# FILED
March 6, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF AP PEALS OF TENNESSEE, WE STERN SECTION AT NASHVILLE

_______________________________________________________ ) IN THE MATTER OF: JOE L ) KRISTEN SI PE , ) ) ) STATE OF TENNESSEE , ) Davidson County Juvenile Court DEPARTMENT OF CHILDREN’S ) # 9519-20025 SERVICES , ) ) Petitioner/Appellee. ) ) VS. ) C.A. No. 01A01-9704-JV-00185 ) BRUCE SIPE and LAUREL SIPE, ) ) Respondents/Appe

llants. )

)

______________________________________________________________________________ From the Juvenile Court of Davidson County at Nashville. Honorable Andrew J. Shookhoff, Judge

Dennis L. N

ordhoff , Franklin, Tennessee Attorney for Respondent/Appellant Bruce Sipe. Stacy L. Miller , Nashville, Tennessee Attorney for Respondent/Appellant Laurel Sipe. John Knox Walkup , Attorney General & Reporter Douglas Earl Dimond

, Assistant Attorney General Attorney fo

r Petitioner/Appe

llee State of Tenn

essee Departme

nt of Children’s Ser

vices

OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. CRAWFORD, P.

J.,W.S. : (Concurs) TOMLIN, Sr. J. : (Concurs)1 The petition was originally filed under the Department’s former na me - Department of Human Services.

This is a termination of parental rights case. T he minor child in question is Joel Kristen Sipe, born September 7, 1995 to Laurel Sipe (“Mother”) and Bruce Sipe (“Father”). The trial court terminated the pa

rental rights o

f both paren ts as to this child after finding on clear and convincing evidence that grounds existed to do so. Both parents have appealed. For the reasons expressed below, w

e affirm.

This case originated on the date of t he child’s birth when the appellee, State of Tennessee, Department of Children’s Services (DCS or Department) filed a “Petition for Temporary Custodyand Emergency

Removal” 1 in the juvenile court, requesting that the child be immediately placed in its temporary

care and cus tod y pen din g a fi nal adj udi cat ion rega rdi ng le gal c ust ody. The request was made on the allegation that the risk of physical harm to the child was “great” if allowed to remain in the custody of his parents. Specifically, the petition alleg ed a history

of physical

abuse by both parents; that their two other chi ldren wer e in DCS custody awaiting adoption because of “substantiated” physical abuse; and that Father had been diagnosed a paranoid schizophrenic. The petition was granted and Joel has remained in the custody of DCS since birth. A “Plan of Care” for Joel and his parents was initiated by DCS and approved b

y the court.

The appellants

received court appointed counse

l.

Joel was placed in the foster home of Mr. and Mrs. Stanle

y Mitchell.

According to
a “Periodic Review Summary” maintained by the Depa rtment, dated March 26, 1996, its “goal” for Joe l was “adoption.” A progress report of the same date identifies the reason for termination as being “[b]ased on previous abuse to another sibling.”

In July 1996, DCS filed an “amended petition” seeking to terminate the par

ental rights of Appellants on grounds that, inter alia , Father had previously committed severe child ab use aga inst Joel’s sibling in October 1994; that Mother, although not in the home at the time of the abuse, had consistently

denied the “life threatening” nature of the abuse and co ntinued in the marital relationship

withFather; that Father’s mental condition was so impaired and so likely to remain that it was unlikely

that he would be ab

le to assume care and responsibility for the child in the near2 Section 36-1-113(g) will be discussed in more detail hereinafter.
3 The hearing occurred on November 18 and 20 and December 2, 1996. future; that Mother was unable to provide a safe environm ent for the child because of her continuation in the marital rela tionship, that Appe

llants had failed t

o adjust their circ

umstances so
as to make it in the chil

d’s best interest t

o return to their home in the foreseeable future; and, fin all y, that Appellants had failed to pay any supp ort t oward the child’s care and follow the plans of care outlined for them. The peti tion was once more

amended in

November 1996 to allege, as additional grounds, the appellants’ willful abandonment of the child for more than four months preceding the filing of the petition and those grounds as identified under T.C.A. § 36-1-113(g)(3)(a). 2

