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

Briefs D ecem

ber 12, 200 3 STATE OF TENN ESSEE DEPART MENT OF CHILDR EN’S SERVICES v. G.C. Appeal from the Juvenile Court for Hamilton County Nos. 179520, 179521, 179522 Suzanne Bailey, Judge

FILED JANUARY 29, 2004 No. E2003-01532-COA-R3-CV

The trial court te

rminated the pare ntal rig hts of G.C. (“Mothe

r”) with respect to her minor children, I.A. J.C. (DOB: A

pril 3, 1 999 ), M .L.K .L.II (DOB: July 31, 2000), and J.E.L . (DOB: July 22, 2002). Mother appeals , arguing that

the evide nce pre pondera tes aga inst th e trial cou rt’s finding, by clear and convincing e

vidence , that stat

utory ground s exist for t

erminati on. We aff

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

Affirmed; Case Remanded C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in whichH ERSCHEL P. F RANKS and D. M ICHAEL S WINEY , JJ., joined. John A. Shoaf

, Chattano oga, Te

nnessee , for the

appella nt, G.C. Paul G . Summers, Attorney Gene ral and Reporter, and P. Robin Dixon, Jr., Assistant Attorn e y Genera l, Nashville, Tennessee, for the appellee, State of Tennes see Department of Children’s Service s. OPINION I. On December 18, 2001, the Tennessee Department of Children’s Services (“DCS”) filed a petition f or te mp or ar y custody of I .A.J.C. and M.L.K.L.I I. The petition allege s that I.A.J.C. and M.L. K.L. II

were depende

nt and neg

lected c hildren “ because they have both

been bur ned repe atedly by what appears to be a curling iron on their hands, necks and fac es.” The petition g oes on to st

ate that Mother hadan extensive criminal record and that the State had previously taken custody of two of her other children, one

of whom hadbeen burned on a heater. Upon the filing of the petition, the juvenile court entered an order placing temporary c are and custody of the children with DCS.1 Before the t rial began o n the termination of pa rental rights, DCS moved to voluntarily dismiss the ter minat ion petiti on with respect t o M .L.Sr. The trialcourt granted the motion.

2 E. M. W. is th e pu ta ti ve f at he r o f I. A. J. C. He did not contest the t ermination of h is pare ntal right s wit h respect to I.A.J. C., and t

he juveni le court

termi nated those r ight s eff ect ive February 28, 2003. E.M .W. did not appea l the termin ation. -2- On the day

of h is bi rth , J ul y 22, 200 2, D CS fil ed a pet it io n fo r te mp ora ry cu st ody o f J .E. L. The petit ion conta ined the f ollowing allega tions: [J.E.L.] . . . is a de

pendent a nd negl ected child within

the meaning of the law because [Mother] is current ly inca rcerated and further, because [Mother] was found by

[the trial c ourt] on Ma

y 14 , 2002, to have severely

abused two siblings of the subject child, [I.A.J.C.] and [M.L .K.L .II]. [Those two children] have been in the State’s custody since December 18, 2001. [Mo ther] has a total of 5 other children, none of whom are in her custody bec ause of [her] severely abusive behavior towards them. [Mother] has an extensive history of violent behavior towards children, an extensive criminal history , an d an extensive history

of coca ine abuse and prost

it ution . . . . The legal father of [J.E.L .], [M.L. Sr.] has ma intained an ongoing rel ationship with[Mother], both before and since her incarce ratio n. [M.L.Sr.] curren tly resides in the paternal grandmother’s home , where the children, [I.A.J.C.] and[M.L.K.L.I I] are placed. [M.L .Sr.] does not ha ve his own home and is not self-supporting due to enormous financ ial debt and c

hild suppor

t arrea ragesfor child

ren born from a previous marriage. The

Paterna l Grandmother will

not agree to care for [J.E.L.], until pare

ntage t esting d etermine s that [M .L.Sr.] is the biological father. There are no other known suitable relatives at this time, read y a nd willing

to ca re fo r [J.E. L.]

