IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

April 16, 2010 Session

IN RE KEISHEAL N.E. ET AL.

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Appeal from the Juvenile Court for Coffee County

No. 935-05J Timothy R. Brock, Judge

No. M2009-02527-COA-R3-PT - Filed May 28, 2010

Father appeals the termination of his parental rights to his children. The trial court found

three grounds upon which Father’s parental rights could be terminated: lack of mental

capacity to care for the children, abandonment by failure to visit, and substantial

noncompliance with the permanency plan. The psychologist who testified at trial stated that

Father was presently unable to properly care for his children due to the diagnosis of

schizoaffective disorder. The psychologist also testified that it was possible Father could

become a competent parent with the proper medication and treatment. The Department,

however, provided no mental health services to assist Father. The statutory ground of mental

incompetency as a basis for the termination of a parent’s rights requires clear and convincing

proof that the parent’s mental condition is presently so impaired and is so likely to remain

so that it is unlikely the parent will be able to care for the children in the near future. The

Department proved that Father’s mental condition was such that he could not presently care

for the children; however, the Department failed to prove that Father’s mental condition is

likely to remain impaired to the degree that it is unlikely Father will be able to care for the

children in the near future. We have also determined the Department was not excused from

exerting reasonable efforts and yet it failed to establish that it exerted reasonable efforts to

assist Father to accomplish the goal of reunification because it provided no services that dealt

with the root of Father’s problems, his mental illness. For the above reasons, we find the

Department failed to prove any ground upon which Father’s parental rights could be

terminated. Accordingly, we reverse the termination of Father’s parental rights.

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

FRANK G. CLEMENT, JR., J., delivered the opinion of the Court, in which ANDY D. BENNETT

and RICHARD H. DINKINS, JJ., joined.

This Court has a policy of protecting the identity of children in parental termination cases by 1

initializing the last names of the parties.
Jeffrey C. Gruber, Murfreesboro, Tennessee, for the appellant, Keith E.

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

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

OPINION

The Department of Children’s Services filed a petition to declare the three children

at issue dependent and neglected on December 21, 2005, after learning their mother, Rachel

E. (Mother), had admitted to using cocaine and marijuana in the presence of the children.

The children’s father, Keith E. (Father), was not living with the children at the time; he was

residing in Dayton, Ohio. The children were placed in the temporary custody of their paternal

grandmother.

The dependency and neglect hearing occurred on February 6, 2006 and both Mother

and Father were present at the hearing. Following the hearing, the court declared the children

dependent and neglected and adopted a safety plan that specified several requirements for

Mother but none for Father. The same safety plan was adopted on July 13, 2006 and January

25, 2007, and as before, none of the safety plans listed any requirements or recommendations

for Father. Shortly thereafter, the placement of the children was changed; they were placed

in the custody of the maternal grandmother in Tullahoma, Tennessee.

On May 9, 2007, the Department filed a petition to modify the safety plan. The

Department alleged that Mother was endangering the children because she and her domestic

partner, who had a history of domestic violence and sexual abuse, were living with the

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children at the home of the maternal grandmother. At the time, Father was residing in

Murfreesboro, Tennessee. The Department also petitioned the court to place the children into

the custody of the Department, which the trial court granted on May 10, 2007.

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On May 29, 2007, permanent parenting plans were created for the three children.

Father was not present at the meeting to create the permanency plans. The plans listed many

requirements of Mother, while Father’s responsibilities were minimal. Father was required

to stay in contact with his Department caseworker, maintain regular, supervised visitation

Mother had previously obtained an order of protection against this man due to domestic assault on 2

Mother.

In its Petition for Temporary Custody, the Department noted that both Mother and Father were

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under court ordered safety plans. Notably, none of these safety plans addressed Father in any way nor did

they place any requirements upon Father. 

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with the children, and contact the Department to arrange each visitation. Specifically, the

plan stated that “due to the lack of relationship” Father would “need to contact DCS and at

that time visitation will be determined.” Subsequently, the permanency plan provided that

the goal was to reunify the children with Father with the desired outcome that “[Father] will

have a more positive relationship with [child].” The actions listed as needed in order to

achieve this desired outcome were:

1a) In the event that [Father] desires visitation, he will need to contact DCS

and at that time visitation will be determined.

1b) [Father] will be given opportunity to participate in the permanency plan.

As Father was not at the meeting, he did not sign or ratify the permanency plans. The plans

were ratified by the court four months later.

On June 1, 2007, after the creation of the permanency plans, Ms. Brandi Shelton was

assigned as the Department caseworker. Ms. Shelton’s first contact with Father was at a court

hearing in July 2007, at which time she “briefly” discussed the requirements of the

permanency plan with Father regarding his contact with the Department and visitation with

the children. At this hearing, the trial court ordered a home study of Father’s home to be

completed within thirty days; however, the home study never occurred. Ms. Shelton stated

that Father was “uncooperative” in setting up the home visit, and, thus it was never

completed.

Father’s first visit with his children after the July 2007 hearing was on August 8, 2007.

Father’s next visit with the children was a year later, in August 2008. Father did not see the

children again until February 2009. Father told Ms. Shelton that transportation issues

prevented him from visiting his children more frequently, as the visits were in Tullahoma and

Father lived in Murfreesboro. Father also stated that he did not visit the children more

frequently because he did not want to interfere with attempts by Mother to reunite with the

children and he believed that when Mother obtained custody of the children that he and she

would arrange visitation.

On July 11, 2008, the Department filed the petition to terminate the parental rights of

both parents. The parental rights of both parents were terminated by order entered on October

1, 2009. Mother did not appeal the termination of her parental rights. Accordingly, we will

focus our attention on the facts and procedural history that are relevant to Father.