After a hearing, 3 the trial court terminated the parental rights of both parties, finding as follows:

The proof in this case established by clear and convincing evidence grounds for ter

mination pursuant to

T.C.A. Sectio

n 3 6-1- 113(g)(3).
. . . In addition, the proof is clear and convincing that the parents substantially failed to comply with the Plans of Care. With respect to Mr. Sipe grounds for termination exist under T.C.A. Section 36 -1-113(g)(4) in that Mr. Sipe has b

een found to have committed severe child abuse by Judge Cooke in the proceeding involving [Joel’s sibl

ing]. Mr. Sipe has a long history of me ntal illness. He ha

s failed to follow through with the treatment that is nece ssary to effectively manage his mental illness, a llow him to maintain a

stable life sty

le andprevent

episodes of aggressive and confrontive behaviors which have in th e past resulted in criminal prosecu

tion and placemen

t in psychiatri c facilities. Mr. Sipe’s mental illness and the behaviors that are relate d to that are obstacles to his ability to safely pare nt a child. . . . Mr. Sipe’s mental illness, the behaviors associated with that illness, his failur e to follow through with treatment, and the fact that he had previously

been found to haveabused his daughter, provided the basis for remova

l of t his child who is the su bject to these proceedings.

. . . Those conditions su

pport a finding th

at the child is a neglected and dependent child, under T.C.A. § 37-1-102(b)(12)(B).

. . . . Mrs. Sipe is extremely devoted t o h er husband and ha

s in effect decided that

she would rather not regain custody of her child if she and Mr. Sipe could not raise the child together.

. . . .4 Section 37-1-102( b)(12)(B) re

ads: “Dependent and neglected child” means a child:

. . . . (B) Whose parent, guardian or person with whom the child lives, by rea son of cruelty, mental incapacity, immorality or depravity is unfit to properly care for such child; With respect to this child, Mrs. Sipe

is so strongly

attached to her husband that for most of the time the child has been in care, she would not even vis it the child unless Mr. Sipe came along. If Mr. Sipe was not available to go to the v isit wit h her, Mrs. Sipe wou

ld cancel the visit. Her def erence to her h

usband has also

pr evented Mrs. Sipe from being able to be a support for him to f ollow thro ugh on his mental health treatment
. If Mr. Sipe de

cides to stray

from his treatment, Mrs. Sipe appears to support his decision to do so.

. . . . The Sipes are at an impasse with respect to moving forward to addressing the obstacles to reunification. Because they have not been able to ackn owledge the prior abuse and the mental health needs of Mr. Sipe, they

are not able to ma

ke progress on recognizing and thus be ing able to diminish the risks to the child. Because they are unable to vi sit co nsistently, they have not developed the bonding nece ssary to allow them to assume parental responsibilities. The Court does not see any realistic prospects of them addressing the s e obstacles to reunification in the foreseeable future.

. . . . In revi ewi ng an d co nsi deri ng th e st atu tor y criteri a relevant to the best

interest determi

nation, all those c

riteria support a finding that it is in the child’s best interest to grant the petition.

. . . . The parental rights of Lau rel Sip e and Bruce Sipe

to their child, Joel Kristen Sipe, are hereby terminated. 4

We perceive the iss

u e on app eal as whether the trial court erred in terminating the parental rights of Bruce and Laurel Sipe as to their son, Joel. T.C.A . § 36-1-113(c) allows a trial court to terminate the parental rights of a parent upon a finding of “clear and convincing evidence that the grounds for

termination . . . ha

ve been establish

ed;” and that ter

mination isin the child’s best interest. Our standard of r eview of the tria

l court’s decis ion is de novo upon the record with a presumption of correctness of the trial court’s findings of fact, unless a preponderance of the evidenceis otherwise. In re Drinnon , 776 S.W.2d 96, 97 (Tenn. App. 1988) ; Rule13(d) T.R.A.P.