. On the same date the petition was filed, the juvenile court ordered tha t J.E.L. be placed in t

h e temporary c

ustody of DCS. On November 15, 2002, DCS filed a petition to terminate the parental rights of Mother, M.L.Sr. 1 , and E .M.W. 2 A bench t rial was held in the

insta nt case on May

23, 2003; Mother was incarcerated

at the time of tri al on a ggravate d chil d abus e charge s stemmin g from burning the children witha curling iron. At the conc lusion of th

e trial, t he court terminat ed the pa rental r ights of Mother, finding, by

clear and convincing evidence , that grounds for terminating Mother’s par ental rights existed and that termination was in the best interest of the children.-3- II. Our review of this non -jury

case is de novo ; however, the record comes to us accompa nied by a presumption of correctness that we must honor unless the evidence preponderates ag ainst the trial court’s findings. Tenn. R. App. P. 13 (d). No p resumptio n of corr

ectnessattache s to the lower court’s conclusions of law. Jahn v. Jahn , 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996). III. The law is well-settle d that “pa rents ha ve a fundamental r

ight to the care, cu stody, and control of their children.” In re Drinnon , 776 S .W.2 d 96, 9 7 (Ten n. Ct . App. 1988) (citi ng Stanley v. Illino is , 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)). However, this right is not absolute and ma y be termi nated if the re is c lear an d conv incin g evide nce ju stif ying termin ation under the pertinent statute. Santosky v. Kramer , 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Cl ear and convincing evidence is evidence which “eliminates any

serious or substantial doubt concerning the correctness of the conclusions to be drawn from the evidence.” O’Daniel v. Messier , 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995). The issu es raised in the pleadings, the evidence pr esented at trial, and the trial court ’ s finding s implicat

e the following s tatutory

provision s: Tenn. Code Ann. § 36-1-113 (Supp. 2003)

* * * (c) Termination of parental or guardianship rig hts must be based upon: (1) A finding by the court by clear and convincing evidence that the gro unds for termination [of] parental or guardianship rights have bee n established; and (2) That termination of the parent’s or guard ian’s rig hts is in the

best interests of the child. * * * (g) Initiation of termination of parental or guardianship rights may

be based up on any

of the fo llowing g

rounds: * * *-4- (2) There has been substantial noncompliance by the parent or guardian withthe statement of responsibilities in a permanency plan or a plan of care pursuant

to the provisions of title 37, chapter 2, part 4; * * *

Tenn. Code Ann. § 37-2-403 (Supp. 2003) (a)(1) Wi th in th ir ty ( 30 ) d ays of the date of foster care placement, an agency shall prepare a plan for each c hild in its foster care. . . . * * * (2)(A) The permanency

plan for any child in foster c are shall include a statement of responsibilities betweenthe parents, the agency and the caseworker of such ag ency. . . . * * * (C) Substantia

l noncom pliance by the pa rent with the statement of responsibilities prov ides grounds for the termination of parental rights, notwithstanding other statutory provisions for termination of parental rights, . . . . IV. Mother raises three issues for our consideration: (1) whether the evidence supports the trial court’s finding that Mothe r failed to substan

tially comply with the permane ncy plan; (2) w

hether the evidence sup ports a f

in ding tha

t termina tion of Moth

er’s pa rental r ights wa s justifie d pursuan t to Tenn. Code Ann. § 37-1-147; and (3 ) wh ether the evidence supports the trial court’s finding that DCS made reasonable efforts to reunify Mother with the child. A. The trial court found that Mother “failed to comply in a substantial manner with her foster care plan/permanency

plan respon sib ilities.” The plan required Mother to do the following: (1) under go a psychol ogical evalu ation and fo llow throu gh wi th any rec ommended treatment; (2) under go a pa

ren ting ass essment; ( 3) succe ssfully complete

parenti ng clas ses; (4) s uccessf ully complete a nger ma

nageme nt classe s; (5) und

ergo a n alcohol and drug assessme nt; (6) sub mit to random drug sc reening s; (7) maintain

s afe, stable housing for at least six consecutive months; (8) obtain and maint

ain leg al employ

ment for a t least six consecutive months; (9) refrain from engaging3 Ten n. Cod e Ann. § 3 7-1-147 (200 1) pro vides as follows: (a) The juvenile court shall be authorized to termina te the ri gh ts of a pa rent or guardian to a ch ild upo n the gro unds and p ursuan t to the p roce dure s set forth in title 36, ch apter

