# FILED
November 16, 1998 Cecil W. Crowson Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

STATE OF TENNESSEE, ) DEPARTMENT OF CHILDREN’S ) SERVICES, ) ) Petitioner/Appellee, ) ) Appeal No. VS. ) 01-A-01-9710-JV-00582 ) BONNIE FIN EOUT, ) Robertson Juvenile ) No. 10725 Defendant/Appellant, ) ) CLAYTON FI NEOUT, ) ) Defendant. ) ) IN THE MATTER OF: ) ) CLAYTON VANCE FINEOUT, JR., ) D.O.B. 3-22-87; REBECCA L OUISE ) FINEOUT, D.O.B. 3-26-88; JEREMY ) VANCE FINEOUT, D.O.B. 11- 17-83 )
APPEALED FROM THE JUVEN ILE COURT OF ROBERTSON C

OUNTY AT SPRINGFIELD, TENNESSEE THE HONORABLE BURTON GLOVER , JUDGE

JOHN KNOX WALKUP Attorney General & Repor ter DOUGLAS EARL DIMOND Assistant Attorney Gener al 425 Fifth Avenue, North Nashville, Tennessee 37243-0499 Attorney for Petitioner/Appe llee JOHN B. HOLT HOLT & KROEGER 121 5th Avenue West Springfield, Tennessee 37172 Attorney for Defendant/Appellant

AFFIRMED AND REMAN DED

BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR: KOCH, J. CAIN, J. 

## O P I N I O N- 2 - The trial court terminated th e mother’s parenta l rights, following a hearing forwhich she failedto appear. She argues on appeal that the court erred in refusing to grant her a c ontinuance, and that the Department of C hildren’s Services failed to establish suf

fi cient grounds for terminati on of parental rights under Tenn. Code Ann. § 36-1-113. We affirm the trial court.

I.

The State of Tennessee took protectiv e custo dy of th e three natural children of Clayton Fineout, Sr. and Bonnie Fineout on December 31, 1992,after the childre n alle ged that their father had committed acts of p hysical and sexual abuse against all of them. At the time, Mr. Fineout had custody of the childre n an d Ms. Fineout was not liv

ing with him.

On January 16, 1993, the Juv enile Court of Robertson Count y found the children to be abused and neglected, and ordered that they remain in the custody of the Department of Chi l dren’s Services (DCS). The oldest child, Jeremy Vance Fineout, was nine years old at the time. Clayto n Vance Fineout Jr. was five, and Rebecca Louise Fineout was four.

The children remained in the cus tody of DCS up to and inc ludi ng the time of the hearing below, well over four years. During much of that time, DCS attempted to wor

k with Ms. Fi neout with the u ltimate goal of reunifying her with her chi ldre n. The Department created detailed pl ans of care for each of the three children, as well as for b oth parents, which w ere revised and follow

ed up at regular intervals.

The plan for the parents included r equirementsthat they cooperate with any treatment recommendations made by the children’s th erapist; that they enroll and- 3 -

participatein variou s formsof counseling and education, in cluding parenting classes, family counseling, andalcohol and drug counseli ng; that they keep DHS i nformed of ch anges of address, phone number and employment;that they maintain t hei r relationship with the children through regular super

vised visits; and that they provide
an appropriat e envi ronment to meet their children’s needs. Mr. Fineout was also required to undergo a

psychological ev

aluation, to attend sex offender counseling and to admit to abuse of his children.

Mr. Fineout did not comply with any of the requi rements of the plan of care, and the proof shows t hat he did not visit wi th his children after September of 1993, that he did not inform DCS when he changed his residence, and that he di d not tender any sort of support to the childrenin any way. Bonni e Fineout did attempt to comply with some of the require ments set out by the plan of care, but

her efforts were sporadic and inconsistent, with long periods during which she had no contact with the children or with DCS whatsoever.

On February 27, 1997, DCS filed a petition in the Rob ertso n County Juvenile Court to terminate the parental rights of Bonnie and Clayton Fineout. Bonnie Fineout was livi ng in Decherd, Tennessee at the time, and service was obt ained on her on March 21, 1997. Service was also obtained on Clayton Fineout, but only with diffic ulty, because he had not informed the Department of his Gallatin, Tennessee address.

Neither

of the par

ents appeared in

court o n the day

of t rial, April 24, 1997. Ms. Fineout’s attorney tol d the court that his client had assured him that she would come, bu t had tele phoned him that morning t o say t hat her rid e had fallen through. The attorney accordingly moved the court for a continuance, which the court denied.- 4 - The court heard testimony by Anne Marie Bryant, Julie Steele and Kimberly Jordan, social workers who had w orked extensively

with the Fineout children and with their parents and foster parents. Ms. Fineout’s attorney was able to crossexamine all three. The Court also review ed a written report i n support of the petition by the chil dren’s gua rdian ad litem.

On August 27, 1997, the court entered a Final Decree of Guardianship which terminated the par ental r ights of both parents, and placed custody of the children in DCS, wi th the right to place the c hildren for adoption, and to consent to such adoption in loco parentis. Bonnie Fineout appealed. Clay ton Fine o ut, Sr. did not appeal.