Appellants

argue that

the proof before the trial judge failed to establish by clear and convincing evidence that the re was a persistence of the conditions which led to Joel’s removalto an extentas would subject the child to further neglect with little l ikelihood of re mediation. To thecon tra ry, they assert that the proof establishes a change of ci rcumstances and

improvement of the

ir living conditions and an ability on their behalves to effect ively par ent their son. It is further contended

that DCS did not make reasonable efforts to reunify the family , mainly because of Father’s mental illness and the prior finding of abuse as to another sibling. In essence, it is argued that although the Sipes “did remedy their circumstances,” (b oth now have stable housing and employment

and Father is doing well without his medication) their right s were nonetheless terminated primarily because Father cease d his prescribed medications.

The record indicates that Father suffers from a bipolar disorder, or manic depression, for which he has been p rescri bed various medic ations. He was fir

st diagnosed with

the illness in 1992. He has also been d iagnosed with an

antisocial perso

nality disord

er and has a hi sto ry o f substance abuse. He has had numerous encounters with law enfo rc ement and was placed on probation by order dated September 16, 1996 after a conviction for assault. The record is clear that Father committed severe child abuse against his daughter and that both parties’ parental rights as to her, as well as their ot

her son, were the

reafter termin

ated. Nonethele

ss, the testimonies o

f both parties at trial indicate a strong denial that Father committed

such abuse against his daughter. It was Father’s testimony tha

t there was no abu

se against his daug

hter but that he “a

ccidentally

fellon her.” Mother, too, did not believe her husband “purposely hurt [their daughter].”

T.C.A. § 36-1-113(g) lists various grounds upon which the termination of parental rights may be based. The fourth identifying ground is where “[t]he parent . . . has been found to have committed severe child abuse as defined in § 37-1-102, under any prior order of a court or is found by the court hearing the petition to terminate pare ntal rights . . . to have committe d severe child abuse against th

e child who is the su

bject of the petiti

on or against

any sibling . . . of such child, .

. .” The record includes an order entered by the Davidson County Juvenile Court in September 1993 finding the part ies ’ dau ghte r “a d epen den t - n egle cte d an d se vere ly p hysical ly abused child” as defined by statute. The order identifies Father as the “pe rpetrator” of the abuse.

We find the record to support the trial court’s finding that grounds for termination as to Father’s parental rights exist under § 36-1-113(g)(4). The trial court also not ed additional grounds. We, likewise, find additional reason for the termination of Father’s parental rights, uponthorough review of t he re cord, and note he

re our strong re

servations reg

arding Father

’s ability to parent. We are cognizant of the fact that the Sipes, as of the hearing, have stable employment and housing. The record, however, reflects Father’s continued difficulty in recog nizing and accepting the serious nature of his mental illness. He denied at trial that he had a bipolar disorder in 1992, although he was diagnosed with such and even now states that he only has it “mildly.” At the time of the hearing, he was not taking his prescribed medications for this illness; however, he did agree that he would benefit from counseling regarding ce rtain pe rsonal issues such as self-esteem and being a better parent a

nd “person in

society in g

eneral.” He wa

s not seeing a co

unselor at the time of trial. He denied a

ny curren t alcohol or illeg

al drug use. When

specifically

as ked what he considered his pr

esent mental cond

ition to be, he repl

ied: “[t]hat I

am a non-using alcoholic and a non-using drug addict. . . . And that I have some cou nseling issues.” He believes he was misdiagnosed

as having an antisocial personality disorder, and although he a grees that he has a bipolar disorder, he stat

es that “there’ s a

lotof people that have it that work fine.” He stated that he would take medica

tion for the latter

, if there were n

o side effects.
Testimony

was also present

ed that Father is

currently “stable.” However, he himself testified that another mani c episode was pro

bable, explaining

that “as l ong as I can identify when I am getting manic or I am having difficulties and I put myself in situations that I can’t get out of and I don’t take the right procedu res, like using drugs, . . . I’d get manic. I f I use drugs I’d get manic. If I use alcohol

I’d get man

ic. If I d idn’t get proper

rest I will get manic. . . .” The record indicates that one manic episode in May 1994 resulted in the SWAT team being called to afriend’s residence to subdue him after h

e had made certa

in threats toward

his wife (appare

ntly , to thro w her out a window). This incident led to his admission into the Middle Tennessee Mental Health Institute.

