### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON January 25, 2001 S ession
IN THE MATTER

OF D.I.S.,

D.O.B. 10/8/198

7
An Appeal from the Juvenile Court for Shelby County No. B3427 George E. Blancett, Special Judge

No. W2000-00061-COA-R3-CV - Filed May 17, 2001

This case inv olves th e termination of parental rights. The juvenile court, sua sponte , dismissed the petition to terminate the parental rights of the mother at the e nd of the petitioner’s proof. The petitioner appeals. We affirm, finding that there is sufficient evidence to support the trial court’s finding t h at termination of t he mother’s pare

ntal rights would n

ot be in the child’s

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

H OLLY K IRBY L ILLARD , J., delivered the opinion of the court, in whichW. F RANK C RAWFORD , P.J., W.S., and A LAN E. H IGHERS , J., joined.

Nanette L. Wesley, Georgia A. Robinette, Memphis, Tennessee , for the appellant, Court Appointed Special Advocate.

Debra N. Brittenum, Webb A. Brewer, Nancy P. Kessler, Memphis, Tennesse e, for the appellee, Brenda Smith.
OPINION

This case involves the termination of parental rights. The child involved, D.I.S. (“D.I .”), born October 8, 1987, is the daughter of Brenda Guy Smith (“Mother”).

The first petition to remove D.I. from Mother’s custody

was filed on April

11, 1991, by Inez Denson, a non-relative. The petition sought to remove D.I., as well as her two older

sisters, Tameka Nicole Myles (“Ta

meka”), born Apr

il 19, 1980, and Nek

eisha Mi gnon

Anderson (“Nekeisha”), born Dec ember

4, 1976. The first petition resulted in Nekeisha being removed to the custod y of Ms

. Denson while Tameka and D.I. remained in Mother’s custody . On June 11, 1992, a second petition to remove D.I. from Mother’s custody was filed. T his pe tition w as filed by Sandy Knowlton. Knowlton was listed as a

non-relative, but was later identified as D.I.’s father. The record is unclear1 In 1996, the Tenness ee Department o

f Children’s Servi

ces was establish

ed in an effort to consolidate

the services provided to children by multiple state departments, including those provided by the Department of Human Services (“DHS”). See 1996 Tenn. Public Acts 1079, § 3. In this case, we refer to DCS, even though D.I.’s case was handled by DHS prior to 1996.

2 The appellant in this ca

se is CAS A of Mem phi s an d Sh elb y Cou nty, Inc., a Tennessee notfor-profit corporation auth

orized and appointe

d by the Shelb

y County Ju venile Court pursu

ant to Tennessee Code Annotated § 37-1-149(b)(1) to serve as an advoca te f or children who are alleged to be dependent

and neglected

within the meaning of Tennessee Code Annotated § 37-1-102(b)(12).

-2- whether D.I.’s father is Knowlton or another man name d Herman Guy . Knowlton’s petitio n to remove D.I. from Mother’s custody was subseque ntly dismissed. The third petition to remove D.I. from Mother’s custody was filed with the Shelby

County Juvenile Court on February 21, 1995 by Mother’ s sister, Deneise Holmes. The third petition sought to r emov e both D.I. and Tameka, alleging that they were dependent and neglected. On April 19, 1995, th e Juvenile Court found that D.I. and Tameka were dependent and neglec ted within the meaning of

Tennessee Code Annotated § 37-1-102(b)(12) and placed them in foster care. Mother did not attend the hearing because, at the time, she was incarcerated for writing bad checks.

As of May

22, 1995, D.I.

was first placed

witha non-relative family friend, and the goal was to return D.I. to her Mother’s care. By that time, D.I. had made several suicide attempts, as the re

sult of an incident several years earlier in which she was raped by Mother’s boy friend. Under D.I.’s plan of care, Mother was to establish a regular visitation schedule, complete parent ing classes, est

ablish a safe and stabil

e home environmen

t, obtain an alcohol and dr

ug abuse assessment, and r

emain in contact with the Department of Children’s Services (“DCS”). 1

On October 22, 1996, the Juvenile Court recommended that D.I. rem

ainin foster care, and that DCS change its

goal to adoption. On March 30, 1999, the Court Appo inted Special Advo

cate (“CASA”) 2 filed a petition to terminate the parental right s of Mo ther, Knowlton, Guy, and “any unknown father” in D.I.. The petition alleged that D.I. w as the minor child of Mother, and the “legal child” of Herman Guy. It noted tha t no one w as listed as D.I.’s father on her birth certificate, but stated that Knowlton had been named as D.I.’s “putative father.” On June 2, 1999, the Juv en ile Courtentered an order terminating the parental rights of Guy , Knowlton, and “any unknown father” in D.I.. Their parental rights are not at issue in this appeal.