The initial petition filed by the Department alleged two grounds for termination, that

Father abandoned the children by failing to visit and that he was in substantial

noncompliance with the permanency plan. Eight months after the petition was filed, the

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Departmentsent Father letters explaining the requirements of visitation and the consequences

of not maintaining regular visitation. Four letters were sent to Father, the first in February

2009 and the last in April 2009. Father visited with the children on February 19, 2009, April

2, 2009, April 15, 2009, and May 20, 2009. Two other scheduled visits were cancelled

because Father did not call to confirm the visitation; one of the days Father called the day of

the visit to confirm, but the visit had already been cancelled by the caseworker.

The trial on the petition to terminate Father’s parental rights began on May 21, 2009.

The Department presented the testimony of Father’s Department caseworker, Brandi Shelton,

the testimony of Cheryl Neal, a licensed social worker who had worked with Father at The

Guidance Center in Murfreesboro, and the testimony of the director of CASA, Lynne Farrar,

who observed two visits between Father and the children.

Ms. Shelton testified that she had trouble staying in contact with Father because he

did not have his telephone and she had to call his mother in order to contact him. She also

stated that Father was “evasive” when answering questions and that she often had to ask

Father questions repeatedly in order to get an answer. Though she stated contact with Father

was sporadic and difficult, she maintained that she instructed Father on “numerous”

occasions about his requirements under the permanency plan. Ms. Shelton also testified that

at some point she realized it was best to put Father’s requirements regarding visitation into

writing and began sending him letters; she thought Father might need help remembering.

Ms. Farrar, the director of CASA, testified that she witnessed a one-hour visitation

in April 2009 between Father and the children at a McDonald’s. She stated that the visit

“seemed to be going ok” until Father whispered something to one of the children and Ms.

Shelton instructed him not to do that, after which Father became upset. She was also present

at another visit that took place at Father’s apartment and then at a McDonald’s. During this

visit, Father became upset when Ms. Shelton criticized the way he was playing with the

children; Ms. Farrar stated that one child became upset when Father shouted “my son” or

“my boy” loudly. She also testified that the children were affectionate with Father at times,

but she attributed this to the children’s affectionate nature.

Cheryl Neal, a licensed social worker who worked with Father at The Guidance

Center, testified that Father had been diagnosed by a psychiatrist at the facility with

schizoaffective disorder, which is a combination of schizophrenia and mood disorder. She

explained that Father was not referred by the Department of Children’s Services; instead, he

was referred in the spring of 2008 by hospital staff following his hospitalizations due to two

episodes of hallucinations. One such episode occurred on February 22, 2008, when Father

was found in the floor of a laundromat rocking back and forth and repeating his name and

birth date. In another episode, Father believed that insects were crawling all over him.

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Following her first contact with Father in the spring of 2008, Ms. Neal met with Father five

times. Her last visit occurred one week prior to the first day of trial, in May 2009. Ms. Neal

testified that the frequency of their meetings was not unusual, although Father sometimes

missed scheduled appointments. Based on his condition at their last visit, Ms. Nealstated that

she did not believe Father would be able to properly care for his children, that Father’s

compliance with his medication was questionable, but such problems were “consistent” with

his diagnosis of schizoaffective disorder. She stated that typical symptoms of his mental

illness were poor judgment and not showing up for appointments. Ms. Neal also stated that

Father would likely be more stable with a good support system and the resumption of case

management services. Ms. Neal stated that Father had benefitted from their services and,

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when asked what might assist Father further with his mental illness, Ms. Neal stated that a

psychosocial day program often benefitted persons with schizoaffective disorder. Father was

also examined by a psychiatrist and assigned a case manager at The Guidance Center;

however, it was Ms. Neal’s role to follow-up with Father regarding therapy the hospital

psychiatrist had recommended.

The testimony presented at trial concerning Father’s mental illness caused the court

to question whether Father’s failure to visit the children and his noncompliance with the

permanency plan were willful. Ms. Shelton, the caseworker, stated that she became aware

that Father was receiving psychological counseling in August of 2008 and, in February 2009,

she became aware that Father had seen a psychiatrist. Ms. Shelton also testified that she

requested that Father sign a release so she could obtain his medical records. Father informed

her in April 2009 that he had done so; however, it was not until one week before trial, May

2009, that Ms. Shelton spoke with someone at The Guidance Center about Father’s mental

health.

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At the close of the proof on the first day of trial, the Department moved to amend their

petition to add mental incompetence as a ground for termination of Father’s parental rights.

The trial court granted the amendment and then the trial court, acting sua sponte in light of

Father’s schizoaffective disorder, requested the parties brief the issue of whether Father’s

failure to visit his children and comply with the permanency plan was willful. By agreement

of the parties, Thomas C. Monroe, III, Psy.D., a licensed clinical psychologist conducted a

Ms. Neal testified that Father ceased receiving case management services in January 2009, due to 4

an “oversight.” Father was briefly incarcerated for driving on a suspended license, at which time services

were suspended. Ms. Neal stated that it was probably an “oversight” on their part that their services had not

resumed.

Ms. Shelton stated that she left a prior message with The Guidance Center that was not returned.

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The record indicates the mental health facility suffered significant damage in a tornado the previous week

and was not open for business.

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psychological assessment of Father on August 8, 2009. He first conducted a clinical

interview, then a Personality Assessment Inventory (PAI), a Wechsler Adult Intelligence

Scale – 3 Edition subscale (WAIS) examination, and a Rorschach evaluation. Dr. Monroe

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prepared a written Psychological Assessment, dated August 16, after which the evidentiary

deposition of Dr. Monroe was taken. His deposition was introduced into evidence on the

second day of trial, September 10, 2009.

