Opinion
No. M2002-00076-COA-R3-JV.
Filed March 13, 2003.
Appeal from the Juvenile Court for Robertson County; No. D-18308; Max Fagan, Judge.
Vacated and Remanded.
Mark Walker, Goodlettsville, Tennessee, for the appellant, Florence Hoffmeyer.
Bryce C. Ruth, Jr., White House, Tennessee, for the appellant, Larry Hoffmeyer.
Paul G. Summers, Attorney General Reporter and Elizabeth C. Driver, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children's Services; In the Matter of: A.L.H., child under the age of 18 years.
William B. Cain, J., delivered the opinion of the court, in which Ben H. Cantrell, P.J., M.S., joined. Patricia J. Cottrell, J., concurring.
OPINION
The natural parents of a seventeen year old girl appeal the action of the Juvenile Court of Robertson County terminating their parental rights based upon a finding of severe child abuse under Tennessee Code Annotated section 36-1-113(g)(4). Because the appellate record is incomplete, we vacate the judgment and remand the case to the trial court for further proceedings.
Larry and Florence Hoffmeyer, husband and wife, are parents of two children, Susan Hoffmeyer, now an adult, and A.H., born August 7, 1985.
Following a hearing on November 5 and 10, 1999, upon a petition of the Department of Children's Services for temporary custody of Susan Hoffmeyer and A.H., the Juvenile Court of Robertson County, on November 30, 1999, entered an Order providing:
This cause came to be heard on the 5th and 10th days of November, 1999 before the Honorable Judge Max Fagan upon the petition of the Department of Children Services for temporary custody of SUSAN HOFFMEYER and [A.H.] (hereinafter referred to as `minor children'). Upon testimony of the parties, Susan Hoffmeyer, Chris Bible, representative of the Department Children Services, Larry Hoffmeyer, and Florence Hoffmeyer; testimony of witness, Laura Brogdon; statements of counsel, James Allen, Regina Farmer, Joe R. Johnson, Randall Haynes; and review of the guardian ad litem report of John Holt; the Court makes the following findings of facts:
1. That the investigation conducted by the Department of Children Services in this matter over the past ten months has been woefully inadequate. Upon testimony the court finds that although the Hoffmeyer family has moved from state to state (including the states of Texas, Utah, Idaho, New Mexico, Arizona, Colorado, Nevada and Tennessee), the department has failed to make inquiry regarding these various residences to determine whether any prior history has been reported in these states. Furthermore, there have been at least two prior reported incidents of sexual abuse of the minor children by friends of Mr. and Mrs. Hoffmeyer, but there has been no reported inquiry as to these alleged incidents. There has been testimony that the younger child, [A.H.], has sustained a broken leg as a result of her mother[']s paddling her at age five, and a broken arm at age eight as a result of her mother's throwing her into a wall. The Department reports no investigation of these incidents, and there is no medical proof as to whether these fractures in fact exist. There has been testimony that Mrs. Hoffmeyer has consulted with Ms. Alice Thomas of the Robertson County Board of Education regarding `home schooling' of the children, however there is no information provided to indicate whether the Department investigated the status of educational resources, or any coordination (or lack thereof) of `home schooling' with the Board of Education. The testimony of Mr. Bible indicates that the State's investigation in this cause consisted of a one hour interview of each of the children and a visit and interview with Mr. and Mrs. Hoffmeyer;
2. By virtue of the aforementioned nomadic lifestyle, and the fact that the family has lived in a travel trailer/camper for a considerable amount of time, the Court finds that the Hoffmeyers have failed to provide a stable environment and residence for the minor children;
3. Upon testimony presented in this cause, the Court finds that the Hoffmeyer parents have failed to provide for the educational needs of the minor children, in that they have allegedly `home schooled' the children. The children are reported to be substantially educationally challenged in that the 17 year old child is only in the 9th grade, and the 14 year old child is unable to read due to educational deprivation;
4. That the Hoffmeyer parents have failed to protect the minor child, [A.H.], from sexual abuse in that while Mrs. Hoffmeyer was living with and having an affair with a Mr. George Edward Kiley in Utah, Mr. Kiley allegedly molested the minor child. Furthermore, upon being told of the incident and upon testimony by Mrs. Hoffmeyer that she believed the child's account of the molestation to be truthful, Mrs. Hoffmeyer neglected to report the incident to authorities, has failed to seek medical or psychological intervention for the minor child, and indeed left the state of Utah within days of the alleged incident; and
