### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs J anuary

30, 2003 Se ssion
STATE O F TENN ESSEE, DEPA RTMEN T OF CH ILDREN 'S SERV ICES v. A.N.G. and S. L.G.
Appeal from the Juvenile Court for Greene County No. 15382 Thomas J. Wright, Judge FILED FEBRUARY 26, 2003

No. E2002-01114-COA-R3-JV

The State of

Tennessee, Department of Children’s Services (“State” or “DCS”) obtained temporar y custody of the thr ee minor child ren o f A.N.G. (“Mother”) and S.L .G. (“Father”)(collectively refe rred to as “Parents”) after Parents’ two y ear old son was found in a roadway near their home. DCS later sought to terminate Parents’ parental rights. After a trial, the Juvenile Court determined there were sufficient ground s to termin ate Pare nts’ parental rights and doing so was in the best interests of the children. Parents appeal, claiming DCS failed to prove by clea r and convincing evidence that there
were sufficient grounds to terminate their parental rig hts. P aren ts also claim DCS failed to prove by clear a nd convin cing ev

idence t hat termination of

th eir par ental r ights would be in th

e best interest s of the c hildren. We affir m the judgment of the

Juvenile Cou

rt.

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

Affirme d; Case Re

manded.

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and H ERSCHEL P. F RANKS , J., joined.

Douglas L. Pay

ne, Greeneville, Tennessee, for the Appellant A.N.G.

David L. L

eonard, Greeneville, Tennessee, f or the Appellant S.L.G.

Paul G. Summers , Attorne y General and Repor

ter, and Dougla s Earl Dim

ond, Ass istant Atto rney Genera l, Nashville, Tennessee, for the App ellee State of Tennessee, Department of Children’ s Service s.1 The fi rst Peti ti on for

Temporary Cust ody invol ved only Pare nts’ two year old dau ghter, although P arents also had a son who was ten months old at that time. A thi rd child, another son, was born in June of 2000. In the second Petitio n for T emp orar y Custo dy, D CS sough t temp orar y custod y of all three childre n. -2- OPINION Background

This litigation began with a Petitionfor Temp orary Custody filed by DCS on Augu st 31, 1999. In this petition, DCS alleged Pa re nt s’ tw o ye ar old daughter had been left a lone in an apartment for almost four hours before Parents could be locate d. The child appare nt ly was found wand erin g around th

e apart ment comp lex. DCS alle ged the child wassubjecte d to an imme diate threat to her safety

and a delay

in having a hearing would result in sever e or irrepa rable harm. DCS also allege d it was in t

he child’ s best

interests to be removed

from Par ents’ cu stody . The Juven ile Court, due to the emergency nature of the situation, placedthe child in DCS custody. On September 1, 1999, a hearing was held conce rning the a llegat

io ns contained in the petition. Parents and the guardian ad litem testified at the he aring . Based on this testimony, which is not contained in the record on appea l, the Juven

ile Court r

estored custody of the ch ild to Pare

nts. In April of 2001, another Petition for Tempora ry Custody

was filed. 1 DCS alleged all three of Parents’ children were dependent and neglected. DCS alleged Parents were inca rcerated for criminal charges related to their ne glect of the children. Specifically , Parents were arrested when their two year old son wa s found in a roadway near their home. According to DCS, the other two children were with Mother who was passed out. The location of Father was unknown. DCS alleged the children were subjected to an immed ia te threat to their safety

and a delay

in having a hearing would result in severe or irreparable har m. DCS also alleged it was in the children’s best inter ests to be re mo ve d f

ro m P ar en ts ’ c us to dy. The Juvenil e Court granted temporary custody to DCS and set the matter for

hearing. The children’s pater nal grandmother then filed a petition seeking custody of the children. On May

23, 2001, the Juvenile Court conducted another hearing and determined the children were dependent and neglected. DCS was awarded temporary custody and phy sical custody
was placed with the children’s paternal grandmother

. Parents were, however, allowed super vised visitations and both were ordered to pay a set amount of child support.

