IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

October 1, 2012 Session

IN RE: ZACHARIAS T. M., ET AL.

Appeal from the Juvenile Court for Blount County

No. 20027 William T. Denton, Judge

No. E2012-00920-COA-R3-PT-FILED-NOVEMBER 13, 2012

The State of Tennessee Department of Children’s Services (“DCS”) filed a petition in

February of 2009 seeking to terminate the parental rights of Kimberly M. (“Mother”) to the

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minor children, Zacharias T.M., Isaiah K.M., Ashley M.M., Chelsea M.M., Sierra C.M., and

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Brittany N.M. (“the Children”). After a trial, the Juvenile Court terminated the parental

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rights of Mother to the Children after finding that grounds for termination pursuant to Tenn.

Code Ann. § 36-1-113(g)(1) and (g)(3) and Tenn. Code Ann. § 36-1-102(1)(A)(ii) had been

proven by clear and convincing evidence, and that clear and convincing evidence had been

shown that it was in the Children’s best interest for Mother’s parental rights to be terminated.

Mother appeals to this Court. We affirm.

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

Case Remanded

D. MICHAEL SWINEY,J., delivered the opinion of the Court, in which HERSCHEL P. FRANKS,

P.J., and CHARLES D. SUSANO, JR., J., joined.

The petition also sought to terminate the parental rights of the legal or putative fathers, Kevin M., 1

Robert H., Robert S., and Avery H. The Juvenile Court terminated the rights of these four fathers to Ashley

M.M., Chelsea M.M., Sierra C.M., and Brittany N.M. None of these fathers are involved in this appeal. See

footnote 2 in this Opinion for additional details. 

The two oldest children, Zacharias T.M. and Isaiah K.M., were removed from Mother’s custody at 2

the same time as their four younger half-siblings. They spent some time in DCS custody and then exited

custody to live with an uncle who resides in another state. The Juvenile Court did not terminate parental

rights with regard to either Zacharias T.M. or Isaiah K.M., and these two children are not involved in this

appeal.

When we refer to “the Children” in this Opinion we refer only to Ashley M.M., Chelsea M.M.,

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Sierra C.M., and Brittany N.M., not to Zacharias T.M. or Isaiah K.M. At times within this Opinion we refer

to the children individually by their first names.
Sherif Guindi, Knoxville, Tennessee, for the appellant, Kimberly M.

Robert E. Cooper, Jr., Attorney General and Reporter; and Joshua Davis Baker, Assistant

Attorney General for the appellee, State of Tennessee Department of Children’s Services.

OPINION

Background

The Children were removed from Mother’s custody and taken into State

custody in August of 2007 and have been in foster care continuously since that time. The

Juvenile Court adjudicated the Children dependent and neglected in January of 2008. On

February 12, 2009, DCS filed the petition seeking to terminate Mother’s parental rights to

the Children.

The case proceeded to trial in March of 2012. Mother did not appear at the

trial. At the beginning of the trial, Mother’s counsel moved to continue because Mother had

not arrived. The Juvenile Court denied the motion. After testimony had begun, Mother’s

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counsel received a message from Mother stating that Mother was in a hospital emergency

room where she had been taken by ambulance because she was having chest pains. Mother

did not tell her attorney the name of the hospital. Because Mother resided in Blount County

at that time, efforts were made to contact the two local hospitals, UT Medical Center and

Blount Memorial Hospital, and it was discovered that Mother was not a patient at either of

those facilities. Mother’s counsel then renewed her motion to continue. The Juvenile Court

denied the motion but stated that if Mother provided some documentary proof that she had

been in the hospital with a medical emergency during the hearing the Juvenile Court would

entertain a motion to set aside. Mother never provided any such proof.

Anna Lahrs, a case manager with Smoky Mountains Children Homes, testified

at trial that she has been working on a project in which contract case managers work with

DCS. Ms. Lahrs has been the case manager for the Children since October of 2011.

Ms. Lahrs explained that the Children were removed from Mother’s custody

due to lack of supervision, environmental neglect, and educational neglect. Chelsea, who

was around four years old at the time, was found approximately three-fourths of a mile from

Mother’s house in a neighbor’s house. Because Chelsea did not know where she lived, the

The case was tried before a Magistrate, and the Juvenile Court subsequently ratified and confirmed 4

the Magistrate’s findings of fact and conclusions of law. For purposes of simplicity only, we refer in this

Opinion to the trial court as the “Juvenile Court.”

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neighbor called the police. Mother did not contact the police until Chelsea had been missing

for two hours. Child Protective Services went to Mother’s home after this incident. Ms.

Lahrs testified:

When CPS went to the home, all the family members were sleeping in one

room in the living room on mattresses on the floor and the trailer was a

burned-out trailer.

