In re M.J.B.
Lead Opinion
OPINION
delivered the opinion of the court,
This appeal involves the termination of a mother’s parental rights with regard to her two children. Approximately two years after removing the children from their mother’s custody, the Tennessee Department of Children’s Services filed a petition in the Davidson County Juvenile Court to terminate both the mother’s and the two fathers’ parental rights. The mother contested the petition, but ultimately, the children’s fathers did not. Following a bench trial, the court entered an order terminating both the fathers’ and the mother’s parental rights. The mother has appealed. We have determined that the record contains clear and convincing evidence warranting termination of the mother’s parental rights under
I.
K.D.M. was born in November 1978. She was raised by her mother after her father died when she was 2½ years old.
K.D.M. eventually dropped out of high school in the middle of the eleventh grade. She took up with M.W.S. and, on September 13, 1996, she gave birth to her first son, M.W.S., Jr., in Sumner County. M.W.S. physically abused K.D.M. and on one occasion threatened to kill M.W.S., Jr. if K.D.M. tried to leave him. M.W.S. eventually abandoned K.D.M. and their child, and K.D.M. then took up with B.J.B.
B.J.B. also physically abused K.D.M. On May 23, 1998, K.D.M. gave birth to her second son, M.J.B. B.J.B. was the boy’s father. For the next two years, B.J.B. was physically abusive toward K.D.M. and M.W.S., Jr. He also forced K.D.M. to have sex with him in front of both children. In early 2000, B.J.B. was arrested and incarcerated in the Hardin County Jail. K.D.M. was unemployed, and so she was reduced to selling her plasma twice a week to buy food for herself and her children. She was living in a squalid, rundown trailer at the rear of a junk yard. Both M.W.S., Jr. and M.J.B. were malnourished and essentially naked because K.D.M. could not provide them either food or clothes.
On June 29, 2000, K.D.M. brought her children to the Community Services Agency in Nashville seeking financial assistance. The children were hungry, practically naked, and in need of medical attention. K.D.M. requested that the children be placed in custody. On June 30, 2000, the Davidson County Juvenile Court entered an emergency protective custody order placing the children in the custody of the Department of Children’s Services. The children were placed together in two foster homes between June 30 and July 6, 2000, and then were placed in a foster home in Cheatham County on July 6, 2000.
The forced loss of her children was a serious psychological blow to K.D.M. On July 18, 2000, she was admitted to the intensive care unit at Tennessee Christian Medical Center after taking an overdose of anti-anxiety medication. During her six-day hospitalization, K.D.M. met R.H. who was also hospitalized in the psychiatric unit at Tennessee Christian Medical Center. R.H. had a history of substance abuse and chronic mental illness. Following her release, K.D.M. took up with R.H. and eventually married him on August 19, 2000.
The Department prepared revised permanency plans for M.W.S., Jr. and M.J.B. on August 29, 2000, reflecting K.D.M.’s recent marriage to R.H.
K.D.M. did not begin addressing her remedial obligations in August 2000 because her marriage to R.H. proved to be more abusive than her prior relationships with M.W.S. and B.J.B. Soon after then-wedding, R.H. began using crack cocaine heavily. He exhausted his disability income purchasing drugs. He sold off almost all of the couple’s possessions to purchase drugs. He even tried to convince K.D.M. to sell her body for sex to obtain more money to purchase drugs, but K.D.M. refused. K.D.M. also began using crack cocaine and marijuana with R.H.
On October 1, 2000, K.D.M. was again admitted to Tennessee Christian Medical Center for three days after taking more than a prescribed dose of Valium. She insisted that R.H. had overreacted and that she was simply trying to get some sleep rather than harming herself. On this occasion, she was diagnosed with a borderline personality disorder.
Later in the month, on October 24, 2000, the Department revised the parenting plans for M.W.S., Jr. and M.J.B. While K.D.M.’s obligations remained essentially the same, these plans moved their completion date back from January 2001 to either March or April 2001.
On December 18, 2000, the Department moved to amend its original dependent and neglect petition
K.D.M. finally left R.H. in February 2001. She lived briefly in a transient motel and then moved into a trailer on Dickerson Road with some friends. She began working as a day laborer in April 2001 where she met J.W.G., a former United
In mid-June 2001, K.D.M. moved into a trailer park on Murfreesboro Road after moving out of the trailer on Dickerson Road and living briefly in a motel. She also obtained employment at Kroger. J.W.G. also moved into the trailer. K.D.M. and J.W.G. became engaged, but they decided not to rush into marriage. During this interval, K.D.M. received a psychological evaluation at Centerstone Community Mental Health Centers, Inc. and was referred to counseling. She also began receiving homemaker services from Richland Village Home Services Unit. Even though she missed a significant number of appointments with her therapist and homemaker, the Department’s quarterly progress report dated November 8, 2001 reported that K.D.M. was “doing a good job right now.”
The stability in KD.M.’s life vanished in November 2001 when both she and J.W.G. lost their jobs. They were forced to move into a cheaper trailer on Dickerson Road, and one month later they moved in with J.W.G.’s mother. On January 16, 2002, the Department prepared yet another revised permanency plan for M.W.S., Jr. and M.J.B. Unlike the earlier plans, the sole goal of this plan was adoption. Despite the fact that the Department no longer anticipated returning the children to K.D.M., the revised plan required her to (1) “utilize the available resources and attend parenting classes to aid herself and the children,” (2) address her “Battered Women’s issues,” and (3) “improve her current situation regarding housing, finances, and employment.” Unlike earlier plans, this plan did not require K.D.M. to pay “court ordered child support.”
On February 25, 2002, after the children had been in the Department’s custody for almost twenty months, the juvenile court held a hearing on the Department’s allegations that M.W.S., Jr. and M.J.B. were dependent and neglected.
On April 4, 2002, the Department filed a poorly drafted petition to terminate the parental rights of K.D.M., M.W.S., and B.J.B. With regard to K.D.M., the factual allegations in the complaint asserted six separate grounds for terminating her parental rights.
The quarterly progress report prepared by ILD.M.’s case manager on June 28, 2002 concluded that KD.M.’s life was not “stable.” The case manager was concerned about her frequent moves, and her failure to complete her psychological evaluation and to continue with her medications. K.D.M. had also failed to attend parenting classes.
K.D.M. and J.W.G. moved to Centerville in July 2002 after J.W.G. found construction work with his brother. K.D.M. did not work during the five months they lived in Centerville, although she attended the counseling sessions made available to her in Centerville, as well as a program called ‘Women Are Safe.” She also took her prescribed medications more regularly. Following a hearing on August 28, 2002, the trial court filed an order on September 4, 2002 terminating the parental rights of M.W.S. and B.J.B.
J.W.G. lost his construction job in Cen-terville in November 2002 after he injured his hand. K.D.M. and J.W.G. returned to Nashville and moved in with J.W.G.’s
The juvenile court conducted a hearing on February 10 and 13, 2003 regarding the Department’s petition to terminate KD.M.’s parental rights. The children’s therapists and case managers explained that both of them had severe problems. M.W.S., Jr. had been diagnosed with post-traumatic stress disorder, reactive attachment disorder, ADHD, and disruptive behavior disorder. M.J.B. also had disruptive behavior disorder and ADHD, as well as a language impairment. Both children were developmentally delayed and required medication in order to function. The witnesses also testified that both children would need continued therapy and medication, a stable, structured home environment, and special schools. They also testified that any adults with whom they lived would need special training.
KD.M. conceded during her testimony that she had completed approximately one-half of her obligations under the permanency plans. She explained that her domestic problems during her marriage to R.H. had sidetracked her and that her efforts to find stable housing and to hold a job had interfered with her ability to complete the required therapy and counseling. When asked to explain why she had been unable to complete her tasks in two and one-half years, KD.M. stated “|j]ust things have come up.”
Even though K.D.M. had visited her children regularly after they had been removed from her custody, she testified during the trial that she would not be ready for them to come to live with her for another four to six months, or at least until she completes her obligations under the permanency plan. These obligations include completing her parenting classes, finding steady employment, and arranging for reliable transportation. She also testified that she desired specialized training to enable her to deal more effectively with the special needs of her children.
On March 14, 2003, the court entered an order terminating KD.M.’s parental rights and placing M.W.S., Jr. and M.J.B. in the Department’s custody pending their adoption. The court identified four grounds for its decision: (1) that K.D.M. had abandoned her children by willfully failing to support them,
II.
The Appellate Record in Termination Cases
Like many other appeals from decisions to terminate parental rights under
A termination of parental rights proceeding is not simply a continuation of a dependent-neglect proceeding. It is a new and separate proceeding involving different goals and remedies, different evi-dentiary standards, and different avenues for appeal. The primary purpose of a dependent-neglect proceeding is to provide for the care and protection of children whose parents are unable or unwilling to care for them. The sole purpose of the termination proceeding under
Dependent-neglect proceedings are intended to be procedurally “informal,”
Final orders in dependent-neglect cases are immediately appealable; however, the appellate remedies available in these cases differ from appellate remedies in other civil cases. In dependent-neglect cases, the parties dissatisfied with a juvenile court’s final decision must appeal to the circuit court. Rather than relying on the juvenile court’s record, the circuit court must try the case de novo by hearing all the witnesses again and by rendering an independent decision based on the evidence received in the circuit court proceeding.
In appeals from a juvenile court’s final dependent-neglect order,
These generally applicable limitations in the content of the record on appeal are reflected and amplified in the Tennessee Supreme Court’s proposed amendments to the Tennessee Rules of Appellate Procedure designed to expedite appeals in termination of parental rights cases. See In re Amendments to the Tennessee Rules of Appellate Procedure (Tenn. Jan. 15, 2004).
The appellate record in this case contains all the pleadings filed in the juvenile court regarding the earlier dependent-ne-gleet proceeding as well as scores of unauthenticated documents placed in the juvenile court’s file at some time during the dependent-neglect proceeding. While a few of these documents were also formally introduced as exhibits during the trial of the termination petition, most of them were not. In fact, at least two of them were excluded by the juvenile court.
When a record on appeal contains extraneous materials, it becomes difficult to ascertain whether and to what extent the trial court relied on these materials. It also creates a risk that these materials might influence the appellate court’s consideration of the case. Separating the evi-dentiary wheat from the chaff is extremely difficult and time consuming, and impedes the court’s efforts to expedite these appeals in accordance with
III.
The Standards For Reviewing Termination Orders
A biological parent’s
Termination proceedings in Tennessee are governed by statute. Parties who have standing to seek the termination of a biological parent’s parental rights must prove two things. First, they must prove the existence of at least one of the statutory grounds for termination.
No civil action carries with it graver consequences than a petition to sever family ties irretrievably and forever.
Because of the gravity of their consequences, proceedings to terminate parental rights require individualized decision making. In re Swanson,
Because of the heightened burden of proof required by
IV.
Abandonment FOR Willful FailuRE to Support
The first of four substantive grounds relied upon by the juvenile court to terminate K.D.M.’s parental rights is
All parents have a duty to support their children.
K.D.M. was apparently aware that she had an obligation to support her children as best she could prior to their removal in June 2000. Even though she had not applied for government benefits, she was attempting to meet her obligation by selling plasma twice a week to raise money to support herself and her children. However, the record contains no indication that K.D.M. was aware that she was still obligated to support her children financially after they were placed in the Department’s custody. The permanency plans involving her children required her to support her children financially only if ordered by the court. There is no indication in the record that KD.M. was ever ordered by a court to pay child support.
The record is likewise lacking clear and convincing evidence that K.D.M. was ever able to support her children financially while they were in the Department’s custody. She has no marketable skills and has not been employed since November 2001. Her employment record reflects that she has only been able to hold a series of unskilled, low paying jobs for brief periods of time. There is no proof regarding her exact earnings from these jobs, but the evidence indicates that they did not provide her with sufficient income to support herself, let alone her children, because she continued to rely on others for financial support.
Finally, the record contains insufficient evidence to warrant a determination that KD.M. voluntarily and consciously decided not to support her children financially even though she was able to do so. While it is true that in 2000 she failed to seek government benefits that would have benefitted her children, she was not eligible for such benefits during the four months immediately preceding the filing of the Department’s petition because by that time, the children had been in the Department’s custody for over eighteen months. The record simply lacks any evidence that K.D.M. had any disposable resources that she could have used to support her children.
The Department had the burden of producing clear and convincing evidence that KD.M. willfully failed to support her children financially. Simply proving that she did not support her children is not sufficient to carry this burden. The Department must also prove that KD.M. was able to provide support and voluntarily chose not to do so. Because the Department failed to present this sort of evidence, the juvenile court’s conclusion that KD.M. willfully failed to support her children cannot stand. Accordingly, we reverse the portion of the March 14, 2003 order terminating KD.M.’s parental rights based on
V.
Commission of Severe Child Abuse
The juvenile court also based the termination of KD.M.’s parental rights on
The Department’s petition to terminate K.D.M.’s parental rights recites that “the parents have been found to have committed severe child abuse ... under prior order of the Juvenile Court....” However the prayer for relief in the same petition does not request termination based on TenmCode Ann.
Second, the shortcomings in the juvenile court’s May 1, 2002 order prevent the Department from using it as a basis to terminate K.D.M.’s parental rights under
VI.
Substantial Noncompliance with the Requirements of the Permanency Plans
Even though K.D.M. concedes that she failed to complete approximately one-half of her obligations under the children’s parenting plans, she insists that the evidence does not support the juvenile court’s termination of her parental rights based on
Terminating parental rights based on
The Department was required to remove the children from KD.M.’s custody because her psychological problems prevented her from providing suitable housing and financial support for her children. The requirements placed on K.D.M. in the various permanency plans have consistently been directed toward remedying these conditions. Requiring KD.M. to find suitable housing and steady employment, to take her prescribed medications, to attend all her therapy and counseling sessions, and to attend and complete parenting classes are, without question, reasonable and appropriate.
During the time that her children have been in the Department’s custody, K.D.M. has been unable to keep a steady job or to obtain stable housing that would be safe and appropriate for small children. She had seven to ten different jobs between July 2000 and November 2001 and has been unemployed since November 2001. Only one of these jobs lasted for more than five months; most of them were of extremely short duration. Similarly, K.D.M. lived in fourteen different places between July 2000 and January 2003. The longest she lived at any one location was approximately five months. This evidence demonstrates clearly and convincingly that K.D.M. has been unable to comply substantially with the reasonable obligation that she obtain stable housing and employment.
K.D.M. has failed to take her medications consistently without good reason. She has likewise failed to attend all her individual therapy and group counseling sessions and has failed to begin or complete parenting classes. The fact that other similarly situated patients also miss appointments does not excuse the fact that K.D.M. has failed to comply substantially with these requirements.
Based on our independent review of the record, we have determined that the requirements in the permanency plans involving K.D.M.’s children were reasonable and were related to remedying the conditions that required the removal of the children from KD.M.’s custody. We have also determined that the record contains clear and convincing evidence that the Department has made reasonable efforts to assist K.D.M. and that K.D.M. has been unable to comply substantially with her obligations under these plans. Accordingly, we affirm the juvenile court’s conclusion that the Department has carried its burden of proof for terminating K.D.M.’s parental rights under
VII.
Failure to Remedy Persistent Conditions
K.D.M. also asserts that the trial court erred by terminating her parental rights under
The Department took custody of K.D.M.’s children in June 2000 because
In addition, K.D.M. candidly conceded that she would be unable to support herself and her children without the financial assistance of her current boyfriend. She has been unemployed since November 2001, and during her testimony at trial, she was unable to produce any concrete evidence of prospects for employment in the near future. Thus, K.D.M. has not been able to demonstrate that she will be able at any time in the foreseeable future to provide not only the financial support that the children need but also the structured living environment that their current condition requires. Accordingly, we affirm the juvenile court’s conclusion that the Department has carried its burden of proof for terminating KD.M.’s parental rights under TenmCode Ann.
VIII.
The Best Interests of M.J.B. and M.W.S., Jr.
The record contains clear and convincing evidence that both M.J.B. and M.W.S., Jr. have severe psychological and developmental difficulties. Their condition will require continued medication, counseling and therapy, a structured home environment, and special schooling. Their adult custodians, whether adoptive or foster parents, will be required to have special training in order to be able to manage these children.
Every one of the children’s therapists and case managers agreed that their interests would be best served by terminating K.D.M.’s parental rights so that the Department could move aggressively to find a suitable placement for these children. According to this record, taking these steps quickly is necessary because the children’s current foster parents have adopted three other children and will therefore be unable to continue to have custody of M.J.B. and M.W.S., Jr. In light of K.D.M.’s current and reasonably anticipated future inability to parent these children and the pressing need for their permanent placement, we concur with the juvenile court’s conclusion that the Department has carried its burden of proof under TenmCode Ann. § 36-1 — 113(c)(2) to show that the interests of both M.J.B. and M.W.S., Jr. will be served best if K.D.M.’s parental rights are terminated.
IX.
We affirm the portions of the March 14, 2008 order terminating K.D.M.’s parental rights based on TenmCode Ann.
Notes
.The Department placed the children in the custody of Residential Services, Inc. on July 19, 2000. The record contains no evidence regarding how this choice was made or the nature of Residential Services, Inc.’s operation or the services it provides.
. One of the many deficiencies in this record is that it does not contain the initial permanency plans for either child.
. Meeting this goal was, as a practical matter, impossible because only five months re
. The record contains no indication that K.D.M. was ever ordered to pay child support.
. K.D.M. objected to the dual goals of the revised plan. In an order entered on October 30, 2000, the juvenile court determined that the goal of reunification was not inconsistent with the goal of placing the children up for adoption.
. The Department's original dependent and neglect petition is not in the record.
. The Department did not assert in this motion that M.J.B. had been severely abused.
. The Department asserted that "the mother of these children has made statements that the children were exposed to sexual activity when she and ... [B.J.B.] had sexual intercourse or were otherwise engaged in sexual activity in front of them. It is unclear whether the mother ... was forced to engage in sexual activity ... in front of the children or whether she was an active participant and a perpetrator of sexual abuse on these children as well."
. J.W.G. testified that this disorder manifests itself as extreme nervousness when he is in a crowd.
. According to this report, adoption was no longer one of the Department’s goals for either M.W.S., Jr. or M.J.B. The Department’s goals were now "return to parent” or "permanent foster care.”
. The plan continued to require M.W.S. to pay court ordered child support.
. At the outset of this hearing, K.D.M.'s lawyer requested permission to withdraw from the case. The court denied the motion solely because it would delay the hearing. The court permitted the lawyer to withdraw following the hearing.
.The juvenile court never explicitly found that K.D.M. had abused her children. It's order states:
[K.D.M.] ... did not deny that she and ... [B.J.B.] had sexually [sic] relations in front of the children, and on more than one occasion. [K.D.M.] ... testified that if she did not acquiesce, then he would beat her. The Court does not find [K.D.M.’s] ... explanation credible. [She] ... could have called the police or let others know of [B.J.B.’s] ... actions. Yet, there was no testimony that [K.D.M.] ... reported anything to the police.
. The juvenile court entered an order embodying its decision on May 1, 2002. K.D.M. did not pursue a de novo appeal to the circuit court pursuant to
. In addition to the numerous deficiencies that we will later note, the petition erroneously states that the Department’s initial petition for custody and emergency removal was filed on June 29, 2000, and that the children’s birth certificates were attached as exhibits to the petition. In fact, the Department’s petition was filed on June 30, 2000, and the record does not contain copies of the birth certificates.
. The Department alleged that the children's fathers had willfully failed to support them for four consecutive months immediately preceding the filing of the petition but did not make this allegation against K.D.M.
. The Department erroneously referenced
. M.W.S. and B.J.B. have not appealed from the termination of their parental rights.
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. Tenn. R. Juv. P. 28(c).
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. 9 West's Tennessee Decisions Ct.R. 6 (Mar. 2, 2004).
. The juvenile court excluded the two CASA reports following a hearsay objection by K.D.M.’s lawyer. The Department has not taken issue with the juvenile court's ruling.
. This right exists notwithstanding the marital status of the child’s biological parents where a biological parent has established or is attempting to establish a relationship with the child. Lehr v. Robertson,
.
. The statutory grounds for terminating parental rights are found in
.The factors to be considered in a "best interests” analysis are found in
. These decisions draw a distinction between specific facts and the combined weight of these facts.
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Concurrence Opinion
concurring.
I concur in the judgment that clear and convincing evidence establishes abundant grounds for the termination of the parental rights of the mother in this case and further establishes that it is in the best interests of the children to terminate her parental rights.
I continue, however, to adhere to my view that a preponderance of the evidence standard on the one hand and a clear and convincing evidence standard on the other
In any event, the evidence in this case is overwhelming and the clear and convincing evidence standard set forth in Estate of Acuff v. O’Linger is clearly met. I concur in the judgment.