1

FILED

February 5, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF APPEALS OF TENNESSEE

STATE OF TENNESSEE ) C/A NO. 03A01-9706-JV-00224

DEPARTMENT OF CHILDREN’S SERVICES, )

)

Petitioner-Appellee, )

)

)

v. )

)

) APPEAL AS OF RIGHT FROM THE

) HAMILTON COUNTY JUVENILE COURT

ANNA PATRICIA MALONE, )

)

Respondent-Appellant. )

)

)

)

IN THE MATTER OF: )

WILLARD FILLMORE REDNOWER ) HONORABLE SUZANNE BAILEY,

JESSIE MAE REDNOWER ) JUDGE

For Appellant For Appellee

DOROTHY M. RAY JOHN KNOX WALKUP

Buck & Ray, PLLC Attorney General & Reporter

Chattanooga, Tennessee

DOUGLAS EARL DIMOND

Assistant Attorney General

General Civil Division

Nashville, Tennessee

O P I N I O N

AFFIRMED AND REMANDED Susano, J.
1

The parental rights of the children’s father, Paul Rednower, were

terminated in 1993. There was no appeal from that earlier judgment.

2

While the appellant refers to this code section, it is clear from her

brief that she is actually relying on the provisions of T.C.A. § 36-1-113. 

These provisions were formerly found at T.C.A. § 37-1-147.

3

The pertinent provisions of T.C.A. § 36-1-113 are as follows:

(g) Termination of parental or guardianship rights may

be based upon any of the following grounds:

* * *

(2) There has been substantial noncompliance by the

parent or guardian with the statement of

responsibilities in a permanency plan or a plan of

care pursuant to the provisions of title 37, chapter

2, part 4;

(3)(A) The child has been removed from the home of the

parent or guardian by order of a court for a period of

six (6) months and:

(i) The conditions which led to the child’s removal or

other conditions which in all reasonable probability

would cause the child to be subjected to further abuse

or neglect and which, therefore, prevent the child’s

2

The trial court’s judgment terminated the parental rights

of Anna Patricia Malone (“Mother”) in and to her children, Willard

Fillmore Rednower (DOB: October 1, 1983) and Jessie Mae Rednower

(DOB: September 15, 1985).1 She appealed, arguing, in her words,

that the Department of Children’s Services (“DCS”) “failed to make

reasonable efforts to reunite the family as required by T.C.A. [§]

37-1-166"; that the court erred in finding clear and convincing

evidence of Mother’s “substantial noncompliance” with a plan of

care formulated by DCS pursuant to T.C.A. § 37-2-403; and that the

court erred in finding clear and convincing evidence of a basis for

terminating Mother’s parental rights under T.C.A. § 37-1-147.2

Following a bench trial, the court entered a judgment

finding clear and convincing evidence to support its conclusion

that termination of Mother’s parental rights was justified under

two of the bases for termination set forth in the Code: T.C.A. §

36-1-113(g)(2) and T.C.A. § 36-1-113(g)(3)(A)(i)-(iii).3 In this
return to the care of the parent(s) or guardian(s),

still persist;

(ii) There is little likelihood that these conditions

will be remedied at an early date so that the child

can be returned to the parent(s) or guardian(s) in the

near future; and

(iii) The continuation of the parent or guardian and

child relationship greatly diminishes the child’s

chances of early integration into a stable and

permanent home.

3

non-jury case, our review is de novo upon the record of the

proceedings below; but the record comes to us with a presumption of

correctness as to the factual findings that we must honor “unless

the preponderance of the evidence is otherwise.” Rule 13(d),

T.R.A.P. “The scope of review for questions of law is de novo upon

the record of the [trial court] with no presumption of

correctness.” Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn.

1997).