5. That the father, Mr. Larry Hoffmeyer, has sexually battered the minor child, SUSAN HOFFMEYER.
Based on the aforementioned findings of fact, the Court finds specifically as follows:
1. That the father, Mr. Larry Hoffmeyer, having sexually battered the minor child, SUSAN HOFFMEYER, is found to have violated Tenn. Code Ann. § 39-13-527 as it relates to sexual battery by an authority figure;
2. That there has been severe child abuse as defined by Tenn. Code Ann. § 37-1-102(b)(21)(A)(B)(C); and
3. That the minor children, SUSAN HOFFMEYER and [A.H.], are dependent and neglected as defined by Tenn. Code Ann. § 37-1-102(b)(12)(F).
IT IS HEREBY ORDERED, ADJUDGED, and DECREED:
1. That the minor children shall not be returned to the legal custody of the parents, LARRY and FLORENCE HOFFMEYER, unless and until such time the Court determines by clear and convincing evidence that the safety, protection, and well being of the minor children can be ensured;
2. That an updated psychological evaluation be conducted with recommendations as to both minor children provided to the Court;
3. That the Department of Children Services conduct a thorough investigation in this cause, including but not limited to:
a) A review of the history of the prior residences of the Hoffmeyer family, including but not limited to any prior referrals to state child protective agencies;
b) The status of any criminal proceedings involving George Edward Kiley;
c) The utilization of any state services;
d) The academic records and reports of both minor children, including any information which may be available from the Robertson County Board of Education regarding coordination of home schooling;
e) The past medical history and records of both minor children; and
f) The allegation that Mr. Hoffmeyer participated in the sexual abuse of Susan Hoffmeyer by permitting his friend, a Mr. Robert Kiest, to molest the child while the family was in Red Oak, Texas.
4. That an updated psychological evaluation of the parents, LARRY HOFFMEYER and FLORENCE HOFFMEYER, be conducted by Dr. Anne Durrant and that she be provided with any and all information necessary to provide a comprehensive and complete evaluation. The results of the aforesaid evaluation shall be provided to the court, with recommendations, if any, regarding the possibility and advisability of reunification of either of the minor children with their parents. The cost for such evaluation shall be paid by the State if resources are not available to the Hoffmeyers elsewhere;
5. That said requested reports of the minor children and parents be provided to the Court with copies provided to all parties by December 16, 1999 at 9:00 a.m. whereupon the Court will consider the reports and notify the parties of a review date; and
6. That no visitation arrangements be made during the interim pending the Court's review.
Entered this 30th day of November , 1999.
Under the same docket number, the State of Tennessee Department of Children Services, on September 7, 2000, filed a Petition to Terminate the Parental Rights of Larry and Florence Hoffmeyer as to A.H., the elder child, Susan Hoffmeyer, having attained her majority on August 2, 2000.
Following a hearing on October 10, 2001, the Juvenile Court of Robertson County terminated the parental rights of Larry Hoffmeyer and Florence Hoffmeyer as to A.H. as reflected in an Order entered December 13, 2001, providing:
This cause came on to be heard on October 10, 2001 before the Honorable Max Fagan, Judge of the Juvenile Court of Robertson County, Tennessee at Springfield, upon the sworn Petition of the State of Tennessee, Department of Children's Services; against the parents, Florence Hoffmeyer and Larry Hoffmeyer. Present for the hearing were: Florence Hoffmeyer, duly represented by Mark Walker; Larry Hoffmeyer, duly represented by Bryce Ruth; Laurinda Hogan, DCS case manager; John Holt, GAL; Regan Cothron, Attorney for the Department of Children's Services; Louellen Benton, Your Villages' case manager; Chennaye Greeer, foster parent; and Sandra Hendricks, prior foster parent.