In May of 2001, a P er manency Plan (“Plan”) was developed with the stated goal being the retu

rn of the childre n to Paren

ts. Under

the termsof the Pla

n, Paren ts w ere to f

in d emplo ym ent

sufficient to provide for all three children. Parents also we re to complete parenting classes as well a s demonstr ate they were

not abusing alcohol or drugs. These and other requireme

nts were explained

to Parent s. Parent s acknow ledged in writing

their ag reemen t with the termsof the Plan.

In Novembe r of 2001, DCS petition

ed Juvenile

Court to te

rminate Parents’ parental rights for numerous reasons. DCS alleged: 1) the childre n had been removed from the home for at least six months and the conditions which led to their removal persisted; 2) there was little likelihood2 It appear s Father did complete a clas s ti tled The Eff ec ts of D iv orce on Chil dren. The recor d is unc lear whether this class met the requ irements of a pa renting class.
-3- that these conditions would be remedied at an ea rl y d ate which would permit a safe return of the children to the home; and 3) contin uation of the pare nt/child r elationsh ip would g

reatly diminish the children’s chance s of ear

ly in tegra tion into a s afe, sta

ble and pe

rmanent h ome. DCS al so alleged there had not be en substa ntial comp liance b y Pa

rents wit h the Plan, a

nd that Par

ents had willf

ully ab andoned the ir children by not pay ing child support and by

failing to visit the children for more than four consecutive months preceding the filing o f the pet

ition. Fin ally , DCS alleged it would be in the best interests of the children for Parents’ parenta l rights to be terminated.

A trial was conducted on March 13, 2002. The first witness was Lana Justi s (“Justis”), the DCS case manager assigned to the cas e since April of 2001. Justis testified the children came into the State’s custody a fter the middle child was found wandering around nake d in
a convenience store

parking lot. The police entered Parents’ home and found Mother asleep and the other two children una ttend ed. Wh en Father retu rned, Pa rents we re arr ested. Th

ereaf ter, Justis developed the Plan and went over the contents of the Plan with Parents, whichthey signed. Justis testified the Plan r

equired Parents t

o complet

e paren ting cla ss es successfully. While Mother completed such a class, Justis was not aware of Father ’s comply

ing with t his require

ment. 2 The Plan also required Parents to obtain s uitable e mploy ment to sup

port the c hildren. At the time

of trial, Parents had sepa

rated. M other wa s not emplo yed. Justis did not know whether Father was employed. Another

require ment in the

Plan was f

or Paren ts to provide a suitable baby sitter to care for the children while Parents were at work. When Justis performed a home interview of Mother, Mother was wor king third shift at Waffle House and “did not know what to do with any of the children while she was at work or while she was asleep.” Justis was unaware of

any steps Fa

ther had taken in this regard. Father moved to Morr istown and had several different residences. Justis was unable to maintain contact with Father. Parents also were re quired to d emons trate they we re not abusing drugs and alcoholand to submit to drug tests. Because she did not know where F ather was and Mother did not have a telephone, Justis was unable to administer drugtests. A drug test was administered the da y of trial . Mot her tes ted ne ga t ive for d rugs. F ather te sted positi ve for TH C. Justis stated that

after the P lan was developed, issues arose with rega rd to suitable housing and transportation. At the time of trial, Mother’s car was not functional and, to her knowledg e, Father didnot have transportation. Mother had obtained an apartment suitable for the children. Justis asked Mother to keep in

touch with her at least twice a month, but Mother had not done so. When asked what conditions would cause further abuse or neglect and prevent the safe return of the children, Justis responded: “[Mother] has no transportation. She has no employ ment. She has provided very litt le d ocumentation to the Department about her interest in her children. Her visits have been sporadic, especially

since the last court hearing.”

Ba sed on documentation provided by the c hildren’s grandmother, from No vembe r 30, 2001, through March 13, 2002, Mother visited the children four times. More specifical ly, Mother visited the children for 20 minutes on November 30, four hours on December 14, two a nd one-half hours on January 25, and two and one half hours on March 2. According to Justis, Father-4-

visited the children for thirty minutes on November 30, one hour on Dece mber 13, f our hours on December

14, four hours on D ecembe

r 21, three hours on

Decemb er 25, thi

rty minutes on January 14, thirty minutes on January 24, two hours on February 22, and two hours on March 8.