There was lots of trash everywhere and the house smelled of cat urine

and was infested with flies.... The two school-aged children in the home were

not registered for school and there had been previous instances of truancy.

Several permanency plans were developed for the Children. The first

permanency plan was developed in October of 2007, and Mother was present for the

development of that plan. The first permanency plan required Mother to maintain

appropriate housing for at least six months, obtain a legal source of income, obtain and

maintain stable transportation, resolve her legal issues and not incur any new charges, attend

parenting classes, and complete a mental health assessment. Ms. Lahrs testified that Mother

did complete some of these tasks.

When asked about what DCS did to assist Mother, Ms. Lahrs testified:

The case manager at the time did numerous home visits at the home. The

home that she was actually in at the time of removal, she did not live in after

that. She was evicted shortly after the removal of the children from that home.

So then she had a period of time where she lived with her parents and

during that time, the Department helped her with applications for subsidized

housing and gave her resources for subsidized housing and the resource that

also has homemaker services.

And then the Department also supervised visitationsin her home to help

address any safety hazards.... The Department helped supervised [sic]

visitation and then they also submitted a request for therapeutic visitation

through Florence Crittenton who provided therapeutic visitation and help with

transportation and also information on safety and nutrition.

DCS also assisted Mother in obtaining a mental health assessment.

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Ms. Lahrs testified that the second permanency plan, created in May of 2008,

contained all of the same requirements as the first permanency plan, and DCS also asked

Mother to provide proof of employment within two weeks because Mother claimed she had

employment but had no documentation of that fact. Mother was not able to maintain that

employment.

A third permanency plan, created in August of 2008, contained the same

requirements as the previous plans, and DCS also asked Mother to provide a new car

insurance card. Mother did provide DCS with a temporary insurance card.

Ms. Lahrs explained that when the Children came into State custody in August

of 2007, Mother was not employed. Mother later became employed. DCS obtained a check

stub for September 30, 2007 for Mother’s employment with Laws Brickmill Market. This

is the only check stub that DCS has for Mother from this employer. Mother began working

for Cargo Oil on December 6, 2007. Mother’s employment with Cargo Oil ended in

February of 2008. Mother then was unemployed until April of 2008 when she worked half

a shift at Weigels. Mother was rehired at Cargo Oil in December of 2008. Cargo Oil closed

in November of 2009, and Mother’s employment with them ended at that time. DCS has one

pay stub from the Knoxville Airport Hilton for Mother from July of 2010. DCS is not aware

of any period of time when Mother was physically incapable of working and also is not

aware of any period of time when Mother was hospitalized or involved in an accident and

unable to work. During the period of time from November of 2008 through February of

2009, Mother was not in jail. Ms. Lahrs testified that since February of 2009 Mother has not

been able to consistently maintain either housing or employment.

When asked about a trailer Mother had lived in since the Children came into

State custody, Ms. Lahrs testified:

She did not have an appropriate amount of beds in the home.

She was working on getting beds before we could look at placing the

kids there and also there was [sic] some safety issues with some with [sic]

railing and safety latches and also some hazards to exits being blocked that

needed to be corrected.

And she did work on correcting those, but then she got evicted from the

home.... In that home [Mother] was asked if she needed beds and her

response was that they were coming and that she had already had bunk beds.

She was just waiting to get them out of storage.... When the case manager had

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gone out there and noticed some of those problems, [Mother] was told how she

could fix them in order for them to be safe for the children.

And she did so. She fixed the safety latches and the railing was also

repaired.... I think there was a crib and some other things that were blocking

exits and those were removed.

Ms. Lahrs testified that Mother lived in this trailer from December of 2007

until June of 2008 and stated: “that was the longest she had lived anywhere.... [A]nd then

once she had fixed the safety concerns, she got evicted.” Ms. Lahrs further stated: “she

didn’t have stable employment ... [a]nd she also didn’t have car insurance or a transportation

plan.” Mother did obtain a van, but she did not maintain insurance on it. Ms. Lahrs stated:

“[Mother] never had a problem obtaining a house or obtaining a job or obtaining

transportation. Her problem was maintaining it.”

At the time of trial Mother lived in a two bedroom apartment with a man.

Mother and the man she is living with have not cooperated with DCS to allow DCS to

ascertain if this man is an appropriate person to be around the Children.

Ms. Lahrs testified that Mother has not demonstrated the type of parenting that

would indicate that Mother has corrected the lack of supervision that led to the removal of

the Children from her custody. Ms. Lahrs testified that during supervised visitations: “it

takes more than just [Mother]. We have to have two other supervisors or she lets the children

walk outside, she would - - it’s just - - it’s hard for her to keep her eyes on four children at

one time.”