Dr. Monroe testified in pertinent part that Father meets the diagnostic criteria for

schizoaffective disorder. He stated that Father was actively delusional when they met and

Father reported a history of auditory hallucinations, depressive episodes, and some manic

symptoms, if not complete manic episodes. Dr. Monroe explained that “[s]chizoaffective

[d]isorder is like a combination of schizophrenia, where there are hallucinations and

delusions, and an affective disorder, such as depression or bi-polar disorder.” He further

explained that: “Strict straight-forward schizophrenia does not generally have a mood

component, where there are mood congruent hallucinations or mood congruent delusions.

Straight schizophrenia is just a thought disorder.” When asked whether Father can become

capable of caring for his children, Dr. Monroe stated: “Possibly. If he seeks treatment and

if they find good treatments for what – for his illness, and he takes the medication, he

possibly could become a competent parent.” He then stated that Father could have up to a 50

percent success rate with proper treatment, and that it should be known within six months if

there is any chance for him to be able to properly care for his children.

Dr. Monroe additionally made the following recommendations:

1. [Father] meets the diagnostic criteria for Schizoaffective Disorder, type not

specified. He should seek medical treatment from a mental health center

immediately as a requirement for any possible attempt at familial

reconciliation. He should comply with his doctor’s orders for a period of no

less than 6 months prior to any further consideration as a placement option for

his children. At that time, the court and/or DCS may require further testing or

evaluation to determine if the treatment has brought about sufficient

improvement to warrant further consideration as a placement for his children.

(emphasis added).

2. If [Father] is unwilling to accept and follow medical treatment, he should

not be considered as a placement for his children. His current functioning will

not allow him to serve in that capacity.

The deposition of Dr. Monroe was the only evidence presented on the second day of

the trial. After counsel were afforded the opportunity to make closing statements, the court

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took the case under advisement. On October 1, 2009, the trial court issued an order finding

the Department had proven the grounds of abandonment by failure to visit, substantial

noncompliance with the requirements of the permanency plan, and mental incompetence. The

court also found that termination was in the best interests of the children and therefore it

terminated Father’s parental rights to all three children. Father filed a timely appeal.

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ANALYSIS

Parents have a fundamental right to the care, custody and control of their children.

Stanley v. Illinois, 405 U.S. 645, 651 (1972); Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn.

1993). This right is superior to the claims of other persons and the government, yet it is not

absolute. In re S.L.A., 223 S.W.3d 295, 299 (Tenn. Ct. App. 2006).

Parental rights may be terminated only where a statutorily defined ground exists.

Tenn. Code Ann. § 36-1-113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In

re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). The petitioner has the burden of

proving that there exists a statutory ground for termination, such as abandonment or failing

to remedy persistent conditions that led to the removal of the child. Tenn. Code Ann. §

36-1-113(c)(1); Jones, 92 S.W.3d at 838. Only one ground need be proved, so long as that

ground is proven by clear and convincing evidence. See In re D.L.B., 118 S.W.3d 360, 367

(Tenn. 2003). In addition to proving one of the grounds for termination, the petitioner must

prove that termination of parental rights is in the child’s best interest. Tenn. Code Ann. §

36-1-113(c)(2); In re F.R.R., 193 S.W.3d 528, 530 (Tenn. 2006); In re A.W., 114 S.W.3d

541, 544 (Tenn. Ct. App. 2003); In re C.W.W., 37 S.W.3d 467, 475-76 (Tenn. Ct. App. 2000)

(holding a court may terminate a parent’s parental rights if it finds by clear and convincing

evidence that one of the statutory grounds for termination of parental rights has been

established and that the termination of such rights is in the best interests of the child).

Therefore, a court may terminate a person’s parental rights if (1) the existence of at least one

statutory ground is proved by clear and convincing evidence and (2) it is clearly and

convincingly established that termination of the parent’s rights is in the best interest of the

child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d 793, 810

(Tenn. 2007); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

Whether a statutory ground has been proved by the requisite standard of evidence is

a question of law to be reviewed de novo with no presumption of correctness. In re B.T., No.

M2007-01607-COA-R3-PT, 2008 WL 276012, at *2 (Tenn. Ct. App. Jan. 31, 2008) (no

Tenn. R. App. P. 11 application filed) (citing In re Adoption of A.M.H., 215 S.W.3d at 810).

The issue of substantial noncompliance with the requirements of a permanency plan is a

The court also terminated Mother’s parental rights but she did not appeal.

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question of law; therefore, it is reviewed de novo with no presumption of correctness. In re

Valentine, 79 S.W.3d at 546 (citing Langschmidt v. Langschmidt, 81 S.W.3d 741, 744-45

(Tenn. 2002)).

ISSUES

Father raises three issues. One, he contends the evidence does not establish that his

mental condition is presently so impaired and is so likely to remain impaired that it is

unlikely that he will be able to care for his children in the near future. Two, he contends his

substantial noncompliance with the requirements of the permanency plan was not willful.

Three, he contends his failure to visit his children was not willful. We will discuss each in

turn.

THE DEPARTMENT’S RESPONSIBILITIES

The Department is the agency with the responsibility for the care and protection of

dependent and neglected children; it plays the pivotal role in such matters. Because of the

Department’s role in the lives of dependent and neglected children and their families, the

General Assembly has imposed on the Department “the responsibility to make reasonable

efforts to reunify children and their parents after removing the children from their parents’

home.” In re Tiffany B., 228 S.W.3d 148, 157-58 (Tenn. Ct. App. 2007) (citing Tenn. Code

Ann. § 37-1-166) (emphasis added).

The General Assembly recognized, as a matter of public policy, that families are

among the fundamental building blocks of society, Tenn. Code Ann. § 36-3-113(a); thus, the

statutes empowering the courts to remove children from the custody of their parents state that

one of the Department’s primary purposes is to protect children from “unnecessary

separation” from their parents. In re Tiffany B., 228 S.W.3d at 157 (citing Tenn. Code Ann.