It was alleged

in the Petition to Terminate Parental Rights that Parents failed to pay child support for four consecutive months prior to the filing of the Petition. Justis acknowledged that Father had paid some child support, but not the am

ount requ ired in the

Juvenile Court’s order. At the last cour

t hearing before trial, Fa ther was approximately $400 in ar rears and Mother was approxima

tely $1,000 in

arrea rs. One month prior to trial, Justis contacted the court clerk’s office and was told nothing had

been re ceived f

rom Pare nts since the last c ourt date . At the time of trial, Mother was approximately $1,640 in arre ars and Father was $1,00 0 in arrears. Justis was not aware of Parents p aying any

child supp ort from t

he last court hearing up to the date of trial. When asked if she kn ew exa ctly what moni es Fath er had p aid in the fo ur mon ths p recedi ng t he fil ing o f the Petition, Justis said she did not kn ow but t hat i nformation had been presented at the last court hearin g. When asked if she had documentation showing Father ’s visits with the children in the four months preceding the filing of the Petition, Justis stated her copy of this information was “submitted to the file” and the children’s grandmother had this information.

Justis further testified

she received a call from Fa ther on July 7 wherein Fa

ther stated he was going to parenting c lasses, but he did not have a car and had been la id o ff from h

is job. Father also stated he

was living

witha cousin and could not have the children stay with him at that time. Apparently, Father had attended a class through the probation department, but Justis claimed the Juveni le Court had determined previ ously that this w as not the

typ e of cla ss Fathe

r neede d to take. With regard to Mother’s employ ment over the previous yea r, Justis testified she was told by Moth er that s he had worked at a Ra ceway Marke t but was fi red for steal ing, an allega tion whic h Mother denies. M oth er als o worked at a tattoo parlor, but she received two pier cings instead of wages.
Ms. Nancy Hensley, the c

hildren’s paternal grandmother (“ Grand mother”) was calle d
as a witness . Grandmother kept a log of the visits and telephone calls of Parents. Gra ndmother testified that

between May 24 and Nove mber 28 of 2001, both Mother and Father visited the children
a total of eleven times. From November 28, 2001 through March 13, 2002, Gr andmother received
no child supp ort from e

ither Par ent. Mothe

r and Fa ther did n ot send the

childre n Christ ma s or birthday present s and did not give them any cards. G randmoth er desc ribed Par ents’ visi ts with the children as positive. The children were excited to see Mother and F ather. Grand mother and her husband had attended parenting classes and G randmother

wanted to adopt the children if Mother and Father’s parental rights were terminated. Grandmother testified that if she adopted the children, she intended on allowi ng Mother and Father to maintain contact with their children. The record establishes that Grandmother’s residence is suitable for taking care of the three children.

Mother testified she currently

resides at Manor Apartments. According to Mother, she successfully c ompleted a parenting class. Mother testified she had w orked at Waffle House for four months with that job ending about one

month bef

ore tria l. She had

made fr om $155 to

more-5-

than $200 per

week plus tips at this job. Mother testified she missed one day of work because she had a seizure

and was f

ired. Mot

her doesnot have a

ny j ob prospe cts . Mother t esti fied the Plan required her to screen potentialbabysitters. Mother said she did that a nd would use Grandmother
as the babysitter. All medica tions are out of reach of the children. Mother admitted she did not have reliable transportation. She does own a vehicle but it is not in working order. Mother admitted she
never paid any child support and did not buy her children any

Christmas or birt hda y gifts, e ven thou gh she was employe d for severa l mon ths. She di d, how ever, w ork lo ng enou gh at a tattoo parlor to be able t

o get tw o pierci ngs. Sinc e losing her job a

t Waffle H ouse, Mo therhas not sought employment

because she does not have transportation. When asked if she could have taken care of the children if she had regained c ustody one week pr

ior to trial, Mother responded “no.”