Upon evidence presented and the entire record, from all of which the Court finds upon clear and convincing evidence that it is in the best interest of the child and the public as follows;
That substantially little has been done to help this family, i.e.: contact has been almost non-existent, the goal of reunification has never been ratified and we don't actually have a plan of care ratified in this case, there has been no home visit, and the state has not facilitated matching this family with resources to try to get them to attempt to ratify the problems that brought the children before the court.
The court further finds that [A.H.]'s progress is remarkable. [A.] came into custody with a variety of issues that needed to be addressed, including, having sores all over head, thinning hair which appeared to be pulled out, behavioral issues, issues as far as hygiene is concerned, her educational situation was difficult to believe in that she couldn't add and was working on a 1st grade educational level. Today, [A.] is a different person, she is more grown-up, cleaner, more outgoing, and demonstrates better social skills. That the foster parent is to be commended for [A.]'s progress.
That the court further finds that the parents no longer live in a trailer, that they have obtained housing for which they are to be commended. That there are still conditions that persist that the Court does not know if they could have been effectively remedied. That the parents were told to do several things and left to fend for themselves in accessing certain services and assistance. It should be obvious that if this family was able to address those needs on their own, they probably would not have been brought to this court. That it is the function that the Department of Children's Services is expected to help facilitate so that the persons are provided every opportunity to succeed and then if they fail it is a much clearer decision for the judge than if they are left to try to do the best that they can.
That the Petition filed by the State of Tennessee, Department of Children's Services is well-taken and should be sustained and relief granted thereunder for the causes stated pursuant to T.C.A. § 36-1-113(g)(4) that the defendants, Florence Hoffmeyer and Larry Hoffmeyer have been found to have committed severe child abuse as defined by T.C.A. § 37-1-102, under an order of the Juvenile Court of Robertson County entered November 30, 1999 against said child and her sibling, Susan Hoffmeyer, notwithstanding the fact that there is no showing that there was any effort to help the family that has been unsuccessful.
That pursuant to T.C.A. § 36-1-113(g)(3)(A) et seq. in that the child, [A.H.] has been removed from the custody of the Defendants, Florence Hoffmeyer and Larry Hoffmeyer, for more than six (6) months, and that the conditions which led to the child's removal or other conditions which in all reasonable probability cause said child to be subjected to further neglect and which, therefore, prevent said child's safe return to the care of the Defendants, still persist, including: the lack of stable employment, the lack of counseling, the lack of evaluations to deal with the past history, and the issues of denial; however, the parents have addressed the housing issue; that there is little likelihood that these conditions will be remedied in the near future; and, that said child is of such an that the continuation of the legal parent and child relationship greatly diminishes said child's chances of early integration into a stable and permanent home.
That the ground for termination pursuant to T.C.A. 36-1-113(g)(2) in that the defendants have failed to comply with the Statements of Responsibilities in the plan of care entered into by said Defendants with the State of Tennessee, Department of Children's Services has not been sustained due to the fact that there was not a ratified plan of care and the Court does not hold the parents liable to abide by that plan.
That pursuant to T.C.A. § 36-1-113(g)(3) the continuation of the parent child relationship greatly diminishes the child's chances of early integration into a safe, stable and permanent home due to the sparse visitation by the parents, the difficulties in the interaction between the child and the parents, that the parents, while not assisted by the state, have not taken it upon themselves to be proactive in looking into the child's schooling and welfare.