§ 37-2-401(a)). In this regard,

The Department must memorialize its efforts in an individualized permanency

plan prepared for every dependent and neglected child placed in its custody.

The requirementsin each permanency plan must be directed toward remedying

the conditions that led to the child’s removal from his or her parent’s custody.

In re Valentine, 79 S.W.3d at 547; In re M.J.B., 140 S.W.3d at 656-57; In re

L.J.C., 124 S.W.3d 609, 621 (Tenn. Ct. App. 2003). Reflecting the Tennessee

General Assembly’s understanding that the ability of parents to rehabilitate

themselves depends on the Department’s assistance and support, permanency

plans place obligations on the Department to help parents become better able

to provide their children with a safe and stable home and with consistent and

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appropriate care. In re C.S., Jr., No. M2005-02499- COA-R3-PT, 2006 WL

2644371, at *9 (Tenn. Ct. App. Sept. 14, 2006).

Id. at 158 (footnote omitted).

MENTAL INCOMPETENCE

Tennessee Code Annotated § 36-1-113(g)(8) provides that the court may terminate

the parental rights of a parent if it determines on the basis of clear and convincing evidence

that:

(B) (i) The parent . . . of the child is incompetent to adequately provide for the

further care and supervision of the child because the parent’s . . . mental

condition is presently so impaired and is so likely to remain so that it is

unlikely that the parent . . . will be able to assume or resume the care of and

responsibility for the child in the near future, and . . . ;

(C) In the circumstances described under subdivisions (8)(A) and (8)(B), no

willfulness in the failure of the parent . . . to establish the parent’s . . . ability

to care for the child need be shown to establish that the parental . . . rights

should be terminated;

Tenn. Code Ann. § 36-1-113(g)(8)(B)-(C) (emphasis added).

As the statute expressly provides, the Department has the burden to demonstrate by

clear and convincing evidence both that Father is presently unable to care for the children

and that it is unlikely that Father will be able to assume the care of and responsibility for the

children in the near future. Tenn. Code Ann. § 36-1-113(g)(8). We find that the Department

established that Father is presently unable to care for the children due to his mental condition;

however, the Department failed to demonstrate by clear and convincing evidence that it is

unlikely that Father would be unable to care for the children in the near future. To the

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contrary, the expert testimony presented at trial, principally that of Dr. Monroe, established,

The clear and convincing evidence standard is a heightened burden of proof which serves to 7

minimize the risk of erroneous decisions. In re C.W.W., 37 S.W.3d at 474; Matter of M.W.A., Jr., 980 S.W.2d

620, 622 (Tenn. Ct. App. 1998). Evidence satisfying this high standard produces a firm belief or conviction

regarding the truth of facts sought to be established. In re C.W.W., 37 S.W.3d at 474. Clear and convincing

evidence should produce a firm belief or conviction with regard to the truth of the allegations sought to be

established. In re Estate of Armstrong, 859 S.W.2d 323, 328 (Tenn. Ct. App. 1993); Brandon v. Wright, 838

S.W.2d 532, 536 (Tenn. Ct. App. 1992); Wiltcher v. Bradley, 708 S.W.2d 407, 411 (Tenn. Ct. App. 1985).

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without contradiction, that Father, with proper treatment and medication over a period of six

months, may be appropriate for consideration as a placement option for his children. Dr.

Monroe further stated that persons with Father’s diagnosis have up to a 50 percent success

rate with proper treatment and medication.

It is also very pertinent that Dr. Monroe recommended that Father immediately receive

medical treatment from a mental health center as a requirement for any possible attempt at

familial reconciliation; yet the Department provided no services to assist Father with his

mental health needs. To the contrary, its only effort was to move to amend the petition to

terminate Father’s parental rights on the ground that Father was mentally incompetent to care

for his children.

The evidence in the record reveals that the Department should have included a mental

health evaluation or assessment as part of Father’s permanency plan. Further, if the

evaluation recommended mental health services or treatment, the Department had an

affirmative duty to exert reasonable efforts to provide the mental health services, if such

services were reasonable to further the plan of reunification of Father with his children. See

Tenn. Code Ann. § 37-1-166(g)(1). The testimony by the caseworker and the affidavit

regarding the Department’s efforts reveal that essentially no services were offered to assist

Father. More importantly, no mental health services were offered to assist Father to

accomplish the stated goal of reunification with his children.

Reasonable efforts are statutorily defined as the “exercise of reasonable care and

diligence by the department to provide services related to meeting the needs of the child and

the family.” Tenn. Code Ann. § 37-1-166(g)(1). The factors the courts are to use to determine

reasonableness include: (1) the reasons for separating the parents from their children, (2) the

parents’ physical and mental abilities, (3) the resources available to the parents, (4) the

parents’ efforts to remedy the conditions that required the removal of the children, (5) the

resources available to the Department, (6) the duration and extent of the parents’ efforts to

address the problems that caused the children’s removal, and (7) the closeness of the fit

between the conditions that led to the initial removal of the children, the requirements of the

permanency plan, and the Department’s efforts. In re Tiffany B., 228 S.W.3d at 158-59

(citing In re Giorgianna H., 205 S.W.3d 508, 519 (Tenn. Ct. App. 2006)) (footnote omitted).

While the Department does not have to exert herculean efforts, they must do more than “rely

on parents to facilitate their own rehabilitation.” In re A.R., No. M2007-00618-COA-R3-PT,

2007 WL 4357837, at *5 (Tenn. Ct. Ap. Dec. 13, 2007) (citing In re M.B., No. M2006-

02063-COA-R3-PT, 2007 WL 1034676, at *5 (Tenn. Ct. App. Mar. 30, 2007)).