Father tested po sitive for

THC in a dr

ug test a dminister ed the da y of trial. Father

did not testif y a t trial.

After trial, the Juvenile Cou

rt enter ed an Or der ter minating Parents’ parental rights. The Juvenile Court found by clear and c onvincing evidence that Mother had abandoned the children by willfully failing to pay

child support for the chi ldren for a period of four consecutive months preceding the filing of the petition. The Juvenile Court also found:

That the children have been removed by order of this Court for a period of six (6) mo nth s; the cond itions whic h led to the

ir removal still persist; other conditions persist w hich in all proba bility would cause the childre

n to be subj ected to

further abuse and neglect and which, therefor

e, preve nt the chi ldren’s return to the ca re of [Pare nts]; there is little likelihood that these conditions will be remedied at an ea rly dat e so that th

ese chil dren ca

n be retu rned to them in the near future; and the continuation of the legal parent and child relationship greatly

diminishes the children’s chances of earl y integration into a stable and permanent home;

That [Parents] have failed to comply in a substantial manner withthose re asonable

responsibilities set out in the foster care plans related to reme d ying the c onditions which necessitate foster care placeme nt;
That i t i s in the best interest of [the children] ... that all of [Parents’] parental rights to these children be terminated ....

Par ents appeal the final judgment of the Juvenile Court. Parents assert the State faile d to pro ve by clea

r and con vincing evidenc e that the

re were sufficie nt grounds to terminate the ir parental rights. Parents also claim the State failed to prove by clear and convincing evidence that termination of their parental rights would be in the best interests of the c hildren.-6- Discussion

The factual findings of the Juvenile Court are accorded a presumption of corr ectness , and we will not overturn those fa ctual findings un

less the e vidence prepond erates agains t them. See Tenn. R. App. P. 13(d); Bogan v. Bogan , 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal issues, our review is conducted “under a pure de novo standard of review, according no deference to the conclusions of law made by the lower c ourts.” Southern C onstructo rs, Inc. v. Loudon County Bd. Of Educ. , 58 S.W.3d 706, 710 (Tenn. 2001).

In State v. D .G.S.L. , No. E2001-00742-COA-R3-JV, 2001 Tenn. Ap p. L EXIS 941 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed , this Court discussed the relevant burden of proof in cases involving

terminat ion of par ental rig hts. Speci fically , we obse rved:

It is well established that "parents hav e a funda mental right to the care, custody, and contro l of their ch ildren." In re Drinnon , 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citi ng Stanley v. Illinois , 405 U.S. 645, 92 S. Ct. 1208, 31 L.Ed .2d 551 (1 972)). " Howeve r, this right is not absolu

te and pa rental r ights ma y be terminat ed if the re is clear and convincing evidence justifying such termination under the applica ble 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 fo r termina ti on of parental or guardianship rights have bee n e stablished by clear

and convincing evi dence; and ( 2) termination of the parent’s or guardia n’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 paren t is unfit or su

bstantial harm to the

child will r

esult 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. 1 99 8). Similarly, before the c ourt may inquire as to whe ther termination of parental rights is in thebest 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). This Courtdiscussed the “clear and convincing e vidence” standardin O’Daniel v. Messier , 905 S.W.2d 182 (Tenn. Ct. App. 1995), a s follows:

The “clear and convincing evidenc e” standard de fies p recise definition. Majors v. Smith, 776 S.W .2d 538, 540 ( Tenn. Ct. A pp. 1989) . Whileit i s more exacting than the preponderance of the evidence3 The st atutory de finit ion o f “aban don men t” refere nced in this statute ha s bee n dec lared unco nstitutiona l.