That due to the child's age and the amount of time that she has been removed from the home that by clear and convincing evidence it is in the best interest of said child, [A.L.H.] and the public that all of the parental rights of FLORENCE HOFFMEYER AND LARRY HOFFMEYER to said child, be forever terminated and that guardianship of said child be awarded to the State of Tennessee, Department of Children's Services as guardian with the right to place said child for adoption and to consent to such adoption in loco parentis . That this decree shall have the effect of terminating all rights and obligations of said Defendants to said child and or said child to said Defendants arising from the parental relationship, and said Defendant is not hereinafter entitled to notice of any proceedings for the adoption of said child by another nor has he or she any right to object to such adoption or otherwise participate in such proceedings.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED:
1. That pursuant to T.C.A. § 36-1-113(g)(3)(A) et. seq. in that the child, [A.H.] has been removed from the custody of the Defendants, Florence Hoffmeyer and Larry Hoffmeyer, for more than six (6) months, and that the conditions which led to the child's removal or other conditions which in all reasonable probability cause said child to be subjected to further neglect and which, therefore, prevent said child's safe return to the care of the Defendants, still persist, including: the lack of stable employment, the lack of counseling, the lack of evaluations to deal with the past history, and the issues of denial; however, the parents have addressed the housing issue; that there is little likelihood that these conditions will be remedied in the near future; and, that said child is of such an that the continuation of the legal parent and child relationship greatly diminishes said child's chances of early integration into a stable and permanent home.
2. That pursuant to T.C.A. § 36-1-113(g)(4) that the defendants, Florence Hoffmeyer and Larry Hoffmeyer have been found to have committed severe child abuse as defined by T.C.A. § 37-1-102, under an order of the Juvenile Court of Robertson County entered November 30, 1999 against said child and her sibling, Susan Hoffmeyer notwithstanding the fact that there is no showing that there was any effort to help the family that has been unsuccessful.
3. That due to the child's age and the amount of time that she has been removed from the home that by clear and convincing evidence it is in the best interest of said child, [A.L.H.] and the public that all of the parental rights of FLORENCE HOFFMEYER AND LARRY HOFFMEYER to said child, be forever terminated and that guardianship of said child be awarded to the State of Tennessee, Department of Children's Services as guardian with the right to place said child for adoption and to consent to such adoption in loco parentis . That this decree shall have the effect of terminating all rights and obligations of said Defendants to said child and or said child to said Defendants arising from the parental relationship, and said Defendant is not hereinafter entitled to notice of any proceedings for the adoption of said child by another nor has he or she any right to object to such adoption or otherwise participate in such proceedings.
Enter this the 13th day of December , 2001.
From the Order of December 13, 2001, Larry and Florence Hoffmeyer timely appeal.
Applicable in this case is the observation of the Supreme Court of Tennessee: "We are presented with a classic case for the application of T.R.A.P. 13(b) that expressly grants the appellate courts authority to consider issues not brought up for review by any party. We invoke that rule to prevent needless litigation and to prevent prejudice to the judicial process, two of the reasons expressly mentioned in the Rule." Panzer v. King, 743 S.W.2d 612, 616 (Tenn. 1988).
The trial court treated its Order of November 30, 1999, following the hearing on November 5th and 10th, 1999, to have res judicata effect as to a finding of severe child abuse as defined by Tennessee Code Annotated section 37-1-102(b)(21)(A)(B)(C). The trial court erred in such determination.
The transcript of the October 10, 2001 hearing, resulting in the Final Decree of Guardianship entered December 13, 2001, discloses:
MS. COTHRON: Your Honor, first, just as a preliminary matter, I'd ask the Court to take judicial notice as res judicata, the Court order regarding the children, Susan and [A.], of dependent neglect, which was entered in November of 1999.
MR. WALKER: I'm objecting, Judge, and this — just some temporary issues that we need to talk about. The State filed an amended petition August 6th of this year, and nowhere in that petition do they incorporate the prior petition.