This court has repeatedly addressed the importance of Department employees using

“their superior insight and training to assist parents” in remedying the problems that lead to

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removal of the children, including mental health problems, and the importance of the

Department exerting reasonable efforts to assist a parent whose mental condition presents an

obstacle to reunification. See In re M.A.P., 2009 WL 2003357, at *16 (Tenn. Ct. App. July

10, 2009) (quoting In re C.M.M., 2004 WL 438326, at *7 (Tenn. Ct. App. March 9, 2004)).

While a few cases hold the Department is not usually required to exert efforts to assist a

parent when the ground of mental incompetence is proven, this is not part of the statutory

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scheme. The Department is relieved of this obligation when the court finds an aggravated

circumstance exists. See Tenn. Code Ann. § 37-1-166(g)(4)(A)-(C) ; In re B.L.C., 2007 WL

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4322068, at *9 (Tenn. Ct. App. Dec. 6, 2007).

There are cases in which a parent is proven to be so mentally incapacitated that efforts

by the Department to address the parent’s mental health issues would be in vain. In those

cases, where (1) the parent’s mental condition is presently so impaired and (2) the parent’s

Two of these cases are In re C.M.M., 2004 WL 438326, and Dep’t of Children’s Services v. M.R.N.,

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No. M2006-01705-COA-R3-PT, 2007 WL 120038 (Tenn. Ct. App. Jan. 17, 2007). In footnote 26 of the

C.M.M. opinion, the court states: “Termination proceedings based on the grounds in Tenn. Code Ann. §

36-1-113(g)(4)-(8) usually will not require the Department to demonstrate that it has made reasonable efforts

to reunite a child with his or her parents.” In re C.M.M., 2004 WL 438326 at *7 (emphasis added). Three

years later, in M.R.N., this court makes two references to C.M.M. on page twelve of the opinion. In the first

reference, M.R.N. correctly quotes C.M.M. stating: “Termination proceedings based on the grounds in

Tenn.Code Ann. § 36-1-113(g)(4)-(8) usually will notrequire the Department to demonstrate that it has made

reasonable efforts to reunite a child with his or her parents.” M.R.N., 2007 WL 120038 at * 12 (quoting In

re C.M.M., 2004 Tenn. App. LEXIS 160, at *28, n. 26, 2004 WL 438326). In the second reference to C.M.M.

on page 12, M.R.N. states: “As we have stated, DCS is not required to establish reasonable efforts in cases

involving the statutory ground of mental incompetence of the parent.” M.R.N., 2007 WL 120038 at * 12. The

term “usually” does not appear in this sentence. We believe the omission of that qualifying term is

significant; accordingly, we believe the court’s statement that reasonable efforts are not required in cases

involving the ground of mental incompetence is a misconstruction of C.M.M. and Tenn. Code Ann. § 36-1-

113(g)(8)(B). The statutory ground of mental incompetency has two essential components, both of which

the Department mus prove by clear and convincing evidence. As Tennessee Code Annotated § 36-1-

113(g)(8)(B) expressly provides, the Department is required to prove the parent “is incompetent to

adequately provide for the further care and supervision of the child because the parent’s. . . mental condition

is presently so impaired and is so likely to remain so that it is unlikely that the parent . . . will be able to

assume or resume the care of and responsibility for the child in the near future, . . .”

Tenn. Code Ann. § 37-1-166(g)(4) providesthat reasonable effortsshall not be required if the court 9

has determined that the parent has subjected the child or any sibling or half-sibling of the child, or any other

child residing in the home to “aggravated circumstances” as defined in Tenn. Code Ann. § 36-1-102.

Subsection (B)references Tenn. Code Ann. § 36-1-113, which lists the aggravating circumstances to be when

the parent has committed murder, voluntarymanslaughter, aided or abetted, attempted, conspired, or solicited

to commit such a murder or such a voluntary manslaughter, or committed a felony assault that results in

serious bodily injury to the child or any sibling or half-sibling of the child who is the subject of the petition

or any other child residing temporarily or permanently in the home.

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mental condition is so likely to remain so that it is unlikely that the parent will be able to

resume responsibility for the child in the near future, the Department is excused from

exerting efforts to reunify the parent and child. That has not been proven to be the case here,

at least not yet.

Mental illness compromises a parent’s ability to address his or her own problems and

“a parent with serious mental illness cannot reasonably be expected to simply lift herself up

by the bootstraps with no assistance. In re M.A.P., 2009 WL 2003357, *18 (citing In re A.R.,

2007 WL 4357837, at *6-10). Therefore, the fact that a parent in need of mental health

services does not request the assistance of the Department to deal with his or her mental

health needs does not relieve the Department of its responsibility to exert reasonable efforts

to assist the parent. To the contrary, we have emphasized the fact that the Department’s

employees are to “use their superior insight and training to assist parents” in remedying the

problems that lead to removal of the children, including mental health problems. Id.

In the matter of M.A.P., we determined the Department failed to exert reasonable

efforts to assist the mother “with respect to her underlying mental illness.” even though she

did not request such services. Id. at *1; accord In re A.R., 2007 WL 4357837 (reversing the

termination of parental rights where the Department was aware that the parents needed

significant psychological services and failed to provide such services). As is the case here,

the mother in M.A.P. was diagnosed with schizoaffective disorder. Id. The court referred to

this condition as the “root problem” yet the Department failed to provide any services to

address the root problem. Id. at *16. The court in that case went on to hold that the assistance

provided to the mentally ill parent was “simply inadequate; there was a complete failure to

provide any assistance at all to Mother with her fundamental challenge, her mental illness.”

Id. at *18.