1, par t 1. (b) Upon entering an order to terminate parental or guardian rights t o a child, the court shal l awar d gua rdian ship o r partia l guard ianship of the ch ild as p rovid ed in the rel evant

provi sion s of

ti tl e 36, c hapte r 1, part 1. (c) The effect

of th e court’ s order termina ting pa rental o r guard ian rights shal l be as pr ovided in § 36- 1-113. -5- in any illeg al activity; (10) vol untar ily p ay

child supp ort; and ( 11) coop erate w ith and ma intain contact with DCS. The trial court found, by c lear and convincing evidence, tha tMother failed to substantia

lly comply with any of the aforementioned eleven obligations under the permanency

plan. If ever

there has been a clear case of substantial noncomplianc e with the plan, this is it. Mother’s sole argument on appeal with respect to this issue is that she complied with the plan “to t he extent th at she wa s able and capable of doing so.” Ho wever, Mother’s utter failure to comply with any of the ele

ven responsibilities severely u ndercut s this arg

ument. Accordingly , we find that the evidence does not prepond erate against the trial co urt’s finding s with res pect to the alleg ations tha t Mother f

ailed to substantially comply

with the permanency

plan. B. Mother next contends that “there is no clear and convinc i ng evid ence tha t justifiesa termination of [Mother’s] parental rights pursuant to [Tenn. Code Ann. §] 37-1-147.” 3 In support of this argument, Mother

relies upon State Dep’t of Children’s Servs. v. Defriece , 937 S.W.2d 954 (Tenn. Ct. App. 1996). In Defriece , we held that “evidence of a partial improve men t” in the mother’s parenting abilities was influential in our decision to reverse the tr ial cou r t’s finding, by clear and convincing evidence, that g rounds for terminating the mother’s parental rights existed. Id. at 961 (emph asis in ori ginal) . In th e instant c ase, Moth

er asse rts that her “many

examples of

partial improvement” should be enough to warrant a re versal of the trial court’s decision. We begin by

noting that Tenn. Code Ann. § 37-1-147, which is the statute cited by Mother in support of

her posit ion, has no

applica bility to her ar gument. This statute pertains solely to the juvenile court’s authority

to adjudic ate term

ination pr oceedings. As such, M other’s relianc e on it is misplaced. With respect to Mother’s reliance on the Defriece case, w e find tha t it is easil

y distingu ishable from the facts in the instant case. In Defriece , there was evidence that the mother had failed to provide her child with a suitable home; that she had a problem w ith drug s and alc ohol; that she was in

volved with sever

al diffe rent men ; and th at she had demonstrated an utter lack of-6-

stability in her life. Id. at 960. Ho wever, the rec ord in the case also reflected that the mother had attendedcou nseling sessions; completed p arenting classes; and completed a voca tional rehabilitation progra m. Id. In addition, there were no new allegations of drug and a lcohol abuse; the mother had a new job andwas working forty hours per week; she was involved in a stable relationship; and had a more stabilized home environment. Id. at 960-61. Based upon those part ial impro vements, we found that ther

e was no c lear an d convinc ing evid ence tha t a ll of the statutory factors had been satisfied which would justify termination of the mother ’s parental rights. Id. at 961. Unlike the mother in Defriece , Mother in the instant case has shown no sign of even partial improveme

nt. Indeed, the trial

court found that Mother had failed to substantially comply with any of the eleven requirements under the permane ncy plan. Ther

efore, wefind this issue to be without merit. C. Fi na ll y, Mother argues that the trial court err ed in determining that DCS made “reaso nable effortsto reunif

y the family

as requi red by [Tenn. Co de Ann. §] 37-1-166.” However, having thoroughly r

eviewed the record in this case, we find no indication that this issue was raised in the trial court, ne

ither in th e pleadings nor

in the cour se of the

trial itse lf. The la w is well-settled that issues not raisedat trial may not be ra ised for the first time on appeal. Simpson v. Frontier Cm ty. Credit Union , 810 S.W.2d 1 47, 153 (T enn. 1991 ); Lawrence v. Stanford , 655 S.W.2d 927, 929 (Tenn. 1983). Further, we are unable to construe the flavor of the trial testimony in such a way as would supp o rt the fact that this issue was tried by the implied consent of the parties. See Zack Cheek Builders, Inc. v. McLeod , 597 S.W.2d 888, 890 (Tenn. 1980). Accord ingly , we dec line to address Mother’s third issue. V. The judgment of the trial court is affirmed. This case is remanded for enforce ment of the trial court’s judgmen

t and for collecti on of cost s assesse d below, a ll pursuant

to applic able law . Costs on appea l are taxe d to the ap

pellant, G.C.

_______________________________

CHARLES D. SUSANO, JR., JUDGE