Ms. Lahrs testified that she has not seen any evidence that would make her

believe that Mother has corrected the conditions of her housing and her parenting abilities

in order to ensure the safety of the Children. Ms. Lahrs believes that the Children would be

at risk of being dependent and neglected if returned to Mother. Ms. Lahrs testified:

The children have been in care for over four years now and it would be in their

best interest to obtain permanency and that cannot be done with parents’ rights

in tact [sic] because that’s been the plan from when the kids came in in August

and that has not - - the original reasons for custody have not been remedied.

Ms. Lahrs testified that the Children do not ask about Mother. When Ms. Lahrs initiated a

conversation about Mother, only one of the Children expressed an interest in visiting Mother.

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Since the Children were taken into State custody, Mother has had

approximately 75 visits with them. Ms. Lahrs testified that “for the most part” Mother

visited the Children consistently. Mother’s last visit prior to the trial in March of 2012, was

in January of 2012. Three visits were scheduled between that January visit and the time of

trial, but Mother failed to show up at these visits. When asked if Mother provided an

explanation for missing the visits, Ms. Lahrs testified:

She - - the one in February she did. She called the day before. No. She called

the morning of and said that she was sick.

And then the next one she had called and said that she forgot when it

was and it was actually that day and she said that she couldn’t make it.

And I offered to pick her up because she said she didn’t have a ride and

that’s why she couldn’t make it. And she said she didn’t have food for the kids

and I said, “Well, that’s okay. We can do that.”

And then she said, “Well, I just need to have it another day.” And so

I scheduled it for this past Wednesday and she didn’t show and I haven’t heard

from her.

In October of 2010, Mother was exercising unsupervised visitation with the

Children until an incident occurred. Ms. Lahrs explained:

There was in incident in October of 2010 where the mother - - her behaviors

were erratic and it was when she was dropping off the kids to the foster parent.

And her behaviors become so out of control that the police were called.

And she had some medication that she would not give to the children and so

they believe that she was under the influence of something.

She was subsequently arrested for that and that’s when unsupervised

visitation ended.

As a result of the October 2010 incident, Mother was charged with child abuse and neglect.

Mother pled guilty to attempted child abuse. Mother was charged with driving under the

influence in September of 2011, and she pled guilty to this charge.

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Kim Spenser , a CASA worker assigned to Mother and the Children since

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February of 2008, testified at trial. Ms. Spenser testified:

In my very, very first meeting with [Mother], the issue of her employment

came up and she said that she was employed at Cargo.

And I asked how many hours a week she was working. She would not

reply. And so I asked her several more times to try to get her to tell me how

many hours she was working and subsequently found out that she had been let

go and she wouldn’t let us know that.

There were several other instances when Mother reported that she was employed, but Ms.

Spenser would discover when she called the employer that Mother actually was not

employed.

Ms. Spenser was asked about Mother’s response to questions from DCS about

whether Mother needed assistance, and Ms. Spenser stated:

That she did not need help, that she would find it on her own, she had it taken

care of, she was moving into a place.

Frequently, she would say, “I found a place.” And I’d say, “Where are

you living?” “I found a place.” And I’d say, “What’s the address?” “Well,

I don’t have it with me.”

“Well, will you call me with it?” “Yes.” And then she wouldn’t. And

several times when I would try to get the name of the landlord, she would say

I don’t have it with me.

And I might even be in her house and she’d say she didn’t have it with

her and couldn’t provide me with the name or telephone number of anyone that

I could contact to verify that she was looking for a place or found a place to

live.... She always would say my brothers [sic] going to come and do that,

I’ve got a bed coming, I’ve got this. She always said she had it handled.

Ms. Spenser’s last name is spelled as “Spenser” at some places in the record and as “Spencer” in

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others. For purposes of simplicity only we utilize the spelling that appears in the Magistrate’s Final

Judgment of Termination of Parental Rights and Full Guardianship, which was ratified and confirmed by the

Juvenile Court on May 4, 2012 nunc pro tunc to April 10, 2012.

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Ms. Spenser testified that Mother flatly refused offers of assistance and to Ms. Spenser’s

knowledge never accepted an offer of help.

Ms. Spenser testified about the incident that occurred in October of 2010 that

led to the end of Mother’s unsupervised visitation with the Children stating:

[Mother] had a weekend visit with [the Children] and when they - - when she

got [the Children], [the Children] and her and a friend of hers were going over

to another friends [sic] house.

And [Mother] was acting very erratically and when they got to the other

friends [sic] house, [Mother] pulled her pants down in the middle of the yard

and mooned everybody in sight and that’s when the police were called and

arrested her.