The Department did not have actual notice that Father was diagnosed with

schizoaffective disorder until the week prior to trial; however, the Department’s caseworkers

should have ascertained, at an earlier date, by using their superior insight and training that

Father had a mental condition that compromised his ability to comply with the Permanency

Plan. Nevertheless, there were more than adequate signs, prior to the filing of the petition,

which indicated that Father was substantially impaired by a mental condition or mental

illness. Moreover, the Department’s caseworker was aware long before trial that Father was

receiving some form of mental health counseling yet she made no inquiries concerning his

mental health or services that he needed. We also note that the Department was advised that

Father was diagnosed with schizoaffective disorder in April of 2009, a month prior to the

final hearing, yet the only affirmative step the Department took at that time was to amend the

petition to additionally assert that he was mentally incompetent or mentally incapacitated to

properly care for the children.

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COMPLIANCE WITH THE PERMANENCY PLAN

As we discussed previously, the Department of Children’s Services is the state agency

with primary responsibility for the care and protection of dependent and neglected children.

It plays a direct role in the removal of most dependent and neglected children from their

parents’ custody, and Tennessee’s juvenile courts regularly place these children in the

Department’s custody. Because of the prominent role that the Department plays in the lives

of so many dependent and neglected children, the Tennessee General Assembly has explicitly

imposed on the Department the responsibility to make reasonable efforts to reunify children

and their parents after removing the children from their parents’ home. Tenn. Code Ann. §

37-1-166.

The primary purpose of permanency plans and, thus the requirements in each

permanency plan must be directed toward remedying the conditions that led to the child’s

removal from his or her parents. In re Valentine, 79 S.W.3d at 547; In re M.J.B., 140 S.W.3d

at 656-57; In re L.J.C., 124 S.W.3d at 621. In furtherance of an appropriate plan, the

Department must exert reasonable efforts to reunify parents and their children by, inter alia,

exercising “reasonable care and diligence . . . to provide services related to meeting the needs

of the child and the family.” In re Tiffany B., 228 S.W.3d at 157 (citing Tenn. Code Ann. §

37-1-166(g)(1)) (emphasis added). Accordingly, a key component of any permanency plan

is “the closeness of the fit between the conditions that led to the initial removal of the

children, the requirements of the permanency plan, and the Departments efforts.” Id. at

158-59 (citing In re Giorgianna H., 205 S.W.3d at 519) (footnote omitted). The Tennessee

General Assembly has recognized that one of the most effective ways to improve the lives

of dependent and neglected children is to improve the ability of their parents to be nurturing

caregivers. Id. at 157. Improving parenting skills results in better parents and, in turn, happier

and more well-adjusted children. Id.

In this case, the permanency plans crafted by the Department stated that the goal for

Father was reunification, yet the only requirements of Father were that he contact the

Department to schedule visitation, maintain regular visitation, and stay in contact with his

Department caseworker. Notably, there were no requirements that Father take parenting

classes, obtain suitable housing, or maintain steady employment; there were also no

requirements that Father obtain a mental health evaluation or treatment.

The children were removed when they were residing with Mother, not Father;

nevertheless, Father’s parenting skills were suspect when the children were removed from

their mother’s care. Father’s parenting skills, or lack thereof, should have become even more

suspect as time passed, yet at no time did the Department require that Father take parenting

classes, obtain suitable housing, maintain steady employment, or have a mental health

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evaluation. The absence of any of these requirements is counterintuitive to the goal of

reunification.

The record clearly reveals the Department never believed Father was fit to care for the

children; accordingly, the Departmentshould have crafted a plan to assist Father in achieving

the plan goal of reunification. It seems most disingenuous that the stated goal was

reunification, yet the only requirement was visitation. If the Department had no expectations

of Father being able to care for the children, the stated goal could have been termination of

Father’s rights from the inception.

Not only were the requirements of the plan deficient, the Department’s efforts were

as well. Tennessee Code Annotated § 37-1-166(c) requires that the Department file an

affidavit demonstrating the reasonable efforts taken by the Department. Ironically, the

affidavit of the Department’s “reasonable efforts” to assist Father is titled “Affidavit of Case

Manger [sic] Brandie Shelton Concerning Criteria for Termination of Parental Rights.” In

10

it, Ms. Shelton states:

2. Prior to the filing of the termination of parental rights in this matter on July

11, 2008 two separate sets of plans had been drafted. The initial plans were

drafted on May 29, 2007. . . .

11

3. The child’s father. . .was given notice of that meeting by notice sent to his

most recent address, based upon the records in the file. [Father] did not attend

this meeting.

3.(sic) I took over this case on Friday June, 1 2007 as case manager. On

Monday June 4, 2007, I presented the plans to the legal department’s

administrative assistant to be presented to the court for approval. I have been

Tenn. Code Ann. § 37-1-166(c) requires that the Department file an affidavit demonstrating the

10

“reasonable efforts” taken by the Department, not efforts “for termination.” The trial transcript indicates that

the affidavit was not filed at the same time as the petition to terminate parental rights as the Department’s

attorney indicated to the court that an affidavit would be filed in order to comply with the statutory

requirements. This is the only affidavit in the record.

The rest of the sentence appears incomplete as no further dates are given for later permanency 11

plans. Additionally, it does not appear that a second set of permanency plans was ratified by the trial court

in regards to Father. In its brief, the Department references an order of the court from a permanency hearing

which states that the Department intended to add adoption as a dual goal along with reunification. However, 

the second set of permanency plans appears nowhere in the record and statements in the trial transcript

indicate that the second set of permanency plans was not ratified. 

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a case manger [sic] for 31/2 years with the Department and have maintained

a case load of approximately 15 children since that time. Each year I am

involved in preparation of approximately 30 permanency plans. My job

requirements and my standard method of operations, which I was utilizing on

June 1, 2007, is for the case manager to mail a copy of each set of plans to

each child’s parents by U.S. mail to the parent’s most recent address if the

parent does not attend the meeting. This is an invariable habit.

