### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Septem ber 15, 200 3 Session
STATE OF TENN ESSEE, DEPARTMENT OF CHILDR EN’S SERVICES
v. ERIKA EVERSON ET AL 

### . An Appeal from the Juvenile Court for Dyer County No. 2970 Charles V. Moore, Jr., Judge

No. W2002-01085-COA-R3-JV - Filed Dece mber 11, 2003

This case involves the termination of parental rights. The two children lived with their single mother in Arkansas. The mother and children stay ed temporarily with the children’s grandfat her i n Arkansa s, who sexually abused one of the c hildren. After the grandfather threatened the mother, she and the children went to Tennessee and stay ed with the children’s grandmother. The mother went back to Arkansas and left the children with the gra ndmother in Tennessee. The grandmother repeat edly sought medical attentionfor one of the children. A phy sician de termined that the child
was a victim of Manchausen Sy ndrome by Proxy , a form of child abuse in which the c aretake r exaggerates or secr

etly induces s ymp toms of illness in the victim and then seeks medical attention for the victim’s “illness.” Both children were taken into custody by the Tennessee Department of Children’s Service s. A permanency plan was designed for the children’s mother . The mother failed to com ply with the permanency plan, provide support for the children, or visit the children on a regular basis. I n additio n , she abducted the children from foster car e and would not protect them from the abusive grandmother. The State filed a p etition to

terminat e the mother’s pa

rental r ights. The trial court granted the petition, a

nd the moth

er appe als. We af

firm, finding that termination of the mother’s parental rights was warra nted on several gro unds and that termination was in the childre n’s best in

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

H OLLY M. K IRBY , J., delivered the opinion of the cour t, in w hich W. F RANK C RAWFORD , P.J., W.S., and A LAN E. H IGHERS , J., joined.

Barbara A. Deere , Dyersburg , Tennessee, for the appellant Erika Everson. Douglas Earl Dimo nd, Nashv il le, Te nnessee, for the appellee State of Tenne ssee, Department of Children’ s Service s.1 Mo ther would later expl ain that s he returned to Arkansas to help t he authoriti es locate Grandfather to take him into custod y. She did no t address why she remained in Arkansas in exce ss of five months.
2 OPINION

This is a tragic story

of the cy cle of abuse. Erika Everson (“Mother”) an unmarr ied Arkansas residen t, had two daughters, J.R. (d.o.b. 7/1/97) and P.E. (d.o.b. 7/17/98). Mother’s parents divorced before she was b orn. Mothe r suffe red abus e as a ch

ild. As an a

dult Mothe

r was irr egular ly employed, and she and her daughters maintained a nomadic lifestyle. Even thoug h her father (“Grandfather”) had been abusive to Mother , she and h er daughters sometimes lived at Grandfathe r’s Arkansas home when they “had no place to go.” In Februar y 1998, J.R. was medically examined, basedon a

report of suspected sexual abuse by Grandfather. Subsequently , Arkansas child welfare
serv ices inve stigated the family for environmental neglect and fa ilure to protect. A 1998 Central Registry Chec

k showed true reports of

environmental neglect, failure to protect, and malnutrition. At some point there was an investigation for sexual abuse, though the report of such abuse wa s not substantiated at that time

In January 1999, J.R., then an eigh teen-mo nth-old

toddler, was diag

nosed with

genita l warts,
a sexually transmitted disease. Mother testified that, at that time, she began to suspect that Grandfather

had sexually abused J.R. Nevertheless, in June 1999, after Mother and the children had to suddenly leave

the home of

her boyfr iend, they retur

ned to live at Grandfather’s home. They left
a month later when Grandfather beca m e verbally abusive and Mother observed indications of physical and sexual

abuse in h

er child ren. When

she atte mpted to le ave with h

er daug hters, Grandfather held a gun to Mother’ s head and threatened to kill them.

Mother and the children fled to Tennessee to live with her mother (“Grandmother”). Mother remained there with her children for just over a month. In September 1999, she left her daughters in Grand mother’scare a

nd retur ned to Ar kansas. 1

While Mother rem ained in Ar kansas, in late 1999 and early 2000, Grandmother sought medical treatment for J.R. for various stomach and gastrointestinal problems, such as re fusing to eat
or drink , vom itin g, excessive sleeping, constipation, diarrhea, holding food in her mouth, stomach pain and problems swallowing. Examination by phy sicians, however, failed to substantiate the medical problems that

Grandmother claimed to exist, and Grandmother and J.R. were referred for counseling with the LeB onheur Center for Children in Crisis in Memphis, Tennessee.

Fi na ll y, on February

4, 2000, J.R. was admitted to LeBonheur hospital. J.R. was subjected to a number of tests while at LeB onheur, and Grandmother was interviewed as well. The medical examinations did not substantiate the disorders reported by G randmoth er; in fa ct, J.R. did w ell while hospitalized. Considering this as well as the interviews with Gr andmothe r, the ca se was re

ferre d to Robert Van Walling, M.D. (“Dr. Walling”), a physician and the medic al director of the Le Bonheur Center for Children in Crisis.3

Dr. Walling saw J.R. fourdays afte r she was admitted to LeBonhe ur. He examined J.R.’s medical records, as well as the records made by the social worke

rs and others who had interviewed Grandmother

at length or who had worked with the children, Mother a nd Gran dm other in either Arkansas or Tennessee. He also interviewed Mother at length. Ba sed on all of this information, Dr. Walling diagnosed that

J.R. was a vi ctim

of a for m of child a

buse know n as Munch ausen Sy ndrome by Proxy, perpetrated by

Grandmother. This type

of abuse is characterized by

the perpetrator either indu cing sympt oms o f ill ness i n the c hild throu gh artificial means, such as the administration of a substance or drugs, the withholding of food, or the fabrication or exagg eration

of such sy

mptoms. The perpetr

ator the n seeks me dical att

ention fo r the vic tim, often re peatedly, for these induced or fabricated symptoms. The

perpetr ator is freque

ntly very involved in the vict

im’s medic al treat

ment. This is thought to satisfy the perpe trator’s emotional need for medical attention and nurturing. The hallmark of Muncha

usen Sy ndrome by

Proxy is that, wh

en the abuser is se

parate d from the

victim, the “symptoms” disappe a r. This ty pe of abu se is know n to have a n inter-g enerat

ional ef fect wit h families : children who have been victims of Munchausen Syndrome by

Proxy sometimes inflict the
sameabuse on their children, or grandp arents who perpetrated such abuse on their c hildren may abuse their g randchi ldren in th

e same wa

y. T he consequence s of Munch ausen Sy ndrome by Proxy can be d ire; as ma ny a s twenty

percen t of childr en abuse d in this wa

y ma y di e as a re sult of it.

Based on his investigation, Dr. Walling believed Grandmother, and not necessarily Mothe r, to be the perpetrator of the abuse. In Dr. Walling’s interview with Mother, Mother acknowledged that sh e had been a childhood victim of abuse and had bee n in foster care as a chi ld, and tha t Grandmother

had manipulated he

r th erapy a

nd e xposed her to hazards. Despite this, Mother indicatedher intent to take only J.R. w ith her to A rkansasand leav e J.R.’s y ounger sister P.E . in Grandmother’s care in Tennessee

.
Dr. Walling reported

his findings to the State of Tennessee, Department of Child Services (“DCS ”) on February

10, 2000, recommending that both J.R. and P.E. be taken into prot ectiv e cu st od y, and that G

randmoth er not be permitte d to see th

e chil dren. The nex t day, DCS filed a petition fo r t em po ra ry c us to dy o f b ot h J .R . a nd P. E. in th e J uv en il e C ou rt of Dye r C ou nt y, Tennessee, allegi ng that t he childr en were victims of Munchausen Syndr ome by Proxy

perpetrated by Grandmother, that Mother would not protect the children from Grandmother, and that Mother could not provide a stable home for the children. DCS also requested a protective no-contact order agains tGrandmother. The Juvenile Court issued a “Protective Custody Order” pla

cing the children into DCS custody and prohibiting Grandmother from having any

contact with either of the girls.

Ini ti al ly, wh en J. R. an d P .E . w er e t ak en in to pr ot ec ti ve cu st od y, the goal was to reunite them withMother. Toward that end, o n Apr il 6, 2000, DCS sent Mother, still residing in Arkansas, a permanency

plan. The plan requi red Mo ther t o unde rgo a com plete psycholo gical e valua tion ; to s ign
a release allowing record s from the evaluat ion to be pr

ovided to D CS; to develop, with the assistance of her social counselor, a safety plan designed to protect her children; to comply with the no-contact order issued against Grandmother; to receive a nd complete psycholog

ical treatment to cope with the trauma of her own abuse; to develop independent livi ng skill s by obtaining stable e mployment or public assistance, appropriate child day care, info rmation concerning the use of commu nity resourc es,2 M other later exp lained that G rand moth er cam e with he r for so me o f the visits “as a d river.”
4 and a stable place of residence for at least six months; to complete a parenting class; to lea rn th e characteristics of childr

en diag nosed with

“failur e to thrive ”; to establish support systems by joining
a suppo rt gr oup; t o lea rn ab out Muncha

usen Sy ndro me by

Proxy and r ecog nize i t as a pro

bable disorder suffered by

Grandmother; and to consistently visit the childre n. Mother wa s told

by D CS
on at least two oc casions t hat if she moved

from Ark

ansas to Tennesse e, DCS woul d be able to provide her

assistanc e infulfilling the goals of the plan by , for example, helping her to find a job and locate h ousing. Mother declined to move fro m Arkansa s.
DC S received a letter indicating that Mother ha d scheduled a psy chological evaluation. However, DCS did not re ceive a nyt hing fur ther to ind

icate whether the eval uation too

k place o r to advise DCS of the results of any

such evaluation. To further compound the problem, Mother refused to sign a release that would have per mitted Tennessee DCS to communicate with her providers outside Tennessee to confirm Mother’s completion of the plan’s require ments.

In the summer of 2000, Arkansas child welfare ser vices provided Te nn essee DCS an Inte rstate Compact on the Placement of Children report (“Arka ns as Report”), a report on the Arkansas agency ’s visit to Mother’s home in Arkansas, to determine if Mother’s home was appropr iatefor placement

of the ch ildren. T he repor t noted tha

t the home

was clean and Mother was employed. However, Mother was living with J.R.’s father, a convicted felon who was hiding from his probation officer. The report indicated that J.R.’s father had fathered four children by

different women, none of whom receive d child support from him. During the visit by the A rkansas social worker, Mother a

cknowle dged th at G randmo ther wasthe rea son her da ughter s were ta

ken into p rotective custody, and that Gra ndmother was not to have contact with the children if they wer e returned to her custody. Ne vertheless, Mother listed Grandmother as a member of he r extended family who was a

vailable to help if the

childre n lived wit

h her, and said that if custody was returned to her, she

would try

to chang e the dia

gnosis of Munchau sen Sy

ndrome by Proxy regar

ding Grandmother. The social worker report ed that Grandmother left Mother’s home when the social worker arrived, an d returned again during the visit. Considering that Mother was living with a convictedfelo n, tha

t Mother be

lieved tha

t the d iag nosis of Mu ncha

usen Sy ndro me by

Proxy regarding Grandmother wa s erro neous, and that Mother continued to involve Grandmother in her life, the report concluded that Mother’s home was inappropr iate for placement of the children. During t he near

ly tw o ye ar peri od after

J.R. and P.E. were ta

ken into pr

otective custo dy , Mother saw them on only eleve

n occas ions. For more than one of Mother’s visits, Grandmother
came along with Mother, in violation of the no-contact order ag ainst Grandmother. 2 The firs t time th at Grandmother accompanied Mother for a visit, Grandmother was disingenuously describe d t o the social wo

rker asa “famil

y f riend.” Mother c ontinued t o maintain t

hat the di agnosisof her c laim as victim o f Muncha

usen Sy ndrome by

Proxy perpetr ated by Grandmo ther wasnot corr ect.

At Mother’s Februa

ry 2001 visit w ith J.R. and P.E., she absconded with the children. Three da ys after kidnapping the children from foster care in Tennessee, Mother turned the c hildren over,5

phy sically

unharmed, to Arkans as of fi ci al s. Su bs eq ue nt ly, Mo th er wa s c on vi ct ed in Ch es te r C ou nt y, Tennessee of custodial interference and rec eived an el even-month-and-twenty -nine-day sentence and
a fine of $1000 on March 14, 2001. Al l b ut te n d ays of her ja il time wassuspende d. The court also issued a no-contact order, prohibiting her fr om seeing the children. Although the order stated that she could petition the Chester County court for relief from the no-contact order, Mother did not do so. Consequently, there we re no more visits with the children.

On May 7, 2001, a petition to terminate Mother’s parenta l rights w as filed. The petit ion also sought to terminate the parent al rights of J.R.’s father, Rick Roberts, and P.E.’s father, Shawn Willett. The trial was held on January 9th and 17th, 2002. The

procee dings we

re held before Ly man Ing ram, Juvenile Referee in the Juvenile Court for Dyer County , Tennessee. A default judgment was entered agains t t he chi ldren’s father s, and the terminat ion of the ir pare ntal rig hts is not at

issue in this appe al. Proof

was hea rd reg arding

the termination of

Mother’ s parent

al righ ts.

In the January 9, 2002 portion of the proc eedings, the p rimary ev idence heard was the testimonyof Dr. Walling. Dr. Walling testified about his review of J.R.’s medical records and the records made by

the social workers and others who had interviewed G randmother at

length or who had worked with the ch

ildren, M other and Grandm other in e ith erArkansas or Tennessee. Dr. Walling testified about seeing J.R. at LeBonhe ur hospital and his interview with Mother. He said that Grandmother’s repeated assertions of va rious disor ders in J.R. were not substantiated by the battery of medical tests performed on the child, and t hat J.R. in fa ct ate and did well while in the hospital, even g aining w eight du ring the short time

she was there. He

testifie d rega

rding th e basis for his conclusion that J.R. was a victim of Munchausen Syndrom e by Pr oxy, perpetrated by Grandmo th er. Dr. Walling testified at some length about his interview with Mother, including testimonyto the effect that Mother had told him that she had been the victim of sexual and emotional abuse as a child, tha t she had b een plac ed in fost er car e as a child, that she had been in therapy more than once, that she had been victimized wh ile in therapy, that Gr andmother had manipulated Mother’s therapy

and expose d her tohazards, that Grandmother had not protected Mother as a child, that she had su

ffere d repea

ted episo des o f illness and victimization, and that she distrusted Grandmother. Dr. Walling also said that Mother e xpressed hopelessness and seemed to be in consider able emotiona l and soci al-setti ng insta

bility , and wasmore foc

used on he

r own pro blems than those of her child. Dr. Walling testified that, despite Mother’s statements about her own abuse
as a child, she planned to take only J.R. with her to Arkansas and leave P.E. in Grandmother’s care. Thus, he testified, he recommended that both children be immediately placed in protective custody and that Grandmother be prohibited from being in contact with the children.

The trial resumed on January 17, 2002, a gain before Juvenile Re feree Ing ram. The first witne ss was Tanya

Tucker Watson, the Tennessee DCS case worker for the children who had investigated

three ref errals for possible abuse or neglect regarding multiple medical conditions reported by

Grandmother which could not be substantiated medically . These referrals culminated in J.R.’s admission to LeBonheur h ospital to ad dress he r “failu re to thri ve” and

to evalua

te Grandmother’s unsubstantiated reports of J.R.’s medical prob lems. Watson explained that Tennessee DCS contacted Arkansas officials to ask them to accept the c hildren’s case b ecaus e6

Mother lived in Arkansas, and the Arkansas officials ref used to do so because the children were no longer residents of Arkansas.

Watson described J.R.’s demeanor prior to being removed from the custody of Grandmother and Mother as very

bashful, quiet, withdrawn and scared. Watson said that Grand mother and the children were provided c ounselin g prior to J.R.’s hospital admission, but Grandmother did not complete the co urse o f coun selin g, and eff orts to persuade Grandmother to place the childre n in day
care proved fruitless. After removal of the childre n f rom the care of Grandmother and Mother, Arkansas officials evaluated Mother’s home in Arkansas and found it inappropriate for placement of the ch ildren. A rkansasofficia

ls did not pa

rticipat e furthe r with Ten

nessee D CS.

Watson explained the DCS permanency plan proposed to Mother

in order to reunite her with her children. Under the plan, Mother was to complete psy chological evaluation s and ther apy to addressher past

abuse and the abuse of her children, abide by the order

to protect the children from contact with Gra ndmother , obtain st

able hous ing as w ell as eit h er stabl e employ

ment or pu

blic assistance, understand the abuse inflicted on her children, especially the Munchausen Syndrome by Pr ox y, utilize supp ort sy stems in her community to preve nt further abuse or neglect, attend pa renting classes , and si gn releas es so that Tenness ee DCS could be app rised of her prog ress and treatme nt. Since Arkansas had declined to accept the ca se, DCS encouraged Mother to move to Tenness ee so that Tenness ee DCS could provid e help and services and

monitor her progress. Mother, however, refused to leave Arkansa s and prov

ided Ten nessee D CS little

information on any prog

ress she had made implementing the requirements of the permanency plan. In addition, Mother paid no support for the children. During Dr. Walling’s testimony on January 9, there were few objections to admissibility ; the small number of

objections lodged were to written documents sought to be admitted into evidence, such as an a

rticle by Dr. Walling on Muncha usen Syndrome by

Proxy. I

n contrast, in the proceedings on January

17, during Watson’s testimony, numerous objections were raised, such as hearsay objectio ns. Initially , the trial judge responded to individualobjections. Shortly thereaf ter, however, the trial judge indicated that he would simply let both parties admit into evidence any thing they chose, an d that he would consider only unde termined portions of the evidence that were “pertinent” or “important.” The trial judge e xplained:

THE COURT : As I’ve alrea dy said, now, I

don’t want a bunch of objections. I’m going to let thing s run wide open. I ’m going

to only consider those thin gs that I think
are pertine

nt. You ca

n trust me. I’m n ot g o ing to consider any thing that’s not pertine nt.

. . . . I’m going

to let both of you g o as far as you want to g o. I’m going to hear everything

that you’re w anting me to hear, but about 90% of it is going to go in one ear and out the other one.7

No t s ur pr is in gl y, f

ur th er ex pl an at io n o f t he tr ia l c ou rt ’s re as on in g w as ne ce ss ar y:

THE COURT: Let me explain one thing to y ou. The rea son I ’m doing this in this fashion, we’ve got two children involved here. The Court is not going to use st rings of evidence in order to determine what’s the be st interest of these two children. I’m going

to do what I think is the best for these two children whe n I hear all of the proof. And that’s the reason I’m not limiting you. I

want to hear every

thing that you’ve got, but at the same time a lot of it is not going

to have a ny influenc e on me one way or

the other. The trial judge later added:

THE COURT: I told y ou, I’m going to letevery

thing in t he reco rd that y ou want to put in it. That way an appe llate court can’t say

anything a

bout me not letting it in.

The attorne

ys f or both pa

rties re sponded to

this unusu al ap proach by e ach making a “standing objection” to “any

hearsa y,” to whic h the trial judge replied that he would acce pt the “standing objection” of both and promised to “consider only those things that are vital to our case.”

The DCS case worker assigned to J.R. and P.E. afterWatson also testifie d about DCS efforts to inform Mother of the requirements of t he per manency

plan, to e

ncourag e Mother

to move to Tennessee so tha t DCS could a ssist her in meeting the requ irementsof the pla

n, and to f

acilitat e Mother’s visitation with the children. He also tes tified about DCS’s actions when Mother absconded withthe children and Mother’s subsequent arrest and inca rceration for custodial int erfere nce. Thereafter, Mother was not permitted to visit the children without court permission, which she did not seek.

The trial judge also heard testimony from Romaine Noles, the foster care case wo rker wit h West Tennessee Children’s Home who worked with J.R. and P.E. Nol es testifie d that whe n J.R.
was first taken into protective custody she “ was very guarded and untrusting of people. She refused to look atherself

in the mirr

or. She did

not like to

smile for pictures. When she first came in, her teeth were really

bad. . . . She had to have her top four front teeth pulled because they were decay

ed.” Noles testified further that P.E. had bleeding sores all over her body from mast

ocy stosis. She

said that bo th gi rl s h ad po or sp ee ch an d b ot h a ct ed ou t s ex ua ll y, touching themselves and each other in a sexual manner.

Noles described the progress the children had made. Though J.R. was still guarded, she had become more fri endly

with Noles and had begun making friends a t pre-school. J.R. was no longer avoiding the mirror: “[S]he’s got all these dress-up clothes. And she loves to play and dress up and look in the mirr

or.” Bo th childre

n had bee

n taken to

a dentis t and tr eated for other medical problems

. J.R.’s speech had improved considerably with therapy. The

y stopped acting out sexually about six months after entering custody . Noles described the personal achievements the c hildren8

were ma king: [T]hey’re both doing just won der ful. . . . [P.E.] goes to the Kawana Center for physical therap y . . . [be cause] she ha d a hard time learni ng how to r un and jump. She’s made a lot of improvements with that, and they’re both very smart. They know their ABCs and they’ re b ot h learning to write their name. And they ’re both very independ ent, and they

dress themselve s and do every thing the y c an for themselve s.
Noles also testified about the girls’ demeanor toward Mother during visits. Noles described J.R. as being reluctant both to permit Mother to take a photograph of her and to give Mother photographs taken by her

foster family, c

rying when lef t alone wi th Moth er, rej ectin g Moth er’s hu gs and even telling Mother, more than once, that she did not love her any

more. Noles said that J.R.’s response to Mother’s entreaties gre atly upset Mother. She observe d that, af

ter visits with Mother, J.R. would again become guarded toward Noles.

Noles also desc

ribed the childre n’s rea ction to the

incident in which Mother

abscond ed with them. When they were

returned, she said, P.E. had “sw ollen all ov er her b ody,” nece ssit ating a doctor’s visit the f

ollo wing day , and J.R. had a worse ned ear infectio n and ac ute asthma tic bronchit is. In a ddition, bo th childre

n’s dispos itions had

chang ed. Both

had once again become quiet
a nd reserved. When asked if she had had fun, J.R. gave a blank stare, but when asked if she ha d been scared , J.R. nodded

her hea d ye s. Within an hour, thei r dispositi ons had re

turned to normal. However, for months thereafter, the c hildren resumed acting out sexually

. Fi na ll y, Mother testified in her own behalf. She did not dispute talking to Dr. Walling about her own childhood, and did not specifically dispute tell ing him the experiences he recounted, but explained that Dr. Walling did not tell her why he was meeting with her. Mother said that she “may have mentioned” to Dr. Walling that she was sexually abused by Grandfather, but

clarified that she didnot know “for sure” that she had been sexually abused. She explained that she endedup bringing the girls to Grandfather’s home beca use she had been

“kicked out” by

her boyfr iend “with nowhere to go.” After stay

ing there several weeks a

nd having Grandfather baby sit the girls while she worked, Mother finally decided to leave Grandfather’ s home because Grandfather “ started verbally abusing my daughter and I

also saw other signs of possible phy sical or s exual abuse.” T hey fled a fter Grandfather

held a g un to her hea

d. Mother

continue d to mainta

in that sexual abuse of her children by Grandfather was “never

proven, ” even a

fter J.R. wa s diagno sed as a t oddler w ith genita

l warts. She admitted that she and her daughters continued to stay with Grandfather

after J.R. was diagnosed with genital warts because she “re ally had no place to go.”

Mo theralso maintained that she had never seen Grandmother do a nything to hurt her daught ers, but said that if she were ordered to protect them from Gr andmother, she wo uld do so. Neverth eless, she acknowledged

that Grandmother

had accompanied her to every court hearing and had accompa

nied her to visits wit

h the chil dren, re gardle ss of the c ourt o rder prohibiting Grandmo ther fro m being in contac t with the g irls.3 Mo ther said t hat one attorney wi thdrew from representing her because t hey “didn’t see eye to eye” and bec ause “[ h]e d idn’t like [h er] mo mm a.”
9 Mother described her efforts to comply with the permanency

plan, her sporadic employ ment, her lack of transportation, and her series of attorney s, whom she held res ponsible f or not adequately informing DCS of her

efforts

. 3 Mother admitted that she had never paid any

support for her children. She acknowledged that, at the time of the hearing, she was unemploy ed. She explained that she was living with her f

iancé a t the time, and that h

e was willing to he

lp Mother a

nd her ch ildren if custody was returned to her.

On Februa ry 8, 2002 , the t rial c ourt i ssued a writ ten or der ter minat ing M other’s pa rental rights. In itsorder, t

he trial c ourt stated that it found that D r. Wallin g’s te stimony “reg arding the description of

Mu nc ha us en ’s Syn drome by Prox y a nd the revelation s of [Mother ] to him in the

ir conversation was cre dible.” T he trial c ourt note d Mother w as dishone st in that she had

absconded withthe children in violation of a court order and tried to pass Grandmother off as a family

friend so that Grandmother could see the children, also in violation of a court orde r. In its written order, the trial court held: (1) that

Mother “willfully abandoned” the children because she “willfully

failed to pay child support or to eng age in more than token support;” (2) that Mother “was in car cerate d for all o r part of four mont

hs immedia

tely preced ing the f iling of this petition and has engaged in conduct prior to incarceration which exhibited a wanton disregard for the” children; (3) that although DCS “has made reasona ble efforts to assist [Mother] to establish a suitable home for the children for a period of four (4) months following the removal, . . . [Mother] has made no reasonable efforts to provide a suitable

home and . . . it appe ars unlik ely that she w ill be able to [do

so] at an e arly

date;” (4) that

“the conditions whi ch led to [th e childr en’s] rem oval still persist [and] otherconditions persist”that wer e unlikel y to be reme died at a

n early date and would probably result in f

urther a buseand neglect, thus preventing the children’s return to Mother’s c are now or in the near future and diminishing their “ chances of early integration into a stable and permanent

home;” and(5) Mother “ failed to comply in a substa

ntial manner with th ose rea sonable responsibilities related

to remedying

the conditions which necessitate foster care place ment.” The trial court found that it was in the chi ldren’s best interest to terminate Mother’s parental rights. Fr om that orde r, Mother now appe als.

On appeal, Mother asserts that the trial court did not have juri sdi ction to hear the case. Mother also argues that the trial court erroneously admitted inadmissable and prejudicial evidence, thus preventing her from having a fair trial. Finally , Mother contends that there was not clear and convincing evidence to support any of the grounds relied up on by the trial court to justify the termination of pare

ntal rig hts, nor to support a finding that the terminat ion of par ental rig hts was in the children’s best interests.

Since this was a

bench tr ial, we review the trialcourt’s factua l finding s de novo accompanied by a presumption o f co rrectness unles s the pre pondera nce of th e evidence is othe

rwise. T enn. R. App. P. 13(d); Campbell v. Fl a. Steel Corp. , 919 S. W.2d 26, 35 (Tenn. 1996). The trial court’s10

legal conclusions are reviewed de novo withno presumption of correctness. Campbell , 919 S.W.2d at 35. When the resolution of the issues in a case depends upon the truthfulness of witnesses, the trial judge, who has the opportunity to observe the manner and demeanor of the witnesses as they testify, is in a far better position than an appellate court to determ ine credi bility. McCale b v

. Sa tu r n Cor p. , 910 S.W.2d 412, 415 (Tenn. 1 995); Wh it aker v. Wh it aker , 957 S.W

.2d 834, 837 (Tenn. Ct. A pp. 1997). Therefor

e, the weight, faith, and

credit to be g

iven to any wi

tness’s testi

mony will be given great we ight b y the appe llate c ourt. In re Estate

of Walton v

. Y oung , 950 S.W.2d 956, 959 (Tenn. 1 997); Wh

it aker , 957 S.W.2d at 837.

The stand ard for

the termination of

parenta l rights h as been s et out in pr evious ca ses:
The United States Supreme Court has rec ognized the important nature of
cases involving the termination of parental rights, stating that "[f]ew consequences of judi cial action are so grave as the s everance of natu ral family ties." M.L.B. v. S.L.J., 519 U .S. 102, 119 (1 996) ( quot ing Santosky v. Kramer

, 455 U.S. 745 (1982) (Rehnqui st, J., dissenting)). Accordin gly , "the in terest of parentsin their r

elationsh ip withtheir children is sufficiently fundamental to come within the fi nite class of liberty interests protected b y the Fourteenth Am endment." Id. The constitutional protections of the parent- child relationship require certain sa feguards before the relation ship can be severed. See O'Dan iel v.. M essier, 905 S.W.2d 182, 186 (Tenn.Ct.App.1995) ( rev'd on other grounds, In re: Swanson, 2 S.W.3d 180 (Tenn.1999)).

As a safeg

uard, co urts are require d to apply

th e heigh

te ned "clear and convi ncing" proof standard. See Santosky, 455 U.S. a t 769; O'Daniel, 905 S.W.2d at 186. To justify the termination of pare ntal rights, the ground s for ter mination mu st be established by clea

r and convincing ev id ence. See Tenn.Code Ann. § 36-1- 1 13(c)(1) (Supp.200 0); State Dep't of Human Servs. v. Defriece, 937 S .W.2d 954 , 960 (Tenn.Ct.App.1996). Evidence which satisfies the clear a nd convincing standard "eliminates any serious or substantial doubt conc erni ng the co rrectness of the conclusions to be dr awn from the ev idence." O'Daniel, 905 S.W.2d a t 188. "T his heightened

standard... serves to prevent theunwarranted termination or interferenc e withthe biolo gical parents' ri ghts to thei r children." In re M.W.A., 980 S.W.2d 620, 622 (Tenn.Ct.App.1998).

In re Matter o

f Katherine C. , 2001 WL 987137, at *2 ( Ten n. Ct. App. Aug. 22 , 2001). T hus, parental rights may be

terminatedonly

if there is clear and convincing evide nce of grounds justify

ing such termination. Santosky v. Kramer , 455 U.S. 745, 770-71 (1982); In re Drinnon , 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988).

As a threshol d i ssue, Moth er arg ues that T ennesse e courtslacked j urisdicti on to terminate Mother’s parental rights in J.R. and P.E., since Mother was an Arkansas resident and the children
were in Tenne ssee only tempora rily . Under t

he Unifo rm Child Cust

ody Juris diction an d4 Th is Co urt is unaw are o f an exc eptio n to the h earsa y rule for e viden ce that is “p ertinen t” or “im por tant.”
11 Enforcement

Act (UCCJEA ), Tenne ssee cou rts have jurisdict ion over a

child if T ennesse e is the ch ild ’s home state on the date of the commencement of the leg al proceeding. Tenn. Code Ann. § 36-6-216(a)(1) (2001). T he child’ s home sta

te is defined in the

statute a s “the sta

te in which a child lived with a parent

or a person acting as a pare ntfor at le ast six (6) c onsecuti ve months i mmediately before the commencement of a child custody proc eeding.” Tenn. Code Ann. § 36-6-205(7) (2001). In this case , it is undisp uted that J.R. and P.E. had lived in Tenne ssee, fi

rst with Mother and Grandmother

and then with Grand

mother on

ly, for nea rly seven mon

ths befor e they were ta ken into state custody . Mother a

dmitte d that she and th e ch il dre n m ove d t o Te nne ss ee i n J ul y 199 9. In Septemb er

1999, she returned to Arkansas and left the children in Te nnessee with Grandmother, who clea rly acted as their parent until they were taken into state custody in February

2000. Arkansas officia ls decline d to take jurisdiction for this reason. Clearly , Tennessee was the children’ s “home state” a t the time th

ey were ta ken into pr

otective custody . This issue

is without me

rit.

Mother also argues that the manner in which the proc eedings were conducted violated he r right to due proc ess. She a rgues t hat she w as preju diced be cause th e judge was unde

r a disab ility due to his wife ’s illness , because approximately two years e

lapsed from the time the children were taken into cus tody

to the trial determining whether her pare ntal rights would be terminated, and because the judge admitted into evidence all of the hearsa y evidence

presented. The issue of whether Mother was denied her right to due process because the trialjudge expressed concern at trial about needing to wrap up Dr. Walling’s testimony in order to go home to care for

his ill wife was waived because it was not presented at trial. Simpson v. Frontier Cm ty. Credit Union , 810 S.W.2d 147, 153 (Tenn. 1991). The issue pertai ning to the timeliness of the proceedings was likewise waived because Mother failed to raise it at trial.

The issue of the trial court’s wholesale admission into evidence of any and all hearsay evidence is another

matte r. Th ere w ere f

ew ob ject ions t o Dr. Wa lli ng’s testimony on January 9, 2001, including

his testimo ny r

egard ing Mothe

r’s admis sions to him about her own childhoodabuse at the hands of Grandfather and Gra ndmother. In the pr oceedi ngs on January 17, however , numerous hearsay objections were ra

ised by both part ies. These were cut short by the trial judge’s admonition that he did not “want a bunch of objections” and his repeated blanket statement that he in tended “to let things run wide open.” The trial judge appeared to state that he would dete rmine the admissibility of the evidence after hearing all of it. Rather than determining whether the evidenc e was admissible under the pertinent Rules of

Ev id en ce , h ow ev er , t he tr ia l j ud ge re pe at ed ly “ re as su re d” th e a tt or ne ys that much of the evidence would “go in one ea r and out the other” and that he would consider only evidence that was “pertinent” or “important.” 4

However we ll-intent

ioned the trial judg e may

have be en, clea

rly this was a misguided manne r in which to conduct

the trial. While we agree with the trial judge’ s emphasis on the importance of determining the future of the children, and h asten to add the importance of determining the fundamental right of Mother to parent he r childre n, this is not a reason to discard the Rules of Evidence. To the co ntrary , the Rulesof Eviden ce, pre mised on ba sic notion s of fair play , become12

even more essential in cases such as this, where the sta kes are so very

high. Perhaps realizing the trial court’s clear err or, the State responds by

asserting that, r

egard less, the direct, non-hearsay

testimony of the witnesses and the a dmissions of

Mother constitute clear and convincing evidence sufficient to terminate Mother’s parental rights, and that any error by the trial
cour t is h armless. In light of this, we turn to an e xamination of the evidence of grounds for terminat ion of Mother’s pa

rental r ights. Under Tennessee statutes, the termination of parenta l rights must be based on:
(1) A finding by the

court by clea

r and convincing evidence that the g rounds for termination or parental or guardia nship rights have been established; and
(2) That ter

mination of

the pare nt's or g uardian 's rig

hts is in the be st intere sts of the child.

Tenn. Code Ann. § 36-1-11 3(c)(1 ) and (2) (2001). T he gro unds for t erminati on are se

t forth in Tennessee Code Annotated§ 36-1-113 (g). T hree of these g rounds ar e at issue in this app eal: abandon ment, substantia

l noncomp liance with the permanency plan, and failure to remedy persistent condition s which pr

event the child’s r eturn. Th ese statu tory ground s are se

t forth asfollows: (g) Initiation of

terminat ion of par ental or guard ianshiprights may be

based upon any of the fo llowing g

rounds:
(1) Abandonment

by the pare

nt or guardian, as defined in § 36-1-102, has occurred;
(2) There has been substant i al noncompliance by

the parent or guardian with the statement of r espons ibilities in a permanency plan . . .;
(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 cond

itions whic

h led to the child’s removal or other conditions which in all re as onable pr obability would cause the child to be subjecte d to further abuse
or negle ct and which, therefore, prevent the c hild’s safe return to the care

of the parent( s) or gu ardian( s) still pers ist;13 (ii) There is little likelihood thatthese condition s will be remedied at an early

date so t hat th e child can be saf ely returned to the parent(s) or gua rdian(s) in the near future; and
(iii) The co nt inuation of the parent or guardian and child relat io nship greatly

diminishes the child’s chances of early

integration into a safe, stable and permanent home.

Tenn. Code Ann. § 36-1-113(g)(1)-(3)( A) (2001). Thus, if any

one of these grounds is established by clear a nd convincing ev

idence, and it is es tablished as well th at termin ation of p arenta l rights is in the child’s best interest, then the termination will be upheld.

The definition of abandonment for purposes of

an action to terminate parental rights is set forth in Tennessee Code Anno tated § 3 6-1-102(1)(A). Generally , abandonment means that for a period of four consecutive months prior to thefiling of the petition to terminate parental rights, the pare nt ei ther willfully failed to visit the child or willfully failed to support the child. Tenn. Code Ann. § 36-1-10 2(1)(A)(i) ( 2001 and Supp. 2002). Where, as in this case, the parent has been incarcerated

during a portion of the four-month period preceding the filing of the petition, a different definition of abandonment is applicable:
(1)(A) "Abandonment" means, for purposes of te rminating the parental

or guardian rights of parent( s) or gu ardian( s) of a chil d to that c hild in ord er to mak e that ch ild availab le for a

doption, th at:

. . . . (iv) A parent or

guardian is incarcerate d at the time of the institution of an action or proceeding to declare a

child to be an abandoned child, or the parent or guardian has been incarcerated during all or pa rt of the four (4) months immediate ly preceding the institution of such action or procee ding, and either has willfully f ailed to visit or has willfully failed to support or has willfully failed to make reasonable pay

ments toward the support of the child for four (4) consecutive months immediately preceding such parent 's or guardian's incarc eration, or the parent or guardian has eng aged in conduct prior to incarceration which

exhibits a wanton disregard for the we lfare of the child.

Tenn. Code Ann. § 36-1-102(1)(A)(iv) (2001 & Supp. 2002). Here, since Mother was incarce rated for a period

of te n days in March 2001 f or custodial interference after she absconded with the children during a visit, the per tinent time pe riod is the four-month period preceding her inc arceration. Mother admitted she pa id n o support at any time during the period of time in which J.R. and P.E.
were in protective custody. This g round is established by clea r and convincing, indeed undisputed, evidence.14

The sec ond ground for te rmination disputed b y Mo the r in this appeal is substantial noncompliance with the permanency plan. Mother does not appear to argue tha tthe requ irements of the permanency

plan were not “ ‘reasonable and r elated to remedy

ing the condition s which necessi tatefost er care plac ement.’ ” In re Va lentine , 79 S.W.3d 539, 547 (Tenn. 2002) (quoting Tenn. Code Ann. § 37-2-403(a)(2)(c) (2001 & Supp. 2002)). Here it is clear that the requ irements of the plan were reasonable and re lated to remedying

the conditions which necessitated foster care for J.R. and P.E. Under the plan, Mot her was to undergo a psy chological evaluation, to sign a releas e allowing DCS to have access to the evaluation, to comply with the order of protection requiring Grandmother to stay a way fr om the children, to d evelop a safety plan, to c omplete counseling to addre ss her ow n abuse as well as the abuse of her children, to learn a nd understand the type of abuse with whic h J.R. was dia gnosed , Muncha

usen Sy ndrome by

Proxy , to obtain

stable employment

or public assistanc e, as well as a sta ble resid ence fo r at leas t six months, to

complete
a parenting class, to learn about children diag nosed with “failure to thrive”, and to m aintain consistent visitation with the children. In addition, Mother understo od she wa s to furnish D CS with evidence of her compliance with the permanency plan for J.R. and P.E. These re quireme nts clea rly addressed the conditions that nec essitate d foster care a nd that pr

evented the gir ls from sa

fely returning to Mother’s custody

.
In this case, t h e undisputed evidence establishes that Mother’s employ ment had been sporadic at best, andshe was unem ployed the date of the hearing. Mother had not had a stable, suitable residence, and

she was o nce ag ainliving with a boy friend. Mother vi sited the c hildren o nly eleven times in ne arly

two y ears, including

the occa sion on whi ch absco nded with them. Mother was unwilling to comply with the no-contact or der regarding Gr

andmother. It is undisputed that Grandmother

accompanied Mother

on at least two of the occasions on which Mother did visit the children, and Mothe

r even w ent so fa

r as to dishonestly

characterize Gr

andmoth er to D CS as a “family frien d.” Mo reover , alth ough Mother seeks to bla me her a ttorney s for fa

iling to a pprise DCS of her progress towards compliance , the fact is that the responsibility was Mother ’s and she failed to do so. Mother argues on appeal that, in finding this g round established, the trial court relied upon inadmissib le testimony and that Mother in fac t substantially complied with the permanency plan. This is cl ea rl y not the case. T he undispu

ted evide nce show s that Mothe

r failed to comply

with virtually all of the

most import

ant requ irementsof the pe

rmanency pl an, such

as fin ding stable employment

and a sta

ble, suita ble resid ence, a nd protec ting the childre n from co ntact wit

h Grandmother. Once again, this ground wa s clearly e stablished by clear and convincing evidence, even undisputed, evidence.

Fi na ll y, the third g

round for terminat ion of par ental rig hts relie d u po n b y the trial court is known by t

he shorth and “pe

rsistent c onditions, ” that is, t he child h as been r

emoved f rom the ho me of the pare nt or gua rdian fo r at leas t six months, and the conditions which led to the child’s removal persist or other conditions which would likely re sult in further abuse or neglect persist, the reb y preventing the child’s safe return to the care of the parent or guardian, and there is little likelihood that these con ditions will be remedied in the near future, and “c ontinuation of the parent . . . and child relationship greatly

diminishes the child’s chances of early integration into a

safe, stable and permanent

home.” Tenn. Code Ann. § 36-1 -113 (g) (3)(A) (2 001) . Wemust examine the conditions15

which led to the removal of J.R. and P.E. from Mother’s care, as well as other conditions reg arding Mother’ s case which woul d likely lead to f urther a buse or neglect.

From Dr. Walling’s testimony on his interview with Mother, which dre w no objection from Mother’s counsel, f

rom undisputed evidence and documents introduced into evidence by Mother, and from Mother’s own testimony, a sa d picture emerges of Mother ’s circu mstance s leading

up to the child ren’s r emoval. After a childhood in which she was abused in separate households by her father and her mother, or

placed in foster care, Mother reache d adulthood with two daughters and littleskill at living independ ently . With only

sporadic employ ment, af ter bein g “kick

ed out” by her most recent boyfriend, Mother found herself and her daug hters s taying a

t Grandfather’s home, despite the fact that Mother was likely abused by Gr

andfather as a child and despite clear indications that Grandfather m ay h ave already sexually abused her child. B elieving she had little alternative, Mot her closed he

r eyes to the li

kelihood o f furthe

r abuse u ntil the situ ation bec ame intole rable

. Finding herself once again homeless with little means to support herself and her daughters, Mother fled to her mother’s home in Tenne sse e. Once again closing he r eyes to the likelihood that Grandmother

abused her as a

child and could abuse her daughters in the same way, Mothe

r left her children alone in Grandmother’s care and re turn ed to Arkansas. Predictably , J.R. and P.E. were abused by Gr

andmother and ultimately ended up in protective custody in Tenne ssee.
When Arkan sas offi cials refused to take the case, Tenne ssee officials could only offer assistance to Mother in Tennessee. Mother, however, r efus ed to move

to Tenne ssee for

help remedying

her plethora of problems, and was unab le even t

o communic ate to Te

nnessee officia ls her eff orts in Ar kansas.

Co ns eq ue nt ly, by

the time of

trial, ma ny o f the conditions whi ch led to the children’s removal
or would like

ly r esult in fu ture abu se or neg

lect remained la

rgely unchanged. Mother remained in Arkansa s, unemployed, without transportation and living with yet another boy

friend. Du ring the time in which the children were in foster care , Mother had paid no financial support for their care. By Mother’s testimony and the docume nts admitted into evidence by her counsel, it is clear that Mother was unwilling or unable to grasp the fact tha t Grandmother wasa real d anger to her children. From this evidenc e, it is cle ar that, if J.R. and P.E. were returned to Mother ’s custod

y, t hey would likely also be fac ed with a childhood of

abuse and neglect. By

clear and convincing evidence , the “persis tent cond

itions” g round for terminat ion of Mother’s pa

rental r ights is e stablishe d as well.

Once grounds for

terminating parental rights have been established, the State must show that termination of

the pare nt’s rig hts is in the child’s best interest. Tenn. Code Ann. § 36-1-113 (c)(2) (2001). The statute includes a non-exhaustivelist of nine factors courts are to consider in making this determination:
(i) In determining whe

ther termination of parental or guard ianship r ights is in the best interest of the ch ild pursua nt to this part, the court shall consider, but is not limited to, t he fol lowi ng:16

(1) Whether the pa

rent or g uardian has made such an a djustment o f circumstance s, conduct, or condit

ions as to ma

ke it safe and in the

child’s b est

interest to be in the home of the parent or guardian;
(2) Whether th

e paren t or gua rdian ha s faile d to effect a lasting adjustment after
reasona ble efforts by a

vailable social services agenc ies for such duration of time that lasting adjustment does not reasonably appear possible;
(3) Whether the parent

or guardian has maintained regular visitation or other contact with the child;
(4) Whether a

meaning ful rela

tio nsh ip has otherwise been established between the parent or guardian and the child; (5) The effect a chang e of caretakers and phy sical en vironmen t is likely to have on the child’s emotional, psychological and medical condition;
(6) Whet her th e paren t or gua rdian , or ot her per son re sidi ng with the par ent or guardian, has shown brutality, phy sical, sexual, emotional or psycholog ical abuse, or neglect toward the child, or another c hild or adult in the family or household;
(7) Whether the physical e nvironment

of the parent’s or guardian’s home is hea lthy and safe, whether there is criminal activity in the home, or whethe r there is suchuse of alcohol or controlled

substanc es as may

render the pare nt or gua rdian co nsistently unable to care for the child in a safe a nd stable manner;
(8) W hether the parent’s or guar dian’s mental and/or emotional status wo uld b e detrimental to the child or prevent the parent or guardia n from effectively

providing safe and stable care and super vision for the child; or
(9) Whether the parent or guardian haspaid chil d support c onsistent with the child support guidelines promulgated by the department pursuant to § 36-5-101.
Tenn. Code Ann. § 36-1-113 (i)(1)-(9) (2001). Virtually all of these factors indicate that termination of Mother’s parentalrights was in the best interest of J.R. and P.E. Mother hadmade little adjustment in her circumstances, showing that lasting adjustment“does not reasonably appear possible.” She failed to maintain regular visitation withJ.R. and P.E. The evidence indicated the lack of a meaningful re lationship between Mother and the children; indeed, even the sporadic visits from Mother resulted in turmoil and regression in the children. The evid

ence sho wed cle arly

that Grandmother, the perpetrator of the abuse which ledto the children’s removal from Mother’s care, r emained an integral

pa rt of Mo th er ’s li fe . A pp ar en tl y, withoutthe abilit

y to support he

rself and her chi ldren, Mo ther’s phys ical env ironment remained17

uncerta in and dependent onthe boy friend o r other p erson wit

h whom she

lived. Mot

her’s in ability to come to te

rms with Gr andmother’s abuse of her children left her unable to protect them and unable to “eff ectively provid[e] sa

fe and st able ca re and su pervision” fo r J .R . a nd P. E. Fi na ll y, Mother paid no ch

ild suppor t for her daught ers. Clea rly virtually all of the se fact

ors mitig ate in

favor of a find ing that terminat ion of Mother’s pa

rental r ights wa s in the ch

ildren’sbest inter

est.
Thus, even disr

egard ing evid ence wh ich could have be en deemed inadmissi ble hearsay

had objections to hearsay

evidence been permitted and properly ruled upon, the evidence supporting the trial cou rt’s dec ision is ove rwhelmin g. Unde

r these c ircumsta

nces, the decision to termina

te Mother’s parental rights must be affirmed.

The decisio n o f the trial court is affirmed. Costs are assessed ag ainst Appellant, Erika Ev er so n, fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y.

___________________________________ HOLL Y M. KIRBY, JUDGE