The allegations in the amended petition are two references to the statute, neither of which refer to the severe abuse or child abuse, those kinds of things. That's not been pled, and we object to the prior order.
I think that under the Rules about how you amend pleadings, they didn't incorporate that prior petition.
MS. COTHRON: Judge, I guess I'm deficient on the Rules, but I have always amended pleadings to just add whatever — I guess, added to the amendment, or added to the original petition.
THE COURT: I think that even though the pleadings may be deficient in the form in the reference to the prior pleading, I will allow you to amend the petition based on the fact that the record is clear that there has been a prior finding. So I will allow you to orally amend your pleadings.
MR. RUTH: Judge, before we go any further, what is she amending it to? What are we expected to put proof on to defend, if necessary?
THE COURT: That is certainly fair. I think that, if I'm understanding correctly, her motion is to incorporate the prior petitions, discussions of the finding of the Court of severe abuse, which was held in 1999, upon the issue of dependent neglect, at which time we had a full hearing and heard all of the evidence and made a finding of dependency neglect and severe abuse at the same time. Is that correct?
MS. COTHRON: Yes. I think the first petition alleged the severe abuse, and then the amended petition I filed alleged the persistence of conditions and the failure to comply with the permanency plan.
MR. RUTH: So before I objected to that, she's asking you to take judicial notice of the prior order?
THE COURT: Yes.
MR. RUTH: And that order is part of this file, this Court's file?
THE COURT: That's correct.
MR. WALKER: I assume you're going to do that, then?
THE COURT: Yes.
MR. RUTH: Judge, now regarding that, that's obviously one of the statutory provisions. That's all they've got to do to show that, and the second prong is to best interest of the child. So that obviously makes a big difference in how we proceed with this case.
I don't know that it's necessary to go into the other reasons, which we were prepared to address with failure to follow the plan of care. I don't think — if you need to hear those objections, we want to make them now, before we go forward.
But it looks to me like the prong of having a statutory reason is already there; is that correct?
THE COURT: Correct.
MR. WALKER: I guess I'm asking yo to make a finding there instead of spending the time to say the plans of care were never ratified by the Court, in fact, were rejected by the Court.
THE COURT: Yes, you're correct. We are basically at a best interest determination at this point because of prior finding. And now, some of those issues may relate to that best interest issue. But as far as the additional grounds, the State certainly can argue them, but they're not required to do so to get the relief that they're seeking, . . .
The record that is before us from the October 10, 2001 hearing shows clearly that the Department did absolutely nothing by way of counseling or any other efforts to reunite the children with their parents. The Department's closing argument shows that the omission of counseling was deliberate:
In this case, the parents have done some things that we asked them to do on the initial plan. They did get housing. She testified that they had employment, but it was kind of staggered. I think she testified that Mr. Hoffmeyer never really got employment.
They never received counseling, and counseling is the big thing that needs to re-unify these families. They need to deal with the issues, work through them, so that the children can safely be returned home. However, in this case, since there was a severe abuse finding — and according to the ASPA 1997 Federal Law which was adopted by this State in 1998, there is an exception to the reasonable efforts that need to be made by the Department, and one of those cases is in a severe abuse case. And the law states that the Department does not have to make reasonable efforts to re-unify the family when there is a finding of severe abuse.
Since the Court found severe abuse, I would state that that is res judicata. That issue has already been litigated. The court had entered that finding, and that order has been marked as an exhibit to this hearing.
The Order of November 30, 1999 does not purport to be a final judgment as to any issue. It is not designated as a final order as to the issue of severe child abuse under T.R.C.P. Rule 54.02. This rule provides:
Multiple Claims for Relief. — When more than one claim for relief is present in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court, whether at law or in equity, may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of the judgment adjudicating all the claims and the rights and liabilities of all the parties. [Added July 1, 1979.]