12

4. I would have mailed a copy by U.S. mail postage prepaid to his address at

. . . Each plan had attached to it the Criteria and Procedures for Termination

of Parental Rights. A copy of the Criteria is attached to this affidavit. This

document outlines the legal consequences for the parents’ actions for, among

other acts, the parents’ failure to visit and support their children, known as

abandonment. This was provided to [Father] each time the new plans were

prepared.

5. Plans were subsequently prepared for these children on April 30, 2008 and

a meeting was held at that time to which [Father] was invited to participate. He

was notified by phone, because he had not responded to a letter I sent to him

on April 4, 2008 in order to re-establish contact with him and update contact

information for him. He did not attend the meeting. These plans were sent by

U.S. mail postage prepaid to [Father] at his address at . . . Murfreesboro, TN.

. . These plans also contained the above described “Criteria”. These plans were

not returned to the Department.

6. I spoke to [Father] prior to that April 2008 meeting and discussed with him

that the new plans were going to contain an additional goal of adoption, based

upon his failure to visit the children. I advised him at that time verbally that

failure to visit is a ground for termination of parental rights. [Father] was upset

by this change. However, he did not appear at the meeting and did not request

visitation with the children until August 15, 2008.

The testimony of the caseworker at trial provides few additional facts to supplement

the sparse efforts stated in the affidavit. Significantly, no reunification services are

mentioned, e.g. parenting classes, anger management classes, or mental health treatment,

only the minimal administrative duties such as mailing of the plan along with written

Notably, in Ms. Shelton’s testimony at trial, she did not state that she mailed Father a copy but 12

stated that “he would have been mailed a copy after the meeting.” We are troubled that nowhere is it

conclusively shown that Father was mailed a copy of the initial permanency plan. 

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admonitions regarding the requirement that Father visit his children are listed in the

permanency plan.

The Department has the burden to prove by clear and convincing evidence that it

exercised reasonable care and diligence to provide services reasonably necessary to meet the

Father’s needs in assisting him in fulfilling his obligations under the permanency plans. In

re R.L.F., 278 S.W.3d 305, 315-316 (Tenn. Ct. App. 2008) (citing In re Valentine, 79 S.W.3d

at 546; In re C.M.M., 2004 WL 438326 at *8; Tenn. Code Ann. § 36-1-113(c)). Under this

burden, the Department must present sufficient evidence to enable this court to conclude,

without serious or substantial doubt, that the Department’s efforts were reasonable under the

circumstances. Id. at 316 (citing In re Valentine, 79 S.W.3d at 546; In re C.D.B., 37 S.W.3d

925, 927 (Tenn. Ct. App. ); Walton v. Young, 950 S.W.2d 956, 960 (Tenn. 1997)).

As was the case in Tiffany B., the record, considered in its entirety, leaves the distinct

impression that the Department neither prepared an appropriate permanency plan nor did it

expend much effort to assist Father after it obtained custody of his children. Despite its

knowledge, actual or constructive, that Father’s ability to function was compromised due to

some sort of mental condition, the Department obviously expected Father to initiate the

appropriate remedial efforts on his own and to contact the case manager when he chose to

do so. This expectation was clearly unreasonable. As this court stated in Tiffany B.:

In circumstances that do not involve serious physical abuse or harm to the

child, the law does not permit the Department to be passive when it removes

children from their parents’ custody. The law requires the Department to bring

its skills, experience, and resources to bear in a reasonable way to bring about

the reunification of the family. The Department has not presented clear and

convincing evidence that it did so in this case. Therefore, we have no choice

other than to vacate the order terminating the parents parental rights and

remand the case for further proceedings.

In re Tiffany B., 228 S.W.3d at 160 (footnote omitted). The evidence in the record reveals

that the permanency plan was not crafted to address requirements needed to accomplish the

stated goal of reunification and the Department exerted no effort to assist Father to

accomplish that goal. Accordingly, the permanency plan, as well as the Department’s socalled efforts, fail the test.

We therefore reverse the trial court’s finding that Father was in substantial

noncompliance with the permanency plan.

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ABANDONMENT BY FAILURE TO VISIT

The trial court also found that Father abandoned the children by willfully failing to

visit. A parent abandons a child if for a period of four consecutive months immediately

preceding the filing of a petition to terminate the parental rights of the parent, it is established

that the parent willfully failed to visit, willfully failed to support, or willfully failed to make

reasonable payments toward the support of the child. Tenn. Code Ann. § 36-1-102(1)(A)(i).

The petition to terminate Father’s parental rights was filed on July 11, 2008. Father’s

last visitation prior to the filing of the termination petition occurred in August 2007. At the

time of the filing, Father had not visited the children for over ten months. Thus, this portion

of the statutory requirement was demonstrated by clear and convincing evidence. Father’s

argument regarding this ground is that due to his diagnosis of schizoaffective disorder, the

“willfulness” requirement of the statute was not met. This court discussed the definition and

requirements of willfulness at great length in In re Audrey S., 182 S.W.3d 838, 864 (Tenn.

Ct. App. 2005):

Failure to visit or support a child is “willful” when a person is aware of his or

her duty to visit or support, has the capacity to do so, makes no attempt to do

so, and has no justifiable excuse for not doing so. In re M.J.B., 140 S.W.3d at

654; see also Shorter v. Reeves, 72 Ark. App. 71, 32 S.W.3d 758, 760 (Ark.

Ct. App. 2000); In re B.S.R., 965 S.W.2d 444, 449 (Mo. Ct. App. 1998); In re

Estate of Teaschenko, 393 Pa. Super. 355, 574 A.2d 649, 652 (Pa. Super. Ct.

1990); In re Adoption of C.C.T., 640 P.2d 73, 76 (Wyo. 1982).

