a ddressing rea l issues reg arding Mother’s pa renting skills, ange r mana g ement, and a bility to support herself

and four children.

The e valuations of Mother resulted in f indings of traits which, while related to he r abilities to pare nt, are somewhat intrac table, such a s Mot h er ’s border line I .Q., low func tioning leve l, and

s i gn i fi ca n tp er s o n al i t y

d i s o rd er s

. An y

o n e o f t h es e c h ar ac t er i s t i cs wo u l d b e as i gn i fi ca n tch al l en ge and would re quire substantial support in other a rea s which lend themselve s to trainin g or reha bilitation, s uch as pa

renting skills or job training

. All of t hese chara cteristics togethe r pre sent a daunting challeng e indee d.M an y of t he rep o rts i n the re co rd i nd i ca t e that M o t he r wa s wa ry of D C S an d unc o o p era t i ve wit h it s p ro ce sses, 6

p erhap s st e m m ing f

rom her r ep o rt ed ba ckground of ab use whi l e she was i n fo st er care as a chi l d

. R egard l ess of t he

re a so n , t h e re p e tit ive re q u ire m e n ts o f t h e m u lti p le p e rm a n e n c y p la n s a p p a re n tly w e re th e r e su lt o f M o the r’s failu re to f ul l y co o p erat e and t o ab sorb t he i nfo rma t i o n t aught i n t he cl ass es and t rai ni ng.
-17- I n Mother’s case, for whatever rea son, she failed to meaning fully participate in the training that was off

ere d to her. Whil e Mother attended some pare nting c lasses, she a ppare ntly did not put 6 to use the skills that were taug ht, and she de monstrated a f ailure to g rasp ba sic pare nting skills. She participated in the CCP evaluations, but di d not obtain the rec ommended intensive follow- up counseling . Mother attende d some ang er ma nag ement cla sses, but failed to participate, de nied that she had a problem, continued to a ct i n a verbally ag g ressive manner, and ultimately was ba rre d from returning to the Ex chang e Clu b

. S he attende d a job training course throug h HopeWorks in 2003, but two y ear s later r emained totally depende nt on public a ssistance. Thus, while Mother in fa ct had

sa fe a ndsta

ble ho us ing a ndre ma ine d dru g fr e e , the re re ma ine d seriou s impe dim e nts to h e r a bil ity to adequately

pare nt her c hildren.

Under all of these c ircumstance s, we ag ree with the t rial court that the evidenc e esta blished clea rly and convinc ingly

that Mother has not c omplied substantiallywith the require ments of the perma nency

plan, and that he r par ental r i ghts may be terminated upon this gr ound. See DCS v. A.B .B. , No. E2004-01306- C OA -R 3 -P T , 2005 WL 74101, at *2 (Te nn. Ct. App. J an. 13, 2005) (dete rmining that the mother had not substantially complied wit h the permanenc y plan when she had complied wit h some require ments but failed to complete the “ke y ” re quirement of c ompleting a drug treatment prog ram). F or the same reas ons, we a lso ag ree that the State established by clea r and convincingevidenc e g rounds fo r t er m i n at i o n u n d erT en n es s ee C o d e A n n o t at ed § 3 6 -1 -1 1 3 (g) (3 )( A), that is, persistent conditions which in all re as o n able pr obability would cause the childre n to be subject to furthe r abuse or neg lect if they wer e re turned to the c ustody of Mother.

Mother also a

rg ues that the trial c ourt err ed in determining that termination of her pare ntal rig hts was in the childre n’s best intere st. I n order to make this det er m i n at i o n, the trial court was
re q u i re d t o co n s i d eral l re l ev an tfa ct o rs , i n cl u d i n g t h e f o l l o wi n g:
(1) Whether

the par ent or gua

rdian ha s made such an adjustment of circ umstance, conduct, or

conditions as to ma

ke it safe and in the child’s be st interest to be in the home of the pa

rent or g uardia n; (2) Whether

the par ent or g uardia n has fa il ed to ef fec t a lasting adjustment after

rea sonable e fforts by

available social ser vices a g encie s for such duration of time that lasting a djustment does not reasona bly appea r possible; (3) Whether

the par ent or g uardia n has maintained r eg ular visitation or other c ontact with the child; (4) Whether

a mea ningf

ul rel ati onship has otherwise be en esta blished betwee n the pare nt or g uardia n and the c hild; (5) The eff

ect a chang e of car etake rs and phy sical environment is likely to have on the child’s emotional, psy cholog ical and me dical condition;-18-

(6) Whether

the par ent or g uardi an , o r o t h er pe rson re siding with the pa rent or g uardia n, has shown brutality , phy sical, sexual, emotional or psy cholog ical abuse , or neg lect towar d the child, or a nother c hild or adult in the family or household; (7) Whether

the phy sical environme nt of the par ent’s or g uardia n’s home is hea lthy

a ndsa fe , w he the r the re is c ri min a l ac tiv ity in the ho me , or wh e the r the re is s uc h u se of a lc oh ol or c on tr oll e d s ub sta nc e s a s may re nd e r the pa

re nt o r g ua

rd ia n c on sis te ntl y unable to ca

re f or the c hild in a safe and stable manne r; (8) Whether

the p ar en t ’s or g uardia n’s mental and/or emotional status would be detrimental to the child or prevent t he par ent or g uardia n from ef fec tively providing safe and stable c are and super vision for the child; or (9 ) Wh e the r the pa

re nt o r g ua

rd ia n ha s pai d ch ild su pp ort con sis te nt with the c hil d support g uidelines promulg ated by the depa rtment pursuant to § 36-5- 101.
T.C.A. § 36-1-113( i) (2005).

Mother ar g ues that the a

pplication of these f

actor s weig h in her fa vor bec ause the children

are prese ntly

living in O live Br anch, Mississ ippi with a couple of a diffe rent e thnic backg round fr om the c hil dr e n. She c la ims that th e e vid e nc e e sta bli sh e d th a t sh e int e ra c ts w e ll w ith H. A. du ri ng the ir brief visits. I t i s n o t s u rp rising, Mothe r notes, that the c hildren ar e more bonded with the foster mother t han with her, because t he children have lived w ith the foster pa rents since they

wer e very y ou ng , a nd so thi s f

a c t do e s n ot e sta

bli sh that th e c hil dr e n a

re be tte r o ff

wi tho ut M oth e r i n th e ir

liv e s. To the contrary , the evidence establishes clea rly that allowing the children to rema in in limbo in foster c are weig hs heavily on them, and that the continued vis its with Mother are upsetting and destabilizi ng to the m. J .R.B., a specia l ne eds child, is e specia lly vulnera ble to the unce rtainty

and anxietyassociate d with being in an unsettled fa milysituation. The children ha ve thrived in the c are of the ir fo ste r p are nts , a ndte rm inatin g Mo the r’ s p are nta l r ig hts so a s to make the c hil dr e n a va ila ble for a doption would pro v i d e t h em a permanent and sta ble home. Unde r these c ircumstance s, we aff irm the trial court’s conclusion that cle ar an d convincing evidenc e esta blishes that terminating Mother’s pa

renta l rig hts is in t he childre n’s best intere st.

The d ec i s i o n o f the trial court is affirmed. Costs on appe al ar e to be taxed to Appellant Michelle Ada ir and he r sure ty , for whic h execution may issue, if nec essary

.

___________________________________ HOLL Y M. KI RBY, JUDGE