No. E2006-00187-COA-R3-PT.Court of Appeals of Tennessee, at Knoxville.Submitted on Briefs October 5, 2006.
Filed March 1, 2007.
Appeal from the Juvenile Court for Sullivan County (Bristol); No.11009; Paul Wohlford, Judge.
Judgment of the Juvenile Court Affirmed.
Charles L. Moffatt IV, Bristol, Tennessee, for the appellant, S.C.
Paul G. Summers, Attorney General Reporter; Lauren S. Lamberth, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children’s Services.
SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and CHARLES D. SUSANO, JR., J., joined.
SHARON G. LEE, JUDGE.
The trial court terminated the parental rights of S.C. (“Father”) to two of his daughters upon finding by clear and convincing evidence that grounds for terminating his parental rights existed and that termination was in the best interest of the children. On appeal, Father argues that statutory grounds did not exist to support the trial court’s judgment terminating his parental rights. Upon our finding that there was clear and convincing evidence of Father’s substantial noncompliance with the permanency plans entered into in this case, we affirm the judgment of the trial court.
OPINION I. Background
Father and the children’s mother were never married; by agreement of the parents, two[1] of their children lived with Father. In December of 2001, Father and the children were threatened with eviction from their government housing apartment in Bristol, Tennessee because of unsanitary conditions in the home. The case was referred to Bristol police detective Debbie Richmond-McCauley who visited the residence on December 4, 2001, and made the following observations:
Page 2
I went in and . . . the smoke was so thick in the residence that it was hard for me to breathe. I could see smoke in the house. . . . There was a large metal ashtray on the end table and it was full and running over onto the coffee, onto the table. . . . There were two highchairs in the kitchen and the highchair trays and the highchairs were caked with dried, molded, dirty food that did not appear to be fresh food and it was caked on there I would say approximately a fourth of an inch. . . . The microwave was exceptionally dirty. The floor was dirty. . . . He showed me the bedroom and the baby bed in the bedroom was falling apart and it was held together by strings. . . . The plastic covering over the baby bed mattress was torn and only about a half of the covering was on the mattress, and there were pieces of foam torn loose from inside of the mattress and it was all about the baby bed, all about the floor. . . . There was a thick coat of dust on the TV, on the coffee table.
The detective advised Father that she would work with him to try to prevent his eviction and that she had obtained an extension of the eviction. She instructed him as to how to clean the apartment, and Father indicated that he would make an effort to do so. However, when she returned the next day, it did not appear that Father had made any efforts to clean the home. She noted that,
the highchairs had not been cleaned, the commode looked like it hadn’t been flushed in days. The children had on the same clothes that next day as they had on the day before. . . . [T]heir hair was all matted and tangled and had food all in it and was all dirty. . . . Their faces were dirty, their skin was dirty. The house, still the same ashtray, was still full and still running over onto the end table. There was a thick layer of smoke inside the residence. . . . [T]he bathtub was extremely dirty, black all around the bathtub. . . . My eyes were burning. I could hardly breathe because the smoke was so thick.”
She again explained to Father how to clean the apartment.
When the detective returned the next day, it appeared that Father had tried to clean the floor; however, the highchairs and commode were still dirty, and the children were dirtier than the previous day.
Approximately two weeks later, the detective inspected the residence and found that although the floor had been cleaned a little, the apartment was in the same condition as before, the children’s hair was matted, they were not clean, and they were wearing dirty clothing. The detective again explained to Father how the apartment should be cleaned. Father did not heed her advice because when she returned to the residence in early January of 2003, she noted that the highchairs had not been cleaned since her initial visit — “the same matted food that was on there on my first visit, was still there a month later.”
Page 3
On March 4, 2002, the detective once again received notice that Father and the children were about to be evicted for failure to remedy the unsanitary home environment. She obtained another extension of the eviction and contacted the Department of Children’s Services (“DCS”). A few days later, she and a DCS investigator visited the apartment and observed it to be in the same condition as on her previous visits. The children were unclean and infested with head lice. On this occasion, Father agreed to accept assistance from DCS. Several days after that, DCS referred the case to Family Support Services (“FSS”)[2] .
FSS assigned the case to its employee Starlett Little, who supervised the case, met regularly with Father, and contracted with two intensive service providers who provided in-home assistance to Father and the children for two months — April and August 2002 — to help Father learn parenting skills and address the housekeeping and lice issues. FSS supervisor Sherry Cummings testified as follows regarding the result of these efforts:
Those services, during the time that we were involved, it appeared that [Father] would make some efforts, a little improvement and then regress back. . . . The environment in the home, as far as the cleanliness and the care of the children, supervision of the children, was an ongoing issue, so there was little to no improvement long term with that family.
The detective was not involved with the family again until late August of 2002 when she received a referral that the young children had been found unattended on a busy highway after they had left the apartment and become lost. The children were returned to the residence by a police officer once he determined where they lived. The detective went to the home and spoke with Father about the incident, and he advised her that he was sleeping and did not realize the children had left the home. She testified that on this visit, Father also advised her that he did not like Starlett Little and did not intend to follow her recommendations.
In early October of 2002, Ms. Little went to the residence, but Father would not allow her to enter; she contacted the police and DCS. On October 17, 2002, DCS removed the children from the home and filed a petition for temporary custody. Among other things, the petition recounted Father’s failure to supervise the children which resulted in their being in the road; the infestation of the children with lice; the filthy condition of the home; and Father’s refusal to cooperate with DCS’s efforts to help him remedy the situation. After a hearing on October 23, 2002, the trial court entered an interim order which awarded DCS temporary custody of the children, but ordered that the children be placed in Father’s home
Page 4
on a temporary trial home pass for thirty days. However, on October 31, 2002, DCS filed a sworn petition stating that on October 30 and 31, 2002, the children were sent home from school because they were infested with lice. Thereafter the trial court entered an order finding by clear and convincing evidence that the children were dependent and neglected and awarding temporary custody to DCS. DCS was ordered to assist Father in obtaining Supplemental Security Income, refer him to vocational rehabilitation, and provide him with homemaker services in the home. Additionally, Father was ordered to enter and complete parenting classes.
On November 6, 2002, DCS met with Father and the mother of the children, and a separate permanency plan was formulated for each child with the stated goal of returning the children to the parents, and each plan included specific requirements to be met by the parents. The plans were approved by the trial court as reasonable and in the best interest of the children.
Six months later, on May 9, 2003, DCS filed a petition to terminate Father’s parental rights, alleging as grounds that he was guilty of abandonment; that he had made no reasonable efforts to provide the children with a suitable home despite DCS’s efforts to assist him; that it appeared unlikely that he would be able to provide a suitable home for the children at an early date; that the conditions which led to the children’s removal persisted and that other conditions persisted which would in all probability cause the children to be subjected to further abuse and neglect; that there was substantial noncompliance with the permanency plans; and that his mental condition prevented him from resuming care and responsibility of the children. The petition also sought termination of the parental rights of the children’s mother.
The case was tried on several days between September 14, 2004, and February 28, 2005. After hearing proof, the trial court terminated Father’s parental rights based on the grounds of 1) abandonment by willfully failing to make reasonable payments toward the children’s support for four consecutive months immediately preceding the filing of the petition to terminate; 2) abandonment by failing to make reasonable efforts to provide a suitable home and by demonstrating a lack of concern for the children to such a degree that it appeared unlikely that he would be able to provide a suitable home for the children at an early date; 3) persistence of the conditions that led to the removal and persistence of other conditions that in all probability would prevent the children’s return to his care; 4) substantial noncompliance with the permanency plans; and that termination was in the best interest of the children. The trial court also terminated the mother’s parental rights, and she did not appeal. Father appeals.
II. Issues
The sole issue we address is whether there was clear and convincing evidence to support the trial court’s finding that there was a statutory ground for termination of Father’s parental rights as a result of Father’s substantial noncompliance with requirements of the permanency plans.
Page 5
III. Standard of Review
A biological parent’s right to the care and custody of his or her child is among the oldest of the judicially recognized liberty interests protected by the due process clauses of the federal and state constitutions. Troxel v. Granville, 530 U.S. 57, 65 (2000); Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn. 1993); Ray v. Ray, 83 S.W.3d 726, 731 (Tenn.Ct.App. 2001). Although this right is fundamental and superior to claims of other persons and the government, it is not absolute. State v. C.H.K., 154 S.W.3d 586, 589 (Tenn.Ct.App. 2004). This right continues without interruption only as long as a parent has not relinquished it, abandoned it, or engaged in conduct requiring its limitation or termination. Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002).
Terminating parental rights has the legal effect of reducing the parent to the role of a complete stranger, “severing forever all legal rights and obligations of the parent.” T.C.A. § 36-1-113(l)(1). The United States Supreme Court has recognized the unique nature of proceedings to terminate parental rights, stating that “[f]ew consequences of judicial action are so grave as the severance of natural family ties.” M.L.B. v. S.L.J., 519 U.S. 102, 119, 117 S.Ct. 555, 565, 136 L.Ed.2d 473 (1996) (quoting Santosky v. Kramer, 455 U.S. 745, 787, 102 S.Ct. 1388, 1412, 71 L.Ed.2d 599 (1982) (Rehnquist, J., dissenting)). As a result, “[t]he interest of parents in their relationship with their children is sufficiently fundamental to come within the finite class of liberty interests protected by the Fourteenth Amendment.” Id. The constitutional protections of the parent-child relationship require certain safeguards before the relationship can be severed. O’Daniel v. Messier, 905 S.W.2d 182, 186 (Tenn.Ct.App. 1995). This most drastic interference with a parent’s rights requires “the opportunity for an individualized determination that a parent is either unfit or will cause substantial harm to his or her child before the fundamental right to the care and custody of the child can be taken away.” In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999).
Termination proceedings are governed by statute in Tennessee. Parties who have standing to seek the termination of a biological parent’s parental rights must first prove at least one of the statutory grounds for termination. T.C.A. § 36-1-113(c)(1). Secondly, they must prove that termination of the parent’s rights is in the child’s best interest. T.C.A. § 36-1-113(c)(2). Because the decision to terminate parental rights has profound consequences, courts must apply a higher standard of proof in deciding termination cases. Therefore, to justify termination of parental rights, the party seeking termination must prove by clear and convincing evidence the ground (or grounds) for termination and that termination is in the child’s best interest. T.C.A. § 36-1-113(c) In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). While T.C.A. ?36-1-113(g) lists multiple grounds upon which parental rights may be terminated, “the existence of any one of the statutory bases will support a termination of parental rights.” In re M.L.D., 182 S.W.3d 890, 894 (Tenn.Ct.App. 2005); In re C.T.S., 156 S.W.3d 18 (Tenn.Ct.App. 2004); In re C.W.W., 37 S.W.3d 467, 473 (Tenn.Ct.App. 2000).
The heightened burden of proof in parental termination cases minimizes the risk of erroneous decisions. In re C.W.W., 37 S.W.3d 467, 474
(Tenn.Ct.App. 2000); In re
Page 6
M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn.Ct.App. 1998). Evidence satisfying the clear and convincing evidence standard establishes that the truth of the facts asserted is highly probable, State v. Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn.Ct.App. M.S., Aug. 13, 2003), no appl. perm. filed, and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002); In re S.M., 149 S.W.3d 632, 639 (Tenn.Ct.App. 2004); In re J.J.C., 148 S.W.3d 919, 925 (Tenn.Ct.App. 2004). It produces in a fact-finder’s mind a firm belief or conviction regarding the truth of the facts sought to be established. In re A.D.A., 84 S.W.3d 592, 596
(Tenn.Ct.App. 2002); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn.Ct.App. 2001); In re C.W.W., 37 S.W.3d at 474.
In a non-jury case such as this one, we review the record de novo with a presumption of correctness as to the trial court’s determination of facts, and we must honor those findings unless the evidence preponderates to the contrary. Tenn. R. App. P. 13(d); Union Carbide v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). When a trial court has seen and heard witnesses, especially where issues of credibility and weight of oral testimony are involved, considerable deference must be accorded to either as to the trial court’s factual findings. Seals v. England/Corsair Upholstery Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999). The trial court’s specific findings of fact are first reviewed and are presumed to be correct unless the evidence preponderates against them. We then determine whether the facts, as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the grounds for terminating the biological parent’s parental rights. In re S.M., 149 S.W.3d 632, 640
(Tenn.Ct.App. 2004). The trial court’s conclusions of law are reviewed de novo and are accorded no presumption of correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn. 1993).
IV. Substantial Noncompliance With the Permanency Plan
The trial court’s decision to terminate Father’s parental rights was based in part upon the trial court’s finding that there was clear and convincing evidence that Father had failed to meet the requirements of the permanency plans in place in this case. As provided at T.C.A. ?36-1-113(g)(2), one of the grounds for termination of parental rights is that “there has been substantial noncompliance by the parent or guardian with the statement of responsibilities in a permanency plan. . . . ” I In re M.J.B., 140 S.W.3d 643 (Tenn.Ct.App. 2004), we noted the plan requirements must be reasonable and related to resolving the problems that led to removal and that the parent’s noncompliance cannot be minor or trivial, but must be substantial:
Terminating parental rights based on Tenn. Code Ann. ? 36-1-113(g)(2) requires more proof than that a parent has not complied with every jot and tittle of the permanency plan. To succeed under Tenn. Code. Ann. ? 36-1-113(g)(2), the Department must demonstrate first that the requirements of the permanency plan are reasonable and related to remedying the conditions that caused the child to be removed from the
Page 7
parent’s custody in the first place, In re Valentine, 79 S.W.3d at 547; In re L.J.C., 124 S.W.3d 609, 621 (Tenn.Ct.App. 2003), and second that the parent’s noncompliance is substantial in light of the degree of noncompliance and the importance of the particular requirement that has not been met. In re Valentine, 79 S.W.3d at 548-49, In re Z.J.S., 2003 WL 21266854, at *12. Trivial, minor, or technical deviations from a permanency plan’s requirements will not be deemed to amount to substantial noncompliance. In re Valentine, 79 S.W.3d at 548; Department of Children’s Servs. v. C.L., No. M2001-02729-COA-R3-JV,2003 WL 22037399, at *18 (Tenn.Ct.App. Aug. 29, 2003) (No Tenn. R. App. P. 11 applications filed).
In re M.J.B. at 656.
In the instant matter, a separate identical plan was entered into with respect to each of the two children, setting forth the following requirements in pertinent part:
. . . [Father] will maintain stable housing with adequate space. The home needs to be clean free of lice, w/ furnishings for the children. The home needs to be safe to allow the children to return. [Father] . . . will comply accept homemaker services.
. . . [Father] will complete a complete parenting assessment. All recommendations will be followed. [Father] will sign releases for DCS to see attendance, progress further treatment recommendations. . . . [Father] will need to make sure [he has] transportation to all appointments. **[Father] does not agree to take parenting classes, but is willing to take the parenting assessment.
. . . [Father] will complete a psychological examination. [He] will follow all recommendations. [He] will sign releases for DCS to see attendance, progress, further treatment recommendations. [He] will need to make sure [he has] transportation to all appointments.
DCS will make a referral to Voc. Rehab., so [Father] can receive resources for reading, or other educational resources so [he] can get a job. [Father] has applied for SSI, but the status is unknown at this time.
. . .
[Father] needs to refrain from illegal activity.
Page 8
Each of these requirements was directed toward insuring a stable and suitable environment for the children, and therefore we find that each of these requirements was reasonable and related to remedying the problems that led to the initial removal of the children from Father’s custody. Father presents no argument to the contrary.
Father complied with some of the plans’ requirements. He completed the parenting assessment; took parenting classes (after his initial refusal to do so); completed a psychological examination which indicated that he is of low average intelligence; and attended vocational rehabilitation through which he was able to obtain employment. However, Father’s failure to satisfy other of the plans’ requirements constituted substantial noncompliance with the plans, and termination of his parental rights upon that ground was warranted. First, Father failed to meet the plans’ requirement that the home be clean as evidenced by the testimony of DCS case manager Micah Reese-Farrow who developed the permanency plans and was responsible for Father’s case from October 22, 2002 until February 8, 2003. Ms. Reese-Farrow testified that, despite assistance from homemaker services and FSS, “nothing was ever remedied” — the house was “never cleaned” and “the floors always had trash on them” and “hadn’t been mopped” and the home “always smelled of smoke.” She also testified that when Father came to visit with the children “after several occasions they ended up with lice.” She stated that she felt that it was not appropriate to return the children to the home environment.
Additionally, despite attending parenting classes, Father continued to fail to exercise proper parenting skills. In this regard, Ms. Reese-Farrow testified that during visitation, “[t]he children would talk back to the parents and hit the parents, slap the parents, telling them no and the parents wouldn’t do anything about it.” DCS case manager Nikki Collins, who was assigned the case from February of 2003 until January of 2004, further testified as follows:
The children did not seem to mind the parents. They would reprimand them. The children would at times be out of control and in their visits running around McDonalds. The parents would tell them to sit down or to stop running, and they would not. They would sometimes strike out at the parents. They would, had inappropriate behaviors such as [C.M.C.] stood up on the table while she was in the playroom in front of [Father] and lifted her shirt up and just stood there and [Father] never reprimanded her not to do that, that that was inappropriate. She did it more than once. She did it on two or three occasions standing there and finally she did get down and he never did reprimand her and tell her that that was inappropriate.
Finally, the record shows that Father wholly failed to comply with the plans’ requirement that he refrain from all illegal activity. Father had a history of criminal behavior directed primarily against the children’s mother. Over the years, the mother was
Page 9
granted several orders of protection against Father, and in May of 2001, he pled guilty to charges that in March of that year he assaulted the mother by choking her and pushing her head into a door. Father’s criminal behavior toward the children’s mother continued after he entered into the permanency plans. He pled guilty to charges of theft, vandalism, and aggravated criminal trespass after stealing parts from the mother’s automobile and breaking into her home in September of 2003. On October 15, 2003, he again broke into her home while an order of protection was in place and threatened her with violence, for which he was charged with assault and aggravated criminal trespass. And on October 27, 2003, Father again entered the mother’s home without her permission and in violation of an order of protection. When the police arrived, Father ran out the door, ignoring the officers’ request to stop, and had to be physically stopped and restrained. As a result, Father was charged with evading and resisting arrest. Father pled guilty to the charges against him and was incarcerated in the Sullivan County jail from October of 2003 until May of 2004 and then placed on probation. Thereafter, in June of 2004, Father was charged with assaulting and battering the mother, violating an order of protection and carrying a concealed knife. Father was tried and convicted of each of these charges and was incarcerated in the Bristol, Virginia city jail from June of 2004 until November of 2004. Upon his release, Father was returned to the Sullivan County jail where he was incarcerated for having violated the conditions of his probation and remained there at the time of trial.
In summary, the record provides clear and convincing evidence that Father did not substantially comply with the permanency plans, and accordingly, a statutory ground existed warranting termination of his parental rights. Although the trial court determined that the proof supported a finding of several grounds for termination, we need not examine each of these grounds because, as previously stated, our confirmation that any one of these grounds is supported by clear and convincing evidence will allow us to affirm the trial court’s judgment.
V. Best Interest
Father does not argue that termination was not in the best interest of the children. However, we have reviewed the record, and we find that the trial court’s determination in that regard is well-supported by the evidence which established that the children are special needs children suffering from reactive attachment disorder, that the foster family where they reside has received special training to care for children with that disorder, that the children are thriving in their care, and that the foster parents wish to adopt the children.
VI. Conclusion
For the foregoing reasons, the judgment of the trial court is affirmed. Costs of appeal are adjudged against the appellant, S.C.
Page 1