Hence, we hav e subs ti tut ed “pr ior law” to reference the l aw which is t o be applied until the s tatute i s amended by the legislature

. -7-

standard, Santosky v. Kramer, 455 U.S. a t 766, 102 S. Ct. at 1401; Rentenbach Eng’g Co. v. Ge neral Rea lty Ltd., 707 S.W.2d 524, 527 (Tenn. Ct. App. 1985 ), it does not r equire such certainty as the beyond a
reasona ble doubtst andard. Brandon v. Wright, 838 S.W.2d 532, 536 (Tenn. Ct . App. 199 2); State v. Groves, 735 S.W.2d 843 , 846 (Tenn. Crim. App. 1987).

Clear

and convincing evidence eliminates any serious or substa

nti al doubt conce rning the
correctness of the concl usions to be drawn from the evidence. See Hodg es v. S. C . Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn. 1992). It should produce in the fact-finder’s mind a fi rm bel ief or conviction withregar

d to the tru

th of the allegati ons sought to be
es t ablished. In re Estate of Armstrong , 859 S.W.2d 323, 3 28 (Tenn . Ct. App. 1 993); Brandon v . Wrig ht, 838 S.W.2d at 536; Wiltcher v. Bradley, 708 S.W.2d 407, 411 (Tenn. Ct. App. 1985)....

State v. D.G.S

.L. , No. E2001-00742-COA-R3-JV, 2001 Tenn. App. LEXI S 941 at **16-19 (Tenn. Ct. App. Dec. 28, 2001).

Termina tio n of pa rental rights may

be based upon a number of statutory grounds. The three grounds upon which the Juvenile Court based its ruling are:

(1) Abandonment

by the parent or guardian, as def ined in [prior law], has occurred; 3
(2) There has been

substantia

l noncompl

iance by th e parent or guardian with the st

atement of re sponsibilities in a permanency

plan or a plan of care pursuant to the provisions of title 37, chapter 2, part 4;
(3)(A) The child

ha s been removed from the home of the parent or guardian by o rder of a court for a period of six (6) months and:-8- (i) The conditions which led to the child’s removal or other condit io ns which in

all reas onable pr

obability would cause the child to be subjected to f

urther a buse
or neglect and which, therefore , prevent t he child’s safe return to the care

of the parent(s) or guardian(s) , still pers ist; (ii) There is little likelihood that these conditions will be remedied at an early

date so that the child ca n be safely returned to the parent(s) or gua rdian(s ) i n the near future; and (iii) The continua

tion of the

parent o r guar dian and c

hild relation ship greatly

diminishes the child’s chances of early integr ati on into a safe, stable and permanent home. Tenn. Code Ann. § 36-1-113(g).

The Juvenile Court found there was clear and convincing evidence that all three of these statutory gr

ounds for termination of Mother’s parental rights had been met, and that the latter two ground s had bee

n met as to Father. I

n making this deter mination, t

he Juvenile

Courtheard the testimonyof the witnesses, including theDCS repre sentative and Mothe

r. “Unlik e this Court, the [Juvenile Court] observed the manner and demeanor of the witnesses and was in the best position to evaluate their credibility .” Union Planters Nat’l Bank v. Island Mgmt. Auth., Inc. , 43 S.W.3d 498, 502 (Tenn. Ct. App. 2000). The trial court’s determinations reg ar ding credibility a re accorded consider able deference by

this Court. Id. ; Davis v. Liberty Mutual Ins. Co. , 38 S.W.3d 560, 563 (Tenn. 2001). “‘[A]ppellate courts will not re-evaluate a tri al ju dge’s a ssessmen t of witne ss credibi lity

absent c lear an d convinc ing evid ence to the contrary .’” Wells v. Tennessee Bd. of Regen ts , 9 S.W.3d 779, 783 (Tenn. 1999).