Dr. Ira Rosenshein testified that he began treating Father in March 1995. He stated that Father complained to him of side effects from the medication or “from some medicines that he
was receiving for medical problems. Other times, [Father] would say he just [di d n’t] believe that he was man ic depressive an d he just didn’t wan

t to take the medica

tions . . . .” Rosenshe

in last treated Mr. Sipe on September 12, 1996. Rosenshein believes Father needs “monitor ing of h is mental status” to assure that he’s not going to have a manic or depressive episode.Rosenshein said there was on

ly treatmen

t for this particul

ar ill ness, n o cure. He proclaimeda recovery

rate of 50 to 65% “

from a manic episo

de” to stabiliz ation if on one’s prescribed

medication. Rosenshein further testified that there were no medications currently being prescribed

for the bipolar disorder that did not have some side effects. Rosenshein confirmed that
a person with bipolar disorder would have some periods of normalcy even without their medication, but that there was no certainty as to how long the period would last, and that even a person taking the presc ribed medic ation could likew ise su ffer a m anic e pisod e. In other words, the medicationis
no guarantee. Rosenshein stated tha t us ual ly a “stressor” trig gers the episod

e. Rosenshein also recommended that Father seek therapy for his antisocia l personality disorder.

Ms. Lucin

da Pins ence, a license

d psycholog

ical examiner, tes

tified that she fir

st treated Mr. Sipe in February 1996. According to her, the g oals of therapy included addressing issues regarding Mr. Sipe’s anger, his distrust for authority, his problems relating to other s and his selfesteem. He was also to receive psychiatri c monitoring. Pinsence stated that during treatment sessions, Father’s behavior could be “very combative,” and that “[s]ometimes he’s ve

ry blunt in his statements

. . . .” Pinsence has not treated Father since August 7 after he ceas ed comi ng to his sessions or scheduling a

ppointments. Pinsenc

e did not believe th

at Father had me

t the goals initial

ly enumerated

and that there were still “valid problems” concerning his social behav ior skills a

nd taking responsibility. Pinsence observ ed no assaultive be

havior by F

ather, only

“verbal hostility.” She found Father more “cooperative” as their therapy sessions progressed. She said that Father had since contacted her r

egarding con

tinuation of his ther

apy sess ions and that she was agr eeable in doing so. His reasons for missing appointments or failing to schedule them primarily concerned transportation dif

ficulties.

Glenda Copeland, a social counselor with DCS, testified as to her observations of the Sipes during their visitation periods with Joel. She did not fin d Father’s t reatment of the child “ age appr opriate” (playing airplane and boxing when the child was six or seven months old). Father seemedmore concerned with “confronting” her or a co-worker “on one issue or another” rather than playing with or h olding th e child. She found Mrs. Sipe’s behavior “very passive.” She did not ob serve a lot of holding, c uddling or kissing

of the baby . She described Mr s. Sipe as “detached ” from the child. She often observed M rs. Sipe feed the b

aby. She doe

s not believe Fath

er capableof

properly caring for his son, based specifically on “[h]is behavior to changes. The fact that he gets angry and . . . has shown no loving or bonding with that child . . . .” Ms. Cope

land also found Mrs
. Sipe “very dependent” on Mr. Sipe and stated that Mrs. Sipe, when asked whether she knew that she could possibly get

custody of Joel if she discontinued her relationship with Mr. Sipe, replied that she would “never jeopardize [her] marriage” and that her “marriage [came] first.” Copeland stated that her primary concern regarding Mrs. Sipe having the child was a “[f]ailure to protect.”