II. The Continuance

Ms. Fineout argues that the tr ial court abused its discretionby failing to granther a continuance w hen it l earned that she would be unable to attend. W hile
we agree that the trial cour t should not lightl y decide toproceed with trial in the absence of a defendant who wishes to contest thetermination of her parental rights,
we be lieve that under the cir cumstances of this case, the tri al court’s decision w as well within it

s discretion.

It is well-established tha t the decision to grant or to refuse to grant a continuance is a mat ter with in the sound discretion of the tr ial court, and will

not be reversed absent a clear sho wing that th e court ha s abused its discre tion in so me way. M orr ow v. Drumwright

, 304 S.W.2d 313 (Tenn. 1957). The court retains that discretion, eve n w hen the question before it is one of termination o f parental rights. State Department of Human Services v. Hauck , 872 S.W.2d 916 (Tenn. App. 1993).

In order to show an abuse of dis cretion, a party has the

burden to “show
some prejudice or surpris e which arises from the tr ial court’s failure to g rant the- 5 -

continuance.” Commissioner of the Department of Transportation v. Hall , 635 S.W.2d 110 (Tenn. 1982). In the present ca se, there is clearly

no showing of

surprise. Ms. Fineoutreceived ample notice of the trial, and according to her attorney, she intended to be present up until 11:00 on the mor ning oftrial, when she

informed him she was unable to get transportation. Further, the trial court was aware that Ms. Fineout had frequently missed appointments throughout the case,and her attorney was unable to guarantee her presence if the t rial was continued to a nother date.

Turning to the question of prejudice, we note that the exercise of the trial court’s discretion is eval uated in terms of the information before it at the time t he Motion for Continuance is argued. It is thus incumbent uponMs. Fineout to show us that sh e was prejudiced by the continuance because at the time o f trial she wa s prepared to present evidence of her fitness for parental respon sibilities. A ca refu l readi ng of he r brief on appeal does not sugg est that she was able to pr oduce any such evidence. Nor does she allege that there have been any subseq uent changes in her situation to indicate her readiness to care for the children appropriately. W e are thus obligated to find that the trial court did not err in refusing to grant her a continuance.

III. The Trial Court’s Grounds

Our courts have recognized that parents have a fundamental rig ht to the care, custody and control of their children. Meyer v. Nebraska262 U.S. 390, 3 9 9 (1923). However parental rights are not absolute, and may be terminated upon proper grounds. Due process re quires that these ground s be established by clear and convincing evidenc

e. Santosky v. Kramer, 455 U.S. 745 (1982).

The statu te t hat controls proceedings for the termination of parental rightsin Tennessee is Tenn. Code Ann. § 36-1-113. The standards that must be met before such a termination is ordered are stated in the stat ute as follows:- 6 - (c) Termination of parental or guardianship rights must be based upon: (1) A finding by the court byclear and convincing evidence that the grounds for termination or parental or guardianship rights have been established; and (2) That termination of the parent's or guardian's rights is in the best interests of the chi ld.
Possible grounds for termi nation of parental rights i nclude the following: (g)(1) Abandonment by the parent or guardi an, as defined in § 36-1-102, has occurred; (2) There has been substantia l 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 pa rent or guardian by order of a court for a period of six ( 6) months and: (I) The conditions whic h led to the child's removal or other conditionswhich in all reasonable probability would cause the child to be s ubject ed to further abuse or neglect and which, therefore, prevent the child's s afe r etu rn to the care of the parent(s) or guardian(

s), still persist; (ii) There is li ttle li kelihood that these conditions will be remedi ed at an early date so that the child can be safely returned to the parent(s) or guardian(s) in the nea r future; and (iii) The co ntinua tion of the parent or guardian and child relationship greatly di minis hes the child's chances of early integration into a safe, stabl e and permanent home.

The trial court stated in i ts final order

that the termination of Mr. Fineout’s parental rights was based up on the ground of willful abandonment. Ms. Fineout’s rightswere terminated because of two separate and independe nt gro u nds: noncompliance with the plan of care, and the persistence of conditions pr ev enting the children from safely returning to her care. She argues on appeal that neither of these grounds has been proven by clear and convincing

evidence.

IV. Failure to Follow The Plan of Care- 7 - Through her attorney, Ms. Fineoutcontends that the proof adduced at trial does not

rise to the lev el of substantial non-compliance with the p lan of care, and that where she f ailed to c omply, it wa s either beca use that portion of the plan was inapplicable to her , or it was d ue to th e c on tr ib ut or

y fau lt of th e D ep ar

tm en t. We disagree.

The proof shows that Ms. Fi neout made some attempts to comply with the DCS plan, but her efforts we re not consistent or succe ssful enough to benefit her
or her children. DCS had arranged therapy and counseling sessions to enable her to obtain appropriate parenting sk ills, and to deal with her ot her problems. Her caseworkers explained on numerous occasi ons why it was important for her to attend these sessions. Ms. Fineout went to several ther apists, but was

never released from therapy, and she never completed her c ounseling, in part because she canceled or failed to show up for a majority of her appointments.

The appellant ar

gues that si nce she show ed up for some

sessions, DCS failed to demonstrate that her non-compli ance was sub s tantial. Ms. Fineout also argues that some of the kinds of counseling in the plan we re unnecessary, such as the marital counseling (M r. and Ms. Fineout are separ ated but not divorced) and the alcohol and drug counseling (sh e denied having a problem) . We note, however, that there was some evidence in the record of drug or alcohol problems.

Probably more important, however, was the fact that she failed to a ttend parenting classes or to make any appreciable headway in learn ing neces sary parenting skills. In light of the s pecial needs of the children, and her inability to disciplinethem, her failu re to attend those parenting c lasses amounts in itself to substantial non-compliance w ith the plan of care.

A n other part of the plan involve d regular supervis

ed visits with the children. Ms. Fineout missed a gr eat many ofthose visits for one reas on or another.- 8 -

Sometimes she would call to cance l the visits, but sometimes she would simply not show up, and not call. Between September of 1995 and March of 1996, she did not visit at all.

In September of 1995, sheleft Tennessee for Florida to mov e in with her mother. At about the same time, she sent one of her social work ers a letter to the effect that she wanted to giv e up her rights as

a mother because she felt the children
were better of f in the c are of th eir fost er parent s than th ey w ould be wi th her. However in March of 1996, Ms. Fineout returned to Tennessee an d requeste d visitation. DCS arranged a four-hour visit. The mother returned the children after two hours, becau se she was unable to control them.

The plan of care also required Ms. Fineout to establish a stable home forher children, to meet their basic needs, and t o establish and maintain employment. There was no evidence that she accomplished any of these vital tasks. The evidence showed that after DCS took custody of her children, she moved from place to place, without establishing a stable address. She rarely brought c lothes or food when she visited the children. Though she w orked at various jobs , she never established a stable employment pattern. We be lieve the record overwhel mingly shows subs tantial non-compliance with the pl an of care.

V. Persistent Conditions

The appellant object s to the trial court’s application of the grounds for termination found in 35-6-113(g)(3)( A). Her argument is th at C layton and Bonnie Fineoutare no longer

living together,and that therefore, the conditions that led to the children’s removal from the home (abuse by the father) no l onger exist.

This ar gument i gnores the fact that the statute does not only permit termination of parental rights because of “ the conditions that led to the child’s- 9 -

removal,”but also for the persistence of “ other conditions which in all rea sonab le probability

would ca use the ch ild to be subjected to further abuse or neglect and which, the refore, prevent the child' s safe return to the care of the par ent(s) or guardian(s) . . . .”

The record reveals that the children have all been diagnosed with Attention Deficit Hyperactiv ity Disorder (AD HD) for which they are taking Ritalin. They also have other behavioral problems that may be

related to the abuse they suffered at the hands of their father. While they are cur rent l y doing well i n foster care, the social workers and the guar dian ad li tem agree th at a safe and per manent home environment

is the best alternativ

e fortheir continued development. Because ofthe difficulty of dealing effectively w ith ADHD children, they especially need to

be in the care of someone who possesses ex cellent parentingskills. We note again that Ms. Fineoutfailed to attend most of the parenting classes that

were arranged for her,and
was unable to demonstrate that she lear ned anything from the classe s she did attend.

The guardian ad litem made a phone cal l to Ms. Fineou t on Ap ril 8, 1997, virtually on the

eve of the hearing of this case. His summary of that phone call reveals that in the more than four years since her children were pl aced in the custody of DCS, Ms. Fineo ut m ade no progress in creating a home environment that would enable her to

care for her

children i n a way tha

t would be beneficial to them: “. . . she was not working, ha d no driver’s lice nse, had criminal warrants

outstanding against her in Davi dson County and resides in a single axle travel trailer in Deckerd (sic), Tennessee. When asked about a specific plan of future care forthese children in the event she regained custody, Ms. Fineout’s response was ‘to take c are of them’. Ms. Fi neout c ould n ot name anyone as a substitute c aregiver if she had to leave the children for any reas on. The Guardian Ad Litem found that Ms. Fineout was not totally cohe rent during this conversation.”

We believe the proof was clear and convin cing tha t Ms. Fineout had failed to rectify the n umerous c onditions in her life that w ould likely subject her- 10 -

children to abuse or

neglect if they were re turned t o her, and we affirm the judgment of the trial court.

VI.

The judgm ent of the trial court is affirmed. Re mand this cause to the Robertson County Juvenile Court for further proceedings consistent with this opinion. Tax the costs on appeal to the appe llant.

______________________________________ BEN H. CANTRELL, PRESIDIN G JUDGE, M.S.
CONCUR:

_____________________________ WILLIAM C. KOCH, JR., JUDGE

_____________________________ WILLIAM B. CAIN, JUDGE