Base d on our review of the record, including the facts detailed above, w e do no t believe the Juvenile

Court committed any rever sible error in reaching its conclusion that clear and
conv inci ng evidence existed to terminate Mother’s and Father’s pa rental rights pursuant to Tenn. C ode Ann. §§ 36 -1-113( g)(2) and (g )(3)(A )(i) thr ough (iii). Ther

e has bee

n substant

ia l noncompliance with the terms of the Plan. The proof showed Parents were une mployed and

did not have transportation. Mother admitted she could not care fo r the children at this time. It does not appear Mother is actively looking for a job and

there are no prospects on the horizon. Parents failed to maintain contact with Justis. There is no proof Father lived in a residence suitable f or raising the childr en. Father did not remain drug free . These and other facts as previously set forth estab lis h Parents’ substantial noncompliance with the terms of the Plan. Th ese same facts a lso constit

ute “other conditions which in a

ll reason able pro

bability would ca use the [c hildren] to

be subjected to further abuse or neglect and which, there fore, prevent the [children’s] safe retur n to the care of-9-

[Parents].” Tenn. Code Ann. §§ 36-1-113(g)(3)(A)(i) . There was no proof offered a t trial that these conditions would be remedied in the near future. We likewise ag ree with the Juvenile Court that continuation of

the pare nt/child r elationsh ip would g

reatly diminish the

childre n’s chances of e arly integration into a safe, stable and permane nt home.

Becau se we affirm the termination of Parents’ parental rights pursuant to Tenn. Code Ann. §§ 36-1-113(g)(2) and (g )(3)(A)(i) through (iii), we pre termit the issue of whether the children had been abandoned by

Mother for willfully fa

iling to support them. Having affirmed that statutory grounds for termination were prove n by clear

and convincing evidence, we next address Parents’ claim that it was not proven by clear and convincing evidence that the termination of their parental rights was in the best interests of the children. Tenn. Code Ann. § 36-1-113(i) describes the standard for dete rmining whether

terminat ion is in the

best interest s of the c hild in suc h cases:

(I) In determining whether ter mina tion of parental or guard ianshiprights isin the bes tinterest of the child pursuant to this part, the court shall consider, but is not limited to, the follo wing:
(1) Whether

the parent or guardian has made such an adjustmentof circ umstance , conduc t, or conditions as to make it safe an d in the ch

ild’s best interest to be in the home of the parent or guardian;
(2) Whet herthe pare

nt or gua rdian ha s failed t

o effect a lasting adjustmen

t after reasona

ble effor ts by availab le social service s agencies for such dura

tion of time

that lasting adjustment does not reasonably appear possible;
(3) Whether

the parent or g uardian ha s maintained regular visitation or other contact with the child;
(4) Wh ether a meaning ful relationship has otherwise been established between the pare nt or guardian and the child;
(5) The effect a change of caretakers and phy sical
e nv ironment

is likely to have on

the child ’s emotion al, psychologic al and medical condition;-10- (6) Whether

the parent or gua

rdia n, or other person residing with the parent or g uardian, has shown br ut al it y, phy sical, se

xual, emotio nal or p sychologic al abuse, or neglect toward the child, or another child or adult in the family or household;
(7) Whether

the p h ysical environment of the parent’s or guardian’s home is he althy and safe , whethe

r there is criminal activity

in the home, or whether there is such
use of alcohol or

controlled substances as may render the parent or

guard ian consi stently

unable to care for the child in a safe and stable manner;
(8) Whether

the parent’s or guardian’s mental a n d /or emotional status would be detrimental to the child or prevent the parent or guardian fro m ef fective ly providing safe and stable care and super vision for the child; or
(9) Whether

the parent or

guardian has paid child support consistent with the child support guidelines promulgated

by the depa

rt ment pursuant to § 36-5- 101.

Tenn. Code Ann. § 36-1-113(i). After considering a ll relevant statutory fa

ctors in light of th e testimonyof the witnesses at trial, we do not believe the Juvenile Court committed

revers ible error when it concluded that

clear a nd convincing ev

idence e stablishe d that it

was in the best interest of the child ren to te rminate Pa

rents’ p arenta

l rights.
Conclusion

The judgmen t of

the Juvenile Court is affirmed, and this cause is remanded to the Juvenile Court for such further

proceedings as may

be required, if any , consistent with this Opinion, and for collection of the costs below. The costs on appeal are assessed one-ha lf against the Appellant S.L.G., and his surety , and one-half against the Appellant A.N.G., a nd her surety.

___________________________________ D. MICHAEL

SWINEY, JUDGE