While it is clear that a parent has a fundamental right

to the care, custody and control of his or her child, see Stanley

v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), it

is likewise clear that this right is not absolute. It may be

terminated if there is clear and convincing evidence justifying

such termination under the applicable statute. Santosky v. Kramer,

455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

Mother first argues, in the words of the pertinent

statute, that DCS did not make reasonable efforts to “[m]ake it

possible for the child to return home.” She relies on T.C.A. § 37-
4

T.C.A. § 37-1-166 provides, in pertinent part, as follows:

(a) At any proceeding of a juvenile court, prior to

ordering a child committed to or retained within the

custody of the department of children’s services, the

court shall first determine whether reasonable efforts

have been made to:

* * *

(2) Make it possible for the child to return home.

(b) Whenever a juvenile court is making the

determination required by subsection (a), the

department has the burden of demonstrating that

reasonable efforts have been made to prevent the need

for removal of the child or to make it possible for

the child to return home.

4

1-166.4 We disagree with Mother’s characterization of the facts in

this case.

On the issue of “reasonable efforts” by DCS, the State of

Tennessee, through the Office of the Attorney General, relies on a

code provision, which, we believe, is more relevant to the issue at

hand. As pertinent here, T.C.A. § 36-1-113(h) provides as follows:

In determining whether termination of parental

or guardianship rights is in the best interest

of the child pursuant to this part, the court

shall consider, but is not limited to, the

following:

* * *

(2) Whether the parent or guardian has failed

to effect a lasting adjustment after reasonable

efforts by available social services agencies

for such duration of time that lasting

adjustment does not reasonably appear possible;

The children at issue have been away from Mother for over

eight years. The record is replete with efforts by DCS during that

period, both in Marion County and in Hamilton County, to improve

Mother’s parenting skills and her circumstances in order to

facilitate the safe return of the children to her. Mother argues
5

that DCS could have done more to reunite these children with their

mother. This is no doubt true; but this is not the criteria. The

statute does not require a herculean effort on the part of DCS. 

What is required is that the State make “reasonable efforts.” The

evidence does not preponderate against a finding that DCS has met

its obligation under T.C.A. § 36-1-113(h)(2).

Mother next argues that the record fails to support the

trial court’s finding, by clear and convincing evidence, that she

failed to substantially comply with a plan of care. Again, we

disagree. The evidence reflects that Charlene Whittenburg of DCS

wrote to Mother in September, 1995, advising her to attend

parenting classes as required by the plan of care, a copy of which

was transmitted to her with that correspondence. The letter was

sent by certified mail; its receipt was acknowledged by the

signature of Mother’s live-in boyfriend, William Eller. It is

clear that Mother failed to attend these classes. There is

evidence that Mother said she did not want to attend these classes

until she received her income tax return and bought a car. The

evidence does not preponderate against the trial court’s factual

findings supporting a conclusion, by clear and convincing evidence,

that Mother failed to substantially comply with the plan of care. 

The proof clearly supports the trial court’s conclusion that Mother

was aware that she was required to attend parenting classes, but

failed to do so. Termination was justified under T.C.A. § 36-1-

113(g)(2). Mother’s second issue is found to be without merit.
6

Finally, Mother contends that termination is not

justified under T.C.A. § 36-1-113(g)(3)(A)(i)-(iii). We cannot

agree.

DCS took these children into its custody on July 13,

1988. They were originally removed from parental custody because

they had been subjected to acts of physical and sexual abuse. At

the time of the hearing below, Mother was living with a man who had

been accused of sexually abusing Natasha, Mother’s third child --

an allegation that DCS concluded was true, following an internal

review. We find that termination was justified under T.C.A. § 36-

1-113(g)(3)(A)(i)-(iii). We find this by clear and convincing

evidence. Furthermore, the record reflects, again by clear and

convincing evidence, that termination is in the best interest of

these children. See T.C.A. § 36-1-113(c)(2).

The judgment of the trial court is affirmed. This case

is remanded to the trial court for such further proceedings as may

be necessary, consistent with this opinion. Costs on appeal are

taxed to the appellant.

__________________________

Charles D. Susano, Jr., J.

CONCUR:

________________________

Houston M. Goddard, P.J.

________________________

William H. Inman, Sr.J.