The youngest - - I believe it was Sierra, had been to the doctor that day

and had gotten an antibiotic. And when the police came and arrested

[Mother], she would not give up that drug, that antibiotic to go - - because the

kids were going back to their foster mother and she was going to jail.

And that was one of the things that led to her being charged with abuse

of children because she wouldn’t give up that antibiotic. So the child went the

weekend without having that drug.

When asked if Mother had explained why she would not give up the medication, Ms. Spenser

stated: “That she had paid for it and therefore she was going to maintain control of it.”

Ms. Spenser testified about the time period when Mother was having

unsupervised visitations with the Children stating:

I usually try to stop by the house a couple times each weekend just to check on

how things were going. In my observation [Mother] was not managing [the

Children] well.

I stopped by once and I can give you the date. October the 9th, 2010.

Three of the girls; Chelsea, Brittany, and Ashley were in the tub playing. And

the tub water was running and the water - - the tub was completely full.

So every time the girls would move, the water was flowing out onto the

floor. And [Mother] did not seem the least bit concerned that the bathroom

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was being flooded and she didn’t tell the girls to turn off the water or anything.

She just let them continue on.

At the same time, Sierra was laying on a mattress in the master bedroom

covered up with just - - it was a bare mattress. There was no pillow case on

the pillow and no sheets on the bed and the blanket that she was covered up

with had dirt on it.

And she said she didn’t feel well. So I felt her and she felt a little bit

warm and so I told [Mother] - - I said, “What’s going on with her?” And she

said she doesn’t feel well - - was the response that she made.

And I said, “Why is she laying on a bed with no covers? Why are there

no sheets or anything on this bed?” And none of the beds had any sheets on

them and she said, “They’re being washed.”

And I said, “Did you just strip the beds this morning?” And she said

no. So I don’t know how long they had been washed, but at least over night.

So I told her that the girls needed to not be playing in a tub with the

water splashing out on the floor and that Sierra needed to be in a bed with

clean sheets and that she needed to be monitoring her obviously.

When I stopped back by on Sunday the 10th, there were sheets on the

bed at that point in time, but there was [sic] dirty dishes everywhere and the

floor was really really sticky. Something had been spilt on the floor.

There was a gallon of milk open on the living room floor just sitting in

the living room and I told [Mother] there’s a gallon of milk in the living room

and she went and got it and put it in the refrigerator.

And when I came in the house, Chelsea was sitting on one of the beds

and she had a container of Cool Whip and she was eating the container of Cool

Whip with her fingers.

So the children were always left to do just whatever. I would frequently

see them walking around with a bag of Doritos and a Mountain Dew or she

would give them energy drinks.

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We had several discussions about, you know, the appropriateness of

energy drinks for small children, but she would let them have energy drinks.

I never saw her have a constructive bonding time with the children.

They were always pinging off the walls and she was just unsure of what to do.

Ms. Spenser testified that the DCS workers talked to Mother about the

nutritional content of food:

Many many times. And there were times when she was having them in her

house that she would cook food. She might make spaghetti or she might cook

corn and she would cook some basic things.

But the vast majority of the visits it was always pizza, chips, ice cream

and soda. Soda’s always a part. In fact, one of my notes talks about Chelsea

walking around with a plate that had a pop tart and - - let me get all the details

- - Cheetos, a pop tart, and a Zinger. There was no nutritional food at that visit

at all.

Photographs of a trailer where Mother lived in December of 2008 were

introduced at trial. Ms. Spenser described one of the photographs stating: “This is a table in

the corner of the kitchen that has items belonging to all six of the children as well as incense

and candles on it.... [Mother] described it as a shrine to her children.” When Mother was

asked about the purpose of the items on the table, she refused to answer those questions. Ms.

Spenser testified that there was a pentagram drawn on the floor near the table pictured in the

photograph. Mother was questioned about the pentagram and during subsequent visits, Ms.

Spenser observed a place-mat thumb-tacked over the pentagram so the case workers could

not see it.

Ms. Spenser also testified about a photograph depicting papers scotch-taped

to a wall stating:

These are - - and on top of each piece of paper is a lock of hair from her kids.

And these are - - I can’t remember if these are actual birth certificate [sic] or

if they’re doctors [sic] visits notices.

But they’re medical documents of some sort. I cannot remember

exactly what each of them was. And there are other things taped to the wall

where they had doctors [sic] visits and whatnot.

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When asked about the papers taped to the wall, Mother acknowledged that they were locks

of the Children’s hair, but refused to discuss it any further. Mother was evicted from this

trailer around the end of 2010, and to Ms. Spenser’s knowledge Mother has not had a

residence of her own since that time.