Ms. Lori Rhodes-Brown, the Department’s primary counselor

on this case, testified that the Sipes hadnot visited with Joel since July 1996. The trial court found that of the 64 weeks available to the Sipes to visit their child, Mrs. Sipe had done so on 23 occasions and Mr. Sipe, on 20. The record suppo

rts this finding. At least four or five of the scheduled visits were cancelled by the Department

due to the child’s poor health. As found by the trial court, the parents stated reasons for failing to visit were schedulingconflicts and Father’s allergic reaction to the visitation area.The trial court did not find th

esereasons “persuasive.” It is not dispute

d that the parents

have failed to pro vid e any c hil d su ppo rt s inc e Jo el w as t aken int o cu sto dy.

As to Mrs. Sipe, there was testimony that she met all the requirements of her plan of
care(albeit over

a long period of time) except the one requiring her to know Mr. Sipe’s prescribed medication and dosages and be aware of his compliance the

rewith, as well

as his counseling . Ms. Browntestified that her

primary concern rega

rding Mother’s c

ustody of the

child is “that she w

ould notbe able to protec

t the child from Mr.

Sipe should

anything occur.” One of the stated grounds for termination under

§ 36-1-113(g) i

s subsection (3)(

A), which states a

s follows:
(3)(A) 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: (i) The conditions which led to the child’s removal or o t her conditions which in all reasonable probability

would cause the c

hild to be subjected to further abuse or neglect and which, therefore, prevent the child’s retur

n to the care of th

e parent(s)

or guardian(s), still persist; (ii) There is little likelihood that thes e condi tions will be re medied a t an early date so that the child can be returned to the parent(s) or guardian(s) in the near future; and (iii) The contin

uation of the parent or g uardian and child relationship

greatly d imin ishes the child’s chan ces of early integration into a stable and permanent home.We find the record t o establish grounds for termination of Mrs. Sipe’s parental rights based on those hereinaboveidentified. Clearly, this child has had to struggle from day one of its life. He was born prematurely

with anemia and

immediately placed on a feeding tube.He has since endu red multiple
ear andrespiratory

infections,

including pneumonia. The record further indicates the possibility that he has sustained c

erebral palsy

. We concur in the f

ollowing observa

tion made by t

he trial court:

The minor child has a n umber of medical problems which have required numerous doctor visits. Thefoster father testified that the child requires a great deal of care wh ich he and his wife have provided, including transp orting him

to various appointm

ents as well as taking care

of him when he had to remain out of day care. At least some of the purported

reasons for the parent[s’ ] failure to visit the ir child were conflicts w

ith their schedule

s. If the par

ents cannot make arrangements

in their personal

lives and with

their jobs to make a one to two hour weekly

visit with th

e child, it is difficult to understand how t hey could

adequately meet the child’s needs should they have him in their home. . . . N

othing has been p

resented to sh

ow that circumstances have changed to allow them to do so at this time.
Although i t appear s from the record that the Sipes’ housing and employment situations are currently

stable and that Mr

. Sipe is functioning

well, without his

me dications, the record is clear that Mr. Sipe could e

xperience anothe

r manic episode w

ithout warning, e

specially if off his medications. B ased on the violen t nature of these

episodes and his vio

le nt tendenc ies, coupledwith Mrs. Sipe’s apparent unwillingness to protect her child from suc

h behavior even i

f to the detriment of her own marriage, convinces this Court that there exists clear and convincing evidence on whic

h to terminate the p

arental rights

of both parties as

to their son, Joel.

A case of this nature, involving the termination of parental rights of a natural parent is, indeed, one of the most difficult this Court is called upon to address. Our decisions in this regard must be driven by our paramount concern which is the best interest of the child(ren) involved. After
a thorough revie

w of the record

in this case, our decision convinces us that those interests have prevailed.
The judgment of t he trial court is

affirmed and this cause remanded for any further necessary proceedings. Costs are

assessed against the appellants, for which execution may issue if
nece ssa ry.____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ TOMLIN, S

r. J. (Concurs)