The willfulness of particular conduct depends upon the actor’s intent. Intent

is seldom capable of direct proof, and triers-of-fact lack the ability to peer into

a person’s mind to assess intentions or motivations. In re Adoption of S.M.F.,

No. M2004-00876-COA-R9-PT, 2004 WL 2804892, at *8 (Tenn. Ct. App.

Dec. 6, 2004) (No Tenn. R. App. P. 11 application filed). Accordingly,

triers-of-fact must infer intent from the circumstantial evidence, including a

person’s actions or conduct. See Johnson City v. Wolfe, 103 Tenn. 277, 282,

52 S.W. 991, 992 (1899); Absar v. Jones, 833 S.W.2d 86, 89-90 (Tenn. Ct.

App. 1992); State v. Washington, 658 S.W.2d 144, 146 (Tenn. Crim. App.

1983); see also In re K.L.C., 9 S.W.3d 768, 773 (Mo. Ct. App. 2000).

In re Audrey S., 182 S.W.3d at 864.

As the court noted, “failure to visit or support a child is ‘willful’ when a person is

aware of his or her duty to visit or support, has the capacity to do so, makes no attempt to do

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so, and has no justifiable excuse for not doing so.” In re Audrey S., 182 S.W.3d at 864 (citing

In re M.J.B., 140 S.W.3d at 654) (other citations omitted). The willfulness standard requires

that a parent both have the capacity to fulfill the visitation requirement and “no justifiable

excuse for not doing so.” Id.

In this case, the Department has the burden to prove by clear and convincing evidence

that it exercised reasonable care and diligence to provide services reasonably necessary to

meet the Father’s needs in assisting him in fulfilling his obligations under the permanency

plans. In re R.L.F., 278 S.W.3d at 315-316. Other than contacting the Department, the only

requirement of Father under the plan was to “visit” his children. The only service the

Department provided was supervision of the visits. It did not provide assistance to Father in

any other capacity.

The statutory scheme excludes the requirement of reasonable efforts under certain

circumstances only if the court has determined that “aggravated circumstances” exist. In re

B.L.C., No. M2007-01011-COA-R3-PT, 2007 WL 4322068, at *9 (Tenn. Ct. App. Dec. 6,

2007). The circumstances under which the Department is excused from exerting reasonable

efforts to aid reunification of the family was discussed at length in the case of In re B.L.C.:

Tennessee Code Annotated § 36-1-102(9) defines “aggravated circumstances”

to mean “abandonment, abandonment of an infant, aggravated assault,

aggravated kidnapping, especially aggravated kidnapping, aggravated child

abuse and neglect, aggravated sexual exploitation of a minor, especially

aggravated sexual exploitation of a minor, aggravated rape, rape, rape of a

child, incest, or severe child abuse, as defined at § 37-1-102.” (emphasis

added). As is seen from the italicized portion of the statute cited above, its

plain language relieves DCS of its responsibility to make reasonable efforts

only if a court of competent jurisdiction has made a determination that

aggravated circumstances exist, along with the other statutory requirements.

The statute does not allow DCS to take the approach of doing nothing on a

parent’s case, providing no assistance, in the hopes that a court will later

make a finding of abandonment that retroactively “forgives” DCS’s lack of

efforts, particularly when, as is the case here, DCS’s failure to make a

reasonable effort arguably was a significant factor in enabling DCS to argue

that [the parent] abandoned her children.

We believe the most reasonable and natural interpretation of the statute at issue

is that DCS is relieved of its responsibility to make reasonable efforts to assist

in the preservation and reunification of families that the State has decided to

separate at such time that a court of competent jurisdiction makes the required

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determination of aggravated circumstances, and not before. Prior to such a

determination, DCS must continue to make reasonable efforts. To hold

otherwise would be to create an unacceptable level of uncertainty among

DCS’s staff members as to whether, and when, they are required to exercise

reasonable efforts, because the answer to that question would not be clear until

a trial court, or possibly an appellate court, rules on the issue of abandonment.

A “wrong guess” on DCS’s part would create an unacceptably long delay in

an area of the law, termination of parental rights, where expediency is of

particular importance. We also make this determination mindful of a parent's

fundamental constitutional rights in this regard, and the profound, permanent

consequences of an order terminating a person’s parental rights.

Id. at *9 (emphasis added).

Here, the trial court did not make the determination that Father had “abandoned” the

children by failing to visit them until October 1, 2009, after the trial concluded. Accordingly,

the Department was not relieved of the duty to exert reasonable efforts to assist Father to

reunite with the children. For all practical purposes, the only effort exerted by the Department

was to supervise visitation, if and when Father called the Department.

The Department had the burden to prove by clear and convincing evidence that it

exercised reasonable care and diligence to provide services reasonably necessary to meet the

Father’s needs in assisting him in fulfilling his obligations under the permanency plans. In

re R.L.F., 278 S.W.3d at 315-316. Moreover, the Department had the burden to present

sufficient evidence to enable this court to conclude, without serious or substantial doubt, that

the Department’s efforts were reasonable under the circumstances. Id. We have determined

the Department failed to present evidence sufficient to enable this court to conclude, without

serious or substantial doubt, that the Department’s efforts were reasonable under the

circumstances of this case.

Accordingly, we reverse the trial court’s finding that Father abandoned the children

by willfully failing to visit.

BEST INTERESTS OF THE CHILDREN

As we have reversed the trial court’s determinations on all three grounds for

termination, there is no ground upon which Father’s parental rights may be terminated.

Accordingly, the issue of best interests is mooted. See In re D.L.B., 118 S.W.3d at 367.

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IN CONCLUSION

The judgment of the trial court is reversed, and this matter is remanded with costs

of appeal assessed against the Department of Children’s Services.

______________________________

FRANK G. CLEMENT, JR., JUDGE

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