Ms. Spenser was asked if she thought that the two trailersthat Mother had lived

in since the Children came into State custody would have been appropriate for the Children,

and she responded:

The level of clutter was astronomical. In her living room on Watson, she had

three TVs stacked on top of each other in a very precarious manner that where

a bigger one would be stacked on top of a smaller one.

So that if you - - I would be concerned that a child would pull them off

on top of themselves. One of the - - two of the arm chairs in the living room

were covered with the boy’s clothing set out in a display-type fashion where

they were laying up on the chairs and laid out for display purposes.

In the boys [sic] bedroom there were magazines that were fanned out

like you might see in a doctor’s office laying half on top of each other, but they

went all the way around the room.

She appears to me to be someone who’s very much into - - okay.

Here’s a very good example. If the children - - let’s say we were at a visit out

and the children drank a coke, or the children ate a McDonalds [sic] burger,

she wouldn’t allow you to throw away the paper or the can from that meal.

And it wasn’t like she was recycling aluminum cans. They showed up

on her table as a shrine. Anything the children touched; an empty pizza box,

half-eaten hamburgers, ice cream cones that were put into a ziploc bag, and put

in her purse and taken home.

She is compulsive about keeping stuff. And anyone that’s ever been

around her at one of these visits, she always carries bags with her.

And in those bags will be every documentation, every piece of

documentation that is important to her. I’ve seen her go through - - pull out

a pile of papers that are rubber banded together and go through them to look

for an insurance card or to look for a pay stub or look for some piece of

documentation.

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She carried all that with her everywhere she went. And her house very

much reflected that level of clutter and filth.

Ms. Spenser was asked how Mother related to the Children and she testified:

Mostly in a reactionary way. They would want something and she would go

and get it. The children because of the high-sugar content - - and most of the

snacks that she provided to them were not what we would consider nutritional

snacks.

And so they would be pinging off the walls and she would be trying to

respond to them.... And frequently there would be three of us there besides

[Mother] and the children. There would be three others. Somebody from

DCS, somebody from Omni, and then myself. And I mean there were always

more than just her there.

And we frequently - - we would say do you realize that this child is

doing this, you know, do you see that that’s maybe not an appropriate thing to

do.

And if we said something to her, she would try to go and remedy it. But

frequently she wouldn’t. She would walk that way, but she would never

actually stop the behavior.

Ms. Spenser also testified:

[Mother] talked to herself a lot. She would carry on - - the commentary that

we all have inside our heads - - I need to do this or I’m on my way to do that,

she verbalized all of that.

And so she would walk around the house talking to herself out loud, a

conversation that we would normally consider as something that would go on

inside of our head.

Ms. Spenser testified that the therapeutic visitation provider worked with

Mother to try to improve Mother’s parenting skills, but Ms. Spenser never saw Mother make

any improvement in her parenting skills. When asked if she thought the Children would be

safe in Mother’s care, Ms. Spenser stated: “Absolutely not.... [I]n my observation, I have

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never seen a change in her behavior. Her behavior’s just as erratic toward her children today

as it was when they were taken into custody four-and-a-half years ago.”

After the trial, the Magistrate filed a FinalJudgment of Termination of Parental

Rights and Full Guardianship on April 10, 2012 containing detailed findings of fact and

conclusions of law, which provides, in pertinent part:

The mother called her attorney and the Guardian Ad Litem after the

hearing had commenced and reported that she had been taken to the hospital

by ambulance that morning due to experiencing chest pains. The Court set the

matter for further hearing on April 9, 2012 and advised counsel for the mother

that the mother, through counsel, should present evidence to document her

illness and trip to the hospital to opposing counsel by April 3, 2012. The Court

advised that consideration would be given to setting the judgment of [sic] aside

if good cause were shown. The mother also failed to present any proof to

document her trip to the hospital on March 30, 2012 and further failed to

appear at the hearing on April 9, 2012. The Court, therefore, declined to

reconsider the judgment announced during the hearing on March 20, 2012

which is set forth in this order.

The Court, after hearing testimony from DCS Case Manager, Anna

Lahrs, and CASA Advocate, Kim Spenser, and considering the entire record

and exhibits introduced herein, the Court finds by clear and convincing

evidence the following:

* * *

PARTIES

1. Petitioner is the current custodian of the children. The Blount

County Juvenile Court adjudicated the children dependent and neglected on

January 7, 2008 after issuing an emergency protective custody order placing

the children in state's custody on August 30, 2007. The children have been in

foster care continuously since the Juvenile Court's protective custody order.