Since the November 30, 1999 Order lacks the required designation and the necessary findings of the court to effect finality as to the severe child abuse issue, the Order is interlocutory in nature and thus is not a final determination supporting the application of the res judicata bar.
It has long been held that a party relying upon res judicata has the burden of proving all of the elements necessary to establish it. Gregory v. Gregory, 803 S.W.2d 242 (Tenn.Ct.App. 1990); American National Bank v. Bradford, 28 Tenn. App. 239, 188 S.W.2d 971d (1945); Carter County v. Street, 36 Tenn. App. 166, 252 S.W.2d 803 (1952).
Res judicata cannot apply in the absence of finality of the prior judgment.
To sustain a plea of res judicata, the party pleading such has the burden of proof and it must appear that the issue of fact or right was not only involved in the former suit but was litigated and determined. Ragsdale v. Hill, 37 Tenn. App. 671, 269 S.W.2d 911. It is also essential the parties must be identical, in the same capacity or character in both suits and the decree or judgment in the former suit must be on the merits and final. Harris Cole Bros. v. Columbia Water Light Co., 114 Tenn. 328, 85 S.W. 897; Railroad v. Brigman, 95 Tenn. 624, 32 S.W. 762.
Merchants Manufacturers Transfer Co. v. Johnson, 55 Tenn. App. 537, 540, 403 S.W.2d 106, 107 (1966).
The November 30, 1999 judgment lacking finality res judicata is not applicable and Appellants are entitled to appellate review of the evidence upon which the trial court determined severe child abuse to exist. No transcript of the evidence in the November 5th and November 10th, 1999 hearings is before this Court. In In re: Adoption of J.D.W., this Court was presented with a substantially similar situation. Our consideration of the issue follows:
No transcript or other substantially complete record was made of the proceedings below or provided to us. The lack of such a record prevents our review of the evidence to determine whether it supports or preponderates against the trial court's findings and prevents our application of the clear and convincing evidence standard. While in other types of civil cases we would be required to conduct our review using the Statement of the Evidence, see Tenn.R.App.P. 24(c), or to accept as conclusive the trial court's findings, see King v. King, 986 S.W.2d 216, 220 (Tenn.Ct.App. 1998), such procedures do not satisfy the constitutional requirements applicable to an appeal from an order terminating parental rights.
In M.L.B. v. S.L.J., 519 U.S. 102, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996), the U.S. Supreme Court held that a parent's interest in defending against a state's action in terminating parental rights required a record complete enough to allow fair appellate consideration of the parent's claims. See M.L.B., 519 U.S. at 121-22, 117 S.Ct. at 566, 136 L.Ed.2d at 491. Relying on previous rulings regarding due process and equal protection, the Court in M.L.B. held, "we place decrees forever terminating parental rights in the category of cases in which the state may not `bolt the door to equal justice.'" M.L.B., 519 U.S. at 124, 117 S.Ct. at 568, 136 L.Ed.2d at 493. The Court ruled that the State could not withhold from an indigent parent seeking review of a termination of parental rights "a `record of sufficient completeness' to permit proper [appellate] consideration of [her] claims." M.L.B., 519 U.S. at 128, 117 S.Ct. at 570, 136 L.Ed.2d at 495.
The Court noted that the trial judge in M.L.B. had simply recited the statutory language, and that his order "describes no evidence, and otherwise details no reasons for finding M.L.B. `clear[ly] and convincing[ly]' unfit to be a parent." M.L.B., 519 U.S. at 121, 117 S.Ct. at 566, 136 L.Ed.2d at 491. The Court then stated, "Only a transcript can reveal to judicial minds other than the Chancellor's the sufficiency, or insufficiency, of the evidence to support his stern judgment." M.L.B., 519 U.S. at 121-22, 117 S.Ct. at 566, 136 L.Ed.2d at 491. While the trial court in the case before us made findings of fact and did not merely recite conclusions in statutory language, we think that distinction does not alter the effect of the lack of a complete record of the events at trial on our ability to provide the type of complete appellate review required in termination of parental rights cases. Without a complete record of the evidence below, we are unable to conduct the type of review required in termination cases.