On August 2, 1999, Nekeisha filed a petition seeking to have D.I. removed from foster

care and asking that she be granted custody of D.I .. This petition was denied.

A hearing on

CASA’s petition to terminate Mother’s parental rights was held on November 18 and 29, 1999, by

the Juvenile Court fo

r Shelby Count

y, with Speci

al Judge Georg

e E. Blancett pr esid ing. At the hearing, the DCS supervisor f

or D.I.’s ca

se, Linda Willia

ms, testified on beh

alf of CASA. She testified that DCS first received a referral in December 1991 indicating that D.I . had b een sexually abused by Mother’s boy friend. The matter had been investigated, and Mother’s-3-

boyfriend was convicted

and in jail. D.I. remained in Mothe r’s home, and D.I

. was referre

d to DCS for counseling. D.I

.’s mental angui

sh over the abuse

apparently

resulted in her a

ttempted suicide in February 1992 by overdosing on Tylenol. In March 1992, D.I . again attempted suicide by ingesting
an elderly relative’s medication. D.I. attempted suicide a third time, in June 1994, after seeing the abuser, Mother’s former

boyfriend, in her neighborhood. After this incident, DCS referred D.I. and Mother to the Memphis

City Schools Mental Health Center for psychologic al counseling. Mother never followed through with the counseling.

In February 1995, DCS learned that D.I. w as living with Otis Smith, her paternal step-uncle. In April1995, Mr. Smith relinquished physical custody of D.I. back to Mother. DCS then lost track of D.I.’s whereabouts. D. I. was lega lly placed i

n DCS custody on

April 19, 1995, and

DCS tried to locate D.I. and Mothe

r. D.I. was f

inally lo cated at a local elementary school, where she had been enrolled by

a friend of Mothe

r’s. DCS learned t

hat Mother was inc

arcerated in A

rkansas.

On June 16, 1995, DCS met w ith Mother while she w

as incarcerat

ed in Arkansas to explain to her what she would need to do to regain custody of D.I .. Under the planof care, Mother needed to maintain written c

ommunication with

D.I. while she was incarcerated and, once relea sed, she was to attend and complete par enting classes,

obtain a permane

nt home, obtain

alcohol and drug

abuse counselin g, and maintain conta ct with DCS. The record is unclear as to when Mother was released from jail. In November 1995, however, she calledDCS and asked for v isitation with D.I

.. DCS told Mother that she could have onl

y supervise

d visitation, beca

use Mother had not

obtained drug a

buse treat ment and had not obtaine

d a permanent re

sidence. Mother d

id not make a sched

uled visit through DCS in1995. However, she spent Thanksgiving with D.I. at her mother’s home, and visited with D.I. at Mo

ther’s sister’s h

ome the following

Sunday. Mothe

r did not comply

with any of the remaining conditions in the 1995 plan of care. During 1996, Mother visited D.I. occasionally. However, some of the scheduled visits were canceled becau se Mot her wa s agai n inca rcerat ed. Un til t his t ime, D .I. had been placed with family members, but in March 1996, she was placed in the home of foster mother Geraldine Perkins. After D.I. was placed with Pe

rkins, on severa

l occasions Mother

did not return D.I

. at the designa

ted time
or to the designated place after her visits, sometimes keeping D.I. over night withou t informin g Perkins. Consequently, DCS told Mother that she could not have unsuperv ised visits with D.I.. While D.I. was livin

g with Perkins,

Mother called he

r on the telephone

frequently

, even though DCS had told Mother to direct her calls to DCS.

On November 19, 1996, a second plan of care was approved. The second plan had similar requirements

to the first one, e

xcept instead of wr

itten communicatio

n with D.I., Mot

her was to maintain regular visitation with her. Mother completed parenting classes, but did not meet any other conditions under this

plan of care. In September 1997, a third plan of care was appr oved. The third plan h ad the same requ irements as the se cond one. DCS had no

record of Mother

visiting D.I.

in 1997, but did have a record of D.I. visiting with one of her sisters. Mother told DCS that she had
a permanent, stable home, but no verification of her address was obtained. The record has n o indication that Mother complied with any of the remaining conditions under this third plan of care.-4-

In September 1998, a fourth plan of care was approved. For a su bstantial period o f time while this plan of care was in effect, Mother was incarcerated, and the record does not indicate any compliance wit h the fourth plan of care. In September 1999, a fifth plan of care w as approved. Under this plan, Mother was required to maintain a permanent residence, obtain alcohol and drug abuse treatment,obtain employ ment, and enroll a

nd participate in

counseling to ad

dress the issues surrounding D.I.’s sexual abuse and issues from her own past. Under the fifth plan, in

September 1999, Mother obtained employment. During 1999, M other visit ed D.I. several times, and bought her gifts, clothing, and school supplies. DCS had no indication that Mother fulfilled any of the other requirements of the plan of care.

Williams testified that D.I.’s sisters, Nekeisha and Tameka, had contacted DCS sev e ral times while D.I. was in foster care, and that they askedto vi sit wi th her . Neke isha a sked D CS abo ut D.I. coming to live with her, and filed a petition seeking custody of D.I

.. Geraldine Perkins testified that Mother called D.I. sporadically, sometimes calling two or three times in

a short period of t

ime and then not ca

lling for months a

t a time. Perkins sai

d that D .I. often became frustra

te d when Mother made

promises to her tha

t she did not keep. A

s a result, Perkins said, D.I. had a “split personality.” D.I. was an honor roll student, active in school a ctivities and a majorette, but w

hen her Mother dis

appointed her, D.I. would

act out, harming her

self or others. Perkins testified that Mother never paid support for D.I. and she r

arely gave her gifts for her birthday
or other holiday

s. Despite this, Per

kins te stified , D.I. loved Mother and wanted to continue a relationship with her.

Beth Hand, a licensed clinicalsocial worker with the Memphis City School system, testified on behalf of CASA. Hand testifiedthat D CS ref erred D.I. to her in 1995, and th at she helpe d D.I. address issue s regarding her sexual abuse, maternal abandonment, and adjustment to her foster home

. Handtestified that

Mother was invited to participate in the counselingwith D.I., but never did. Hand testified that D.I.’s problems regarding Mother resulted in her bedwetting, and

that these proble

ms became worse w

hen Mother was in c

lose contact with

D.I.. She acknowledg

ed that D.I.’ s anxiety stemmed from the lack of

time that Mother spent with her. Hand said that D.I. loved her Mother and wantedmore phone contact and more visits with her. Hand was asked how D.I. felt

when she could not talk to Mother. Hand said:

Yes. [D.I.] would

feel sad. Her mom – according to [D.I.], her mom made promises to her to call, to visit, to bring her a gift, to whatever, and then it wouldn’t happen. So [D.I.] would start feeling sad and worried and wondering what

’s happened with her mom. And she might ta

lk to her sister sometimes and her sister would reassure her that mom was okay. And then she would start feeling angry that her mom hadn’t calledor hadn’t been in touch with her. Andthen her mom would call, and then we would start this cycle all over again.-5-

On December 2, 1 999, the he aring r e sumed. The petition er closed it s proof and J udge Blancett said it was “time to hear the response on behalf of the mother. . . .” At this point, Jud g e Blancett sua sponte

dismissed CASA’s pet

ition to terminate

Mother’s parental rights, without hearing proof from Mother. In remarks from the bench, Judge Blancett acknowledged that there was evidence that Mother did not fulfill her requirements under DCS’s plans of care and that she did not support D.I.. Howeve

r, he observed th

at when a child ha s reached the a ge of twelve, a

nd there is evidence of a strong bond b etween the chil

d and the natural parent, “there’s a possibility of more detriment that could break that

relationship or child . . . and it may be incumbent upon those charged withthat respon sibility to work towards that goal of reunification of the family as opposed to . . . terminating parental rights.” Judge Blancett found that termination of Mother’s parental rights was notin D.I. ’s bes t int erest , and o rdere d that D.I. remain in the custody of DCS “under a strict regimen for reunification [of] the child . . . with the p arents and the siblings in the most opportune and expedited time.” He entere d an order dism

issing CASA’s petition. From this order, CASA now appeals.

On January 25, 2001, Mother filed with this Court a motion to a

consider post-jud

gment fact,
nam ely, that D.I.’s foster mother, Geraldine Perkins, died in December 2000. On March 23, 2001, the record on appeal was supplemented to include this fact.

On appeal, CA SA raises two issues. CASA argues first that the juvenile court erred by dismissing its petition to terminate Mother’s parental rights whe n there was clear and convincing evidence that Mother willful ly failed to v

isit D.I., prov

ide for her suppo

rt, or provide sexua

l abuse counseling for

her during the four years in which D.I. was in DCS custody. CASA also argues that the juvenile court erred by dismissing its petition sua sponte without permitting

CASA to cross examine Mother.

We address first

CASA’s argument that thejuvenile court precluded it from cross-examining Mother by dismissing CASA’s petition at the conclusion of CASA’s proof. CASA ap parent ly anticipatedthat Mother would testify on her own behalf

and that CASA would h

ave the opportuni

ty to cross-examine her during Mother’s proof. However, the juv enile court waite

d to rule until

CASA concluded

its proof. CASA coul

d have called Moth

er as a witness during its case in chief, but chose not to do so. This arg

ument is without meri

t. We next consider CASA’s argument that the juvenile court erred in dismissing its petition because the evidenceprovedthe statutory grounds to support the termination of Mother’s parental rights. Parents have a fundamental right in the care, custody, a nd control of

their childr en. See Stanley v. Illinois , 405 U.S. 645, 651-52 (1972); Nale v. Robertson , 871 S.W.2d 674, 678 (Tenn. 1994). This right is not

absolute, however, and may be te rminated in certa

in limited circumsta

nces. See In re Swanson , 2 S.W.3d 180, 187-88 (Tenn. 1999).

In Tennessee, the termination of parental rights must be based upon (1) a finding by clear and convincing evidence that one or more of the statutory grounds for ter mination of

parental rights have been established, and (2) a finding that the termination of the parent ’ s rights is in the be st interest-6-

of the child. See Tenn. Code Ann. § 36-1-113(c) (Supp. 200 0). See also In re M.W.A., Jr. , 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). Therefo re , even where there is clear and convincing evidence that one or m ore of the st atutory gr ou nds liste d in Tennes see Code Ann otated § 36 -1-113(g) exists, the petitioner, CASA, must also establish that the termination of parental rights would be in the child’s best inter

est. In this

case, the juvenile court’s dismissal of CASA’s petition was clearly premised on its find

ing that terminat

ion of Mother’s pa

rental rights

was not in D.I.’s best

interest. Judge Blancett stated that even though there was evidence of abandonment and evidenc e that Mother had failed to

fulfill the requirements of the plans of care, he did not find that the termination of Mother’s parental rights was in D.I.’s best interest.

CASArightly notes that there is abundant evidence of statutory grounds for terminating Mother’s parental rights. Had the trial court found that termination of Mother’s parental rights was in D.I.’s best in

terest, there wa

s evidence to

support su ch a finding. However, the trial court listened to the t est imo ny o f CASA’s witnesses, the DCS supervisor, Linda Williams, D.I.’s foster mother Geraldine Perkins, and the school social worker who counseled D.I., Beth Hand. From the testimony of all of these witne

sses, it is clear that D.I.’s relationship with Mother is a deeply troubled one, and the source of great anguish for D.I. D.I .’s heartache

over her mother a

ppears to stem from her love for Mother and her desire for a better relationship with Mother, j u xtaposed against t he inevitable disillusionment when Mother agai n fai ls h er. T he t ria l ju dge c ons ide red t his tes tim ony, considered D.I.’s age, 13 ye

ars old, and consi

dered as well he

r relationship with

her grown sisters, one of whom has sought custody of D.I. Unfortunately , this is the type of situation for which the legal system has
no good solu

tion. U nder these circ

umstances, we ca

nnot find that the ju

venile court err

ed in concluding that terminatio n of Mother’s parental rights was not in D.I.’s best interest, and consequently

in dismissing CASA’s

petition to termina

te Mother’s pare

ntal rights.

The decision o f the tr

ial court is affirmed. Costs shall be taxed to the Appellant, Court App oin ted Spe cia l Ad voc ate , an d it s su ret y, fo r wh ich exe cut ion may i ssu e if nece ssa ry.

___________________________________ HOLLY KIRBY L

ILLARD, JUDGE