* * *

GROUNDS FOR TERMINATION

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The Court specifically finds that the department did not prove the

ground of abandonment for failure to support with regards to the mother, but

does find that the department has proven the remaining grounds contained in

its petition by clear and convincing evidence, including:

1. Abandonment - Failure to Provide a Suitable Home as to the

Mother:

The Court finds that the Petitioner has proven by clear and convincing

evidence that:

a. The mother has failed to correct the conditions that led to the

removal and establish a suitable home for the child.

b. DCS has made reasonable effortsto assist the mother to establish

a suitable home.

c. The mother has a lengthy criminal history and has incurred new

criminal charges since the child came into DCS custody.

d. At times, the mother made efforts to correct the conditions that

led to the removal of the children, but failed to make any lasting changes that

would permit the return of the children to the home. Currently, the mother does

not have appropriate housing for the children, is unable to manage the care and

supervision of the children to such a degree that the children would be at risk

of being dependent and neglected if they were returned to her care, and was

recently convicted and sentenced on a criminal charge of driving under the

influence. These facts, especially the fact that she has not been able to make

any significant, lasting changes that would permit her to provide a suitable

home in the more than four (4) years that the children have been in the custody

of the department of children’s services, demonstrate a lack of concern for the

children to such a degree that it appears unlikely that she will be able to

provide a suitable home for the child at an early date.

e. These facts meet the statutory requirements for this Court to find

that the Department has established the necessary facts by clear and

convincing evidence to meet the requirements of Tenn. Code Ann. §§ 36-1-

102 (l)(A)(ii) and -113 (g)(1).

2. Persistence of Conditions as to the Mother:

The Court finds that the Petitioner has proven by clear and convincing

evidence that:

a. In August 2007, the children were removed from the legal custody

of the mother because she lacked suitable housing for the children, was not

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providing adequate supervision of the children, and was not ensuring that the

older siblings of the four children at issue here attended school.

b. The conditions that led to the removal still persist and/or other

conditions in the home exist that, in all probability, would lead to further

neglect or abuse of the children.

c. There is little chance that those conditions will be remedied soon

so that the children can be safely returned to the home.

d. DCS has made reasonable efforts to assist the mother in

remedying the conditions that led to the removal, but avail [sic]. These

reasonable efforts included: assisting the mother in obtaining a mental health

assessment, arranging for and supervising regular visitation with the children,

providing for the mother to attend parenting classes, providing therapeutic

visitation to assist the mother with supervision issues, evaluating the various

residences where the mother lived and informing her of any changes that

needed to be made to ensure that the home itself was appropriate for the

children, and offering assistance with transportation for appointments or

visitation when the mother indicated that transportation was a barrier. The

mother regularly refused the offers of assistance and always indicated that she

didn't need any help in remedying the conditions that led to the removal of the

children.

e. These facts meet the statutory requirements for this Court to find

that the Department has established the necessary facts by clear and convincing

evidence to meet the requirements of Tenn. Code Ann. § 36-1-113 (g)(3).

* * *

BEST INTEREST

The Court finds, with the concurrence of the Guardian Ad Litem, that

it is in the best interest of the child for the rights of the Mother,

Respondent/Legal Father, and Respondent/Putative Fathers be terminated

based upon the following factual findings:

* * *

[T]he mother has failed to make any lasting change to her circumstances that

would allow her to adequately care for the children despite having more than

four (4) years to make such change. The mother has maintained regular contact

with the children through visitation, but the children do not regularly ask to see

the mother and usually are concerned with making sure that she is doing well

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rather than spending time enjoying a parent-child relationship. The mother is

incapable at this time or in the near future in refraining from bizarre behaviors

which impede her ability to promote a healthy parent-child relationship. The

mother is also incapable of providing adequate supervision that would ensure

the safety of the children.

The Juvenile Court entered an order ratifying and confirming the Magistrate’s findings of

fact and conclusions of law on May 4, 2012 nunc pro tunc to April 10, 2012. Mother appeals

to this Court.

Discussion

Although not stated exactly as such, Mother raises three issues on appeal: 1)

whether the Juvenile Court erred in refusing to grant Mother a continuance; 2) whether the

Juvenile Court erred in finding that grounds had been proven to terminate Mother’s parental

rights to the Children; and, 3) whether the Juvenile Court erred in finding that it was in the

Children’s best interest for Mother’s parental rights to be terminated.

Our Supreme Court reiterated the standard of review for cases involving

termination of parental rights stating:

This Court must review findings of fact made by the trial court de novo

upon the record “accompanied by a presumption of the correctness of the

finding, unless the preponderance of the evidence is otherwise.” Tenn. R.

App. P. 13(d). To terminate parental rights, a trial court must determine by

clear and convincing evidence not only the existence of at least one of the

statutory grounds for termination but also that termination is in the child’s best

interest. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Tenn. Code

Ann. § 36-1-113(c)). Upon reviewing a termination of parental rights, this

Court’s duty, then, is to determine whether the trial court’s findings, made

under a clear and convincing standard, are supported by a preponderance of the

evidence.

In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006).

In Department of Children’s Services v. D.G.S.L., this Court discussed the

relevant burden of proof in cases involving termination of parental rights stating:

It is well established that “parents have a fundamental right to the care,

custody, and control of their children.” In re Drinnon, 776 S.W.2d 96, 97

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(Tenn. Ct. App. 1988) (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208,

31 L. Ed. 2d 551 (1972)). “However, this right is not absolute and parental

rights may be terminated if there is clear and convincing evidence justifying

such termination under the applicable statute.” Id. (citing Santosky v. Kramer,

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

Termination of parental or guardianship rights must be based upon a

finding by the court that: (1) the grounds for termination of parental or

guardianship rights have been established by clear and convincing evidence;

and (2) termination of the parent’s or guardian’s rights is in the best interests

of the child. Tenn. Code Ann. § 36-1-113(c). Before a parent’s rights can be

terminated, it must be shown that the parent is unfit or substantial harm to the

child will result if parental rights are not terminated. In re Swanson, 2 S.W.3d

180, 188 (Tenn. 1999); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct.

App. 1998). Similarly, before the court may inquire as to whether termination

of parental rights is in the best interests of the child, the court must first

determine that the grounds for termination have been established by clear and

convincing evidence. Tenn. Code Ann. § 36-1-113(c).

Dep’t of Children’s Servs. v. D.G.S.L., No. E2001-00742-COA-R3-JV, 2001 Tenn. App.

LEXIS 941, at **16-17 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed. Clear

and convincing evidence supporting any single ground will justify a termination order. E.g.,

In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

We first address whether the Juvenile Court erred in failing to grant Mother a

continuance. As this Court stated in State of Tennessee Dep’t of Children’s Servs. v. V.N.:

“The granting or denial of a motion for a continuance lies in the sound discretion of the court.

The ruling on the motion will not be disturbed unless the record clearly shows abuse of

discretion and prejudice to the party seeking a continuance.” State of Tennessee Dep’t of

Children’s Servs. v. V.N., 279 S.W.3d 306, 317 (Tenn. Ct. App. 2008) (quoting Blake v. Plus

Mark, Inc., 952 S.W.2d 413, 415 (Tenn. 1997) (citations omitted)).

As pertinent to this issue, Tenn. Code Ann. § 36-1-124 provides:

36-1-124. Contested terminations of parental rights and adoptions –

Appeals – Expedited schedule. – (a) In all cases where the termination of

parental rights or adoption of a child is contested by any person or agency, the

trial court shall, consistent with due process, expedite the contested

termination or adoption proceeding by entering such scheduling orders as are

necessary to ensure that the case is not delayed, and such case shall be given

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priority in setting a final hearing of the proceeding and shall be heard at the

earliest possible date over all other civil litigation other than child protective

services cases arising under title 37, chapter 1, parts 1, 4 and 6.

* * *

(c) It is the intent of the general assembly that the permanency of the

placement of a child who is the subject of a termination of parental rights

proceeding or an adoption proceeding not be delayed any longer than is

absolutely necessary consistent with the rights of all parties, but that the rights

of the child to permanency at the earliest possible date be given priority over

all other civil litigation other than child protective services cases arising under

title 37, chapter 1, parts 1, 4 and 6.

Tenn. Code Ann. § 36-1-124 (2010).

Although Mother left a message telling her attorney that she was in a hospital

emergency room and attempts were made to verify that Mother was in the hospital, Mother’s

attorney and the Juvenile Court were unable to verify Mother’s excuse for her failure to

appear at trial. The Juvenile Court even went so far as to tell Mother’s attorney that if

Mother would provide some documentary proof to substantiate her claimed excuse, the

Juvenile Court would entertain a motion to set aside the judgment. Mother never provided

any proof substantiating her excuse for failing to appear at trial.

In her brief on appeal, Mother argues that the Juvenile Court “denied her the

opportunity to be heard” when it refused to grant the continuance. We disagree. Mother had

the opportunity to appear at trial, and she clearly was aware of the date and time as she

contacted her attorney to leave a message about why she was not there. Furthermore, the

Juvenile Court gave Mother ample opportunity to provide proof of a valid excuse for not

appearing at trial and specifically stated that it would entertain a motion to set aside the

judgment if Mother provided a valid and substantiated excuse. Mother failed to provide any

such proof. Given our General Assembly’s clear directive regarding expediting contested

parental termination proceedings and Mother’s failure to provide any proof in support of her

claimed excuse for failing to appear at trial, we are unable to conclude that the Juvenile Court

abused its discretion when it denied Mother a continuance.

We next consider whether the Juvenile Court erred in finding that grounds had

been proven to terminate Mother’s parental rights to the Children. The Juvenile Court found

that grounds had been proven by clear and convincing evidence to terminate Mother’s

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parental rights under Tenn. Code Ann. § 36-1-113(g)(1); § 36-1-113(g)(3); and 36-1-

102(1)(A)(ii). In pertinent part, Tenn. Code Ann. § 36-1-113 provides:

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

upon any of the grounds listed in this subsection (g). The following grounds

are cumulative and non-exclusive, so that listing conditions, acts or omissions

in one ground does not prevent them from coming within another ground:

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

occurred;

* * *

(3) The child has been removed from the home of the parent or guardian by

order of a court for a period of six (6) months and:

(A) The conditions that led to the child’s removal or other conditions

that in all reasonable probability would cause the child to be subjected to

further abuse or neglect and that, therefore, prevent the child’s safe return to

the care of the parent(s) or guardian(s), still persist;

(B) There is little likelihood that these conditions will be remedied at

an early date so that the child can be safely returned to the parent(s) or

guardian(s) in the near future; and

(C) The continuation of the parent or guardian 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) (2010).

As pertinent to this appeal, Tenn. Code Ann. § 36-1-102 provides:

(1)(A) 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, “abandonment” means that:

* * *

(ii) The child has been removed from the home of the parent(s) or

guardian(s) as the result of a petition filed in the juvenile court in which the

child was found to be a dependent and neglected child, as defined in § 37-1-

102, and the child was placed in the custody of the department or a licensed

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child-placing agency, that the juvenile court found, or the court where the

termination of parental rights petition is filed finds, that the department or a

licensed child-placing agency made reasonable efforts to prevent removal of

the child or that the circumstances of the child’ssituation prevented reasonable

efforts from being made prior to the child’s removal; and for a period of four

(4) months following the removal, the department or agency has made

reasonable efforts to assist the parents(s) or guardian(s) to establish a suitable

home for the child, but that the parent(s) or guardian(s) have made no

reasonable efforts to provide a suitable home and have demonstrated a lack of

concern for the child to such a degree that it appears unlikely that they will be

able to provide a suitable home for the child at an early date. The efforts of the

department or agency to assist a parent or guardian in establishing a suitable

home for the child may be found to be reasonable if such efforts exceed the

efforts of the parent or guardian toward the same goal, when the parent or

guardian is aware that the child is in the custody of the department;

Tenn. Code Ann. § 36-1-102(1)(A)(ii) (2010).

As quoted above, the Juvenile Court made detailed and specific findings with

regard to this issue including, among others, the findings that Mother had failed to provide

a suitable home for the Children, that the conditions which led to the Children coming into

State custody persisted, and that DCS had made reasonable efforts to assist Mother. The

evidence in the record on appeal, as already discussed in this Opinion, does not preponderate

against the Juvenile Court’s findings made by clear and convincing evidence that grounds

were proven to terminate Mother’s parental rights to the Children pursuant to Tenn. Code

Ann. § 36-1-113(g)(1), § 36-1-113(g)(3), and § 36-1-102(1)(A)(ii).

Finally, we consider whether the Juvenile Court erred in finding that it was in

the Children’s best interest for Mother’s parental rights to be terminated. With regard to this

issue, the Juvenile Court specifically found:

The Court finds, with the concurrence of the Guardian Ad Litem, that

it is in the best interest of the child for the rights of the Mother,

Respondent/Legal Father, and Respondent/Putative Fathers be terminated

based upon the following factual findings:

* * *

[T]he mother has failed to make any lasting change to her circumstances that

would allow her to adequately care for the children despite having more than

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four (4) years to make such change. The mother has maintained regular contact

with the children through visitation, but the children do not regularly ask to see

the mother and usually are concerned with making sure that she is doing well

rather than spending time enjoying a parent-child relationship. The mother is

incapable at this time or in the near future in refraining from bizarre behaviors

which impede her ability to promote a healthy parent-child relationship. The

mother is also incapable of providing adequate supervision that would ensure

the safety of the children.

The evidence in the record on appeal does not preponderate against these findings made by

clear and convincing evidence that it is in the Children’s best interest for Mother’s parental

rights to be terminated.

Given all of the above, we find and hold that the Juvenile Court did not err in

terminating Mother’s parental rights to the Children. We affirm the Juvenile Court’s

judgment entered May 4, 2012 nunc pro tunc to April 10, 2012 terminating Mother’s parental

rights to the Children.

Conclusion

The judgment of the Juvenile Court is affirmed, and this cause is remanded to

the Juvenile Court for collection of the costs below. The costs on appeal are assessed against

the appellant, Kimberly M., and her surety, if any.

_________________________________

D. MICHAEL SWINEY, JUDGE

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