In re: Adoption of J.D.W., No. M2000-00151-COA-R3-CV, 2000 WL 1156628, * 3-4, (Tenn.Ct.App. Aug. 16, 2000) (alteration in original) (footnotes omitted).
The Order of November 30, 1999 is not a "disposition" within the meaning of Tennessee Code Annotated section 37-1-159(a). It is not an ". . . Order of Final Disposition" within the meaning of Rule 36 of the Rules of Juvenile Procedure. It is, not having determined all issues between the parties and not having been certified as final under the Multiple Claims for Relief Provisions of T.R.C.P. Rule 54.02, not a final judgment. The order is a testimonial in self-contradiction. After being bitterly critical (justifiably so) of the inadequacy of the investigation by the Department of Children's Services and observing that "the testimony of Mr. Bible indicates that the state's investigation in this cause consisted of a one hour interview of each of the children and a visit and interview with Mr. and Mrs. Hoffmeyer," the court then proceeds to give credence to allegations, not proof. More critically, when one looks to the adjudicatory provisions of the November 30, 1999 Order we find the court ordering, in futuro, what should have been done before making an adjudication based upon evidence of which it had been strongly critical. The Department of Children's Services is ordered to ". . . conduct a thorough investigation in this cause. . ." This investigation is ordered to include a history of the prior residences of the Hoffmeyer family, prior referrals to state protective agencies, the status of criminal proceedings against George Edward Kiley, utilization of any state services, academic records of both minor children, past medical history of the children, and the allegation that Mr. Hoffmeyer participated in sexual abuse of Susan Hoffmeyer, relative to Robert Kiest. It further orders an updated psychological evaluation of Mr. and Mrs. Hoffmeyer with the recommendations of the psychological evaluator to be provided to the court. It then provides" "That said requested reports of the minor children and parents be provided to the court with copies provided to all parties by December 16, 1999 at 9:00 a.m. whereupon the court will consider the reports and notify the parties of a review date. . ."
If anything happened thereafter on December 16, 1999, or at any other time prior to the filing of the Petition to Terminate Parental Rights on September 7, 2000, it does not appear in the record before the Court. Thus, we have the Hoffmeyers in the position of awaiting their psychological evaluation ordered by the court to be completed and supplied to the court by December 16, 1999 and awaiting the review date, then to be ordered by the court. In the meantime, the order of November 30, 1999, being deemed a final order, their ten days for appeal pursuant to Tennessee Code Annotated section 37-1-159 expires. This simply can not be.
The judgment of the trial court is vacated the case is remanded to the trial court without prejudice to the right of any party to appeal upon supplementing of the record to provide proper appellate review of the evidence heard by the trial court in the hearings of November 5th and November 10th, 1999.
Costs of the cause are assessed to Appellee.
I disagree with the conclusion of the majority that the December 30, 1999 order entered in this cause was not a final order. In that order, the trial court specifically held that the children were dependent and neglected as defined by Tenn. Code Ann. § 37-1-102(b)(12)(F); found that there had been severe child abuse; found that the father had sexually battered one minor child and had violated Tenn. Code Ann. § 39-13-527; and awarded temporary custody of the children to the Department of Children's Services.
Tenn. Code Ann. § 37-1-159(a) provides for the appeal of a final order or judgment in a dependent and neglect proceeding to circuit court. Subsection (c) of that statute provides a deadline for hearing an appeal from a juvenile court decision "that involves the removal of a child or children from the custody of their natural and/or legal parents." If, after a hearing, a child is found by clear and convincing evidence to be dependent and neglected, the court may transfer temporary legal custody to a specified list of individuals or entities, including the Department of Children's Services. Tenn. Code Ann. § 37-1-129(c) — 130(a)(b). Thus, