IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

On Briefs January 19, 2005 Session

STATE OF TENNESSEE DEPARTMENT OF CHILDREN SERVICES v.

DIANE YVONNE SANGSTER, ET AL.

A Direct Appeal from the Juvenile Court for Lauderdale County

No. J5-906 The Honorable Rachel J. Anthony, Judge

No. W2004-02060-COA-R3-PT - Filed February 4, 2005

This is a termination of parental rights case. The parents appeal from the order of the

Juvenile Court of Lauderdale County, terminating their parental rights. Specifically, Appellants

assert that the grounds of abandonment for failure to support and severe child abuse cited for

termination are not supported by clear and convincing evidence in the record and that termination

of their parental rights is not in the best interests of the child. Because we find clear and convincing

evidence in the record to support the trial court’s findings, we affirm.

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

W. FRANK CRAWFORD, P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER,

J. and HOLLY M. KIRBY, J., joined.

Barbara A. Deere of Dyersburg for Appellant, Lafayette Douglas Sangster

J. Barney Witherington IV for Appellant, Diane Sangster

Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond, Senior Counsel for

Appellee, Tennessee Department of Children's Services

OPINION

LaFayette Douglas Sangster and Diane Yvonne Sangster (together, the “Sangsters,”

“Respondents,” or “Appellants”) appeal from the termination of their parental rights to their child

L.S. (d.o.b. 3-3-98). L.S. has three half-siblings, T.T. (d.o.b. 8-5-93), B.T. (d.o.b. 10-10-96) and

D.T. (d.o.b. 3-3-98). On August 20, 2002, nine-year-old B.T. arrived at school with facial injuries

that included swelling of hislower lip, his nose, and his forehead, as well as bruises and scars on his

back and legs in various stages of healing. B.T., who wore a helmet as a result of a seizure disorder,

was transported by ambulance to MedSouth Healthcare. B.T. reported that his stepfather, LaFayette

Sangster, had hit him. Medical examinations revealed that D.T. and T.T. also had scars and bruises
See T.C.A. § 37-1-166(g)(4)(A) and discussion infra.

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 A probable cause hearing was waived by the parties upon an Agreed Order entered on November 14, 2002. 2

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on their backs and legs in various stages of healing. On August 22, 2002, the State of Tennessee

Department of Children’s Services (“DCS,” or “Appellee”) filed a “Petition for Temporary

Custody.” On that same day, the trial court entered a “Protective Custody Order.”

Diane Sangster initially denied any abuse. However, she later admitted that LaFayette

Sangster had injured B.T. by hitting him in the face and that she and LaFayette Sangster had both

administered whippings with a double leather carpenter’s belt. LaFayette Sangster admitted hitting

B.T. in the face with a weight belt. The Sangsters were arrested and charged with aggravated child

abuse.

On September 17, 2002, DCS prepared a Permanency Plan, which was signed by the

Sangsters. The Permanency Plan contained no responsibilities for the Sangsters and no services to

be provided by DCS. In an “Affidavit of Reasonable Efforts,” signed and filed on October 7, 2002,

DCS case manager Patricia Smith stated that DCS had not provided services to the family due to the

indication that there would be a severe abuse finding. The Permanency Plan was ratified by Order

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entered December 5, 2002.

 A final hearing on DCS’ “Petition for Temporary Custody” was held on October 7, 2002.2

On November 14, 2002, the trial court entered an “Order on Adjudication and Disposition.” “Upon

agreement of the parties,” the trial court found by clear and convincing evidence that the children

were dependent and neglected. The Order also reflects that the Sangsters stipulated to the following:

Having been represented by counsel and informed of his rights,

LaFayette Sangster stipulates to a finding that [L.S.] is a dependent

and neglected child, who has been severely abused pursuant to T.C.A.

37-1-102 (b)(21)(A), (B); that LaFayette Sangster knowingly failed

to protect said child from the abuse....

Having been represented by counsel and informed of her rights Diane

Sangster stipulates to a finding that [T.T., B.T., D.T. and L.S.] are

dependent and neglected children, who have been severely abused

pursuant to T.C.A. 37-1-102 (b)(21)(A), (B); that Diane Sangster

knowingly failed to protect said children from the abuse....

The trial court notes in this Order that the three oldest children, T.T., B.T., and D.T., had previously

been taken into DCS’ custody due to a similar incident in which LaFayette Sangster inflicted abuse

on these children. The trial court also imposed support obligations on the Sangsters. Effective

October 1, 2002, Diane Sangster was ordered to pay total child support of $780 per month. LaFayette
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Sangster was ordered to pay support of $300 per month for L.S.’s support, also effective October 1,

2002.

On July 22, 2003, DCS filed a “Petition to Terminate Parental Rights” (the “Petition”)

seeking termination of the Sangsters’ parental rights to L.S. As grounds, DCS alleged severe child

abuse pursuant to T.C.A. § 36-1-113(g)(4), noting that the trial court had found such abuse in its

November 14, 2002 “Order of Adjudication and Disposition.” DCS also alleged abandonment

pursuant to T.C.A. § 36-1-113(g)(1), asserting that the Sangsters had willfully failed to pay child

support. The Sangsters entered separate Answers to DCS’ Petition. She on September 11, 2003 and

he on January 12, 2004. Both denied the grounds relied upon by DCS in its Petition. On January

12, 2004, Diane Sangster also entered a Counter-Petition seeking visitation with L.S. On February

2, 2004, the Sangsters filed separate “Motion[s] for Extraordinary Relief and Memorandum of Law.”

These respective Motions read the same and, in relevant part, as follows:

1. Respondent[s] did plead guilty to child abuse charges in

Lauderdale County Circuit Court and did serve a jail sentence for said

charges.

2. On November 14, 2002, under the advice of [the Sangsters’

respective attorneys], Respondent[s] did stipulate to a finding of

severe child abuse, whereby this Court did enter an order reflecting

said stipulation on that same date.

3. Respondent[s] [were] unaware both at the time [they] pled guilty

and the time[they] stipulated to a finding of severe child abuse that

these concessions could result in the termination of [their respective]

parental rights.

4. Respondent[s] would neither have pled guilty nor stipulated to a

finding [of] child abuse had [they] known that termination of [their]

parental rights would likely result by [their] so yielding.

* * *

10. Respondent[s] did not stipulate to severe child abuse voluntarily

and with full knowledge of the direct consequences of [their]

stipulation.

11. Respondent[s’] stipulation[s] to severe child abuse w[ere] invalid

and should be set aside.

A hearing was held on April 19, 2004. Following that hearing, the trial court entered its

“Findings of Fact and Conclusions of Law and Order Terminating Parental Rights” (the “Final

Order”) on July 20, 2004. The Final Order reads, in pertinent part, as follows:
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11. Respondents Diane Sangster and LaFayette Sangster did not pay

court ordered support for [L.S.].... Both Respondents were aware of

their child support obligation. While under the support obligation

they were temporarily incarcerated, lost employment, incurred court

costs, fines , and probation fees, and lost personal property, but they

had not been incarcerated, incapacitated or restricted from working

by a medical physician for the four months preceding the filing of the

TPR petition. Respondent Diane Sangster admitted to both working

and receiving unemployment [compensation] during the same fourmonth period. She further testified that the support was taken out of

her wages and unemployment benefits; however, the NPSS screens

for the Department of Human Services do not reflect any payments

by her during this time. Respondent LaFayette Sangster

acknowledged that he had income during this time frame from

mowing lawns but did not pay his child support. Respondents

contend that they filed bankruptcy after [L.S.] and her siblings were

removed and thus [were] not able to pay child support.

Respondent[s’] bankruptcy status does not absolve them of their

obligation to pay support. Nor did Respondents provide any

information that they had included their child support obligation in

their bankruptcy. The Respondents’ failure to pay the court-ordered

child support for four months preceding the filing of the TPR petition

is willful.

* * *

CONCLUSIONS OF LAW:

* * *

2. There is clear and convincing evidence to terminate parental rights

pursuant to T.C.A. §36-1-113(g)(1), in that Respondents Diane

Sangster and LaFayette Sangster have willfully abandoned their

minor child, [L.S.], pursuant to T.C.A. § 36-1-102(1)(A)(i), by

willfully failing to provide support or make reasonable payments

toward the support of the child for a period of four months preceding

the filing of the petition.

3. There is clear and convincing evidence to terminate parental rights

pursuant to Tennessee Code Annotated § 36-1-113 (g)(4), in that

Respondents have been found to have committed severe abuse against

[L.S.] as defined in Tennessee Code Annotated § 37-1-102 by order

of this Court entered November 14, 2002.
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4. Termination of Parental Rights is in the best interest of the minor

child pursuant to T.C.A. 36-1-113.

The Sangsters appeal from the Final Order and raise two issues for review: (1) Whether

the trial court erred in finding that the State has proved, by clear and convincing evidence, the

grounds for termination of the Sangsters’ parental rights; and (2) Whether the trial court erred in

finding, by clear and convincing evidence, that termination of the Sangsters’ parental rights is in

the best interest of the minor child.

Since this case was tried by a court sitting without a jury, we review the case de novo

upon the record with a presumption of correctness of the findings of fact by the trial court. Unless

the evidence preponderates against the findings, we must affirm, absent error of law. See Tenn.

R. App. P. 13(d).

T.C.A. § 36-1-113(c)(Supp. 2004) governs termination of parental rights and requires that

such termination be based upon: 

 

(1) A finding by the court by clear and convincing evidence that the

grounds for termination [of] parental or guardianship rights have been

established; and 

(2) That termination of the parent's or guardian's rights is in the best

interest of the child.

Grounds for Termination

The trial court terminated the Sangsters’ parental rights on the grounds of abandonment and

severe child abuse, which are codified at T.C.A. § 36-1-113(g)(1) and T.C.A. § 36-1-113(g)(4)

(Supp.2004) respectively, to wit: 

(g) Initiation of termination of parental or guardianship rights may be

based upon any of the following grounds:

(1) Abandonment by the parent or guardian, as defined in §36-1-102,

has occurred;

* * *

(4) The parent or guardian has been found to have committed severe

child abuse as defined in §37-1-102, under any prior order of a court

or is found by the court hearing the petition to terminate parental

rights or the petition for adoption to have committed severe child

abuse against the child who is the subject of the petition or against
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any sibling or half-sibling of such child, or any other child residing

temporarily or permanently in the home of such parent or guardian;

T.C.A. § 36-1-113 (c) allows for termination of parental rights if any one of the grounds

outlined in T.C.A. § 36-1-113(g) are found by clear and convincing evidence, and termination is in

the best interest of the child. We have reviewed the entire record in this case and we find that the

record is replete with evidence to support the trial court’s finding that termination of the Sangsters’

parental rights is warranted on the grounds listed in the Final Order. We further find, in accordance

with the trial court, that termination of the Sangsters’ parental rights is in the best interest of this

child.

Abandonment Grounds

T.C.A. §36-1-102(1)(A)(Supp. 2004) defines “Abandonment,” in relevant part, as follows:

(1)(A) “Abandonment” means, for purposes of terminating the

parental or guardian rights of parent(s) or guardian(s) of a child to

that child in order to make that child available for adoption, that:

(i) For a period of four (4) consecutive months immediately

preceding the filing of a proceeding or pleading to terminate the

parental rights of the parent(s) or guardian(s) of the child who is the

subject of the petition for termination of parental rights or adoption,

that the parent(s) or guardian(s) either have willfully failed to visit or

have willfully failed to support or have willfully failed to make

reasonable payments toward the support of the child;

The trial court terminated both of the Sangsters parental rights to L.S. on the grounds of

abandonment for their failure to provide any child support in the four months preceding the filing

of the Petition. At trial, Diane Sangster testified that she had paid some support for L.S. through

wage assignment in the months immediately preceding DCS’ filing. In its brief, DCS states that

“[w]hile the trial court also terminated Ms. Sangster’s parental rights on [abandonment]

ground[s], the State has reason to believe Ms. Sangster’s testimony, although undocumented in

the record, that she paid child support via wage assignment during at least some of the relevant

period and [the State] will not therefore defend the trial court’s decision against her on this

ground.” Because DCS concedes that this ground is not applicable to Diane Sangster, we will

address only whether there is clear and convincing evidence to support termination of LaFayette

Sangster’s parental rights on this ground. We find that such evidence exists. Concerning his

support payments during the relevant four month period, LaFayette Sangster testified, in relevant

part, as follows:
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Q. So, during those months, four months [preceding the filing of

the Petition to Terminate], you [LaFayette Sangster] were

unemployed, you said?

A. Yes.

Q. Your wife testified that you helped her pay the bills.

A. Yes.

Q. And that she relied on your income during that time?

A. Pushing lawn mowers.

Q. So, you were able to make some money. You just testified that

you were unemployed.

A. Yes. I was just saying I wasn’t employed, you know, at a

factory or such. That’s what I’m talking about.

Q. Okay. So, you were making money during that time?

A. Yeah.

* * *

Q. So, you were able to work and did make money?

A. Just working yards.

Q. Did you pay any child support during that time?

A. No, ma’am.

By his own testimony, it is clear that LaFayette Sangster made some income during the four

month period preceding DCS’ filing and paid no portion of it toward the support of L.S. 

Grounds of abandonment vis a vis LaFayette Sangster are, therefore, met by clear and convincing

evidence.

Severe Child Abuse Grounds

T.C.A. §37-1-102(b)(21) (Supp. 2004) defines “Severe Child Abuse,” in relevant part, as

follows:
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(21) “Severe child abuse” means:

(A) The knowing exposure of a child to orthe knowing failure

to protect a child from abuse or neglect that is likely to cause great

bodily harm or death and the knowing use of force on a child that is

likely to cause great bodily harm or death;

It is clear from the statute and the relevant case law that a parent who knowingly permits

severe abuse is as culpable as the person who inflicts such abuse. See, e.g., Nash-Putnam v.

McCloud, 921 S.W.2d 170, 176 (Tenn. 1996) (holding that “[a]llowing a child to be abused is

egregious abuse”). In this case, the Sangsters, through counsel, stipulated that they had committed

severe child abuse and the trial court so found by clear and convincing evidence in its Order of

November 14, 2002, see supra. The Sangsters also pled guilty to criminal charges of child abuse and

served jail time for those offenses. Notwithstanding these stipulations, findings, and pleadings, the

evidence adduced at the hearing on DCS’ Petition clearly and convincingly supports a finding that

the three half-siblings of L.S. were severely abused at the hands of the Sangsters. The photographs

admitted as collective Exhibit 1 evince long-term and systematic beatings of these minor children.

The photographs are corroborated by the testimony of April Smith, the DCS case worker who was

initially called to the children’s school to investigate, and also by the testimony of Diane Sangster,

to wit:

Q. Ms. Sangster, do you believe that your husband abused your three

boys, or do you believe it was corporal punishment?

A. I believe it was corporal punishment that went out of hand. It

went out of hand.

Q. You can’t even acknowledge that it was abuse?

A. Well, it, you know, at the time I believed it to be corporal

punishment, but the way it’s, you know, the way it’s looked at now,

it’s abuse.

* * *

Q. I’m sorry. You said you now agree that it’s abuse?

A. Well, at the time, you know, at the time we thought that, you

know, that it was just corporal punishment.

But, you know, as we’ve had time to, you know, as we’ve

been away from the children and everything, we have had time to

talk, talk about our feelings and everything, you know.
 T.C.A. § 36-1-102(9) (Supp. 2004) defines “Aggravated circumstances” to include severe child abuse.

3

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It was abuse, but it was unintentional. It was unintentional.

It was unintentional.

Q. You said he [LaFayette Sangster] would go into a room by

himself, and he would–I believe your words–administer corporal

punishment, but it was unintentional. So, was it unintentional that

you characterize– 

A. It was unintentional abuse.

Q. Oh, okay. But he [LaFayette Sangster] intentionally hit the kids;

right?

A. He wasn’t trying to hurt the children. He was trying to administer

corporal punishment. He was– 

Q. So, you’re justifying what he did?

A. At that time I had justified it at that time.

This portion of Diane Sangster’s testimony not only corroborates the fact that LaFayette Sangster

abused these children; it also provides proof that Diane Sangster knew that he was beating the

children–a fact that makes her equally culpable under the statute as discussed above. 

In his brief, LaFayette Sangster argues that “L.S. showed no physical signs of abuse.” This

fact is unpersuasive under the statute, which clearly states that the ground is met when the abuse is

perpetrated upon “ the child who is the subject of the petition or against any sibling or half-sibling

of such child.” T.C.A. § 36-1-113 (g)(4). That requirement is clearly met in this case. 

LaFayette Sangster also contends that DCS failed to provide reasonable services in this case.

However, T.C.A. §37-1-166(g)(4)(A) (2001) states:

(4) Reasonable efforts of the type described in subdivision (g)(2) shall

not be required to be made with respect to a parent of a child if a

court of competent jurisdiction has determined that:

(A) The parent has subjected the child that is the subject of the

petition or any sibling or half-sibling of the child who is the subject

of the petition or any other child residing temporarily or permanently

in the home to aggravated circumstances as defined in § 36-1-102; 3
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Based upon the trial court’s finding of severe abuse in its November 14, 2002 Order, DCS is

statutorily absolved from providing such efforts to the Sangsters.

Based upon the foregoing, there is clear and convincing evidence in this record to support

the trial court’s finding that the Sangsters committed severe child abuse upon the half-siblings of

L.S. This ground is, therefore, met.

Best Interests

Having found that all of the grounds for termination listed in the Final Order are well 

supported by clear and convincing evidence in this record, we now turn to the question of

whether the evidence clearly and convincingly evinces termination to be in L.S.’s best interest.

T.C.A. §36-1-113(i) (Supp. 2004) reads, in relevant part, as follows:

(i) 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:

(1) Whether the parent or guardian has made such an adjustment of

circumstance, conduct, or conditions as to make it safe and in the

child's best interest to be in the home of the parent or guardian;

(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;

(3) Whether the parent or guardian has maintained regular visitation

or other contact with the child;

(4) Whether a meaningful relationship has otherwise been established

between the parent or guardian and the child;

(5) The effect a change of caretakers and physical environment is

likely to have on the child's emotional, psychological and medical

condition;

(6) Whether the parent or guardian, or other person residing with the

parent or guardian, has shown brutality, physical, sexual, emotional

or psychological abuse, or neglect toward the child, or another child

or adult in the family or household;

(7) Whether the physical environment of the parent's or guardian's

home is healthy and safe, whether there is criminal activity in the

home, or whether there is such use of alcohol or controlled substances

as may render the parent or guardian consistently unable to care for

the child in a safe and stable manner;
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(8) Whether the parent's or guardian's mental and/or emotional status

would be detrimental to the child or prevent the parent or guardian

from effectively providing safe and stable care and supervision for the

child; or

(9) Whether the parent or guardian has paid child support consistent

with the child support guidelines promulgated by the department

pursuant to § 36-5- 101.

In this case, the trial court made the following findings in its Final Order concerning best interests:

12. The Court finds that it is in the best interest of [L.S.] that the

parental rights of Respondents Diane Sangster and LaFayette Sangster

be terminated, because:

a) Respondents Diane Sangster and LaFayette Sangster have failed to

make an adjustment of circumstance, conduct, or conditions as to

make it safe and in the child[’s] best interests to be in the home of

Respondents. DCS made clear to Respondents, in August 2002, their

intention to seek a severe abuse finding and not return [L.S.] to them.

Respondents participated in a permanency plan staffing and signed in

agreement with the plan wherein the goals of the plan were Adoption

and Exit Custody to Live with Relative. Pat King, the initial home

county case manager assigned to [L.S.], was the DCS employee who

participated in the staffing. Ms. King testified that she made clear

during the staffing to the Respondents that because of the severity of

the abuse DCS did not intend to return [L.S.] to them and would not

provide them services. Respondents Sangster were not prohibited

from obtaining services on their own. Respondents are no strangers

to dependency and neglect/abuse issues, as set out herein above.

Respondent Diane Sangster’s three sons were removed from her

custody by DCS in Haywood County as the result of Respondent

LaFayette Sangster’s infliction of physical injury, and he was

incarcerated. While Respondents offered proof of attempts at

counseling with their pastor (who is not a licensed therapist), they did

not disclose to the pastor that this was a repeat instance of abuse and

evinced minimal, if any, improvement or adjustment as a result of

said counseling.

b) At the time of the physical abuse against Respondent Diane

Sangster’s children, Respondents were residing in the same house.

Pictures of the boys’ injuries depict both brutality and physical abuse

by Respondent LaFayette Sangster against [L.S.’s] siblings. Both
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Respondents pled guilty to criminal charges stemming from the

instant abuse.

c) Respondents have failed to pay their court ordered child support.

Like the trial court, this Court is particularly concerned with the repeat nature of the abuse

against L.S.’s half-siblings. There is no evidence in this record, other than their own testimonies

and the fact that they have completed an anger management course, to support a finding that the

Sangsters have the skills necessary to control and parent these children without resorting to their

pattern of violence. Given the severe and brutal nature of the abuse inflicted upon L.S.’s halfsiblings (as evinced by the photographs and testimony), it would be a chance too great to risk to

place any child back into this home. From the record as a whole, we find that there is clear and

convincing evidence to support the trial court’s finding that it is in L.S.’s best interests to

terminate the Sangsters’ parental rights.

For the foregoing reasons, we affirm the Final Order of the trial court, terminating the

parental rights of Diane Sangster and Lafayette Sangster to L.S. Costs of this appeal are assessed

one-half to Appellant Diane Sangster and her surety and one-half to Appellant LaFayette

Sangster and his surety.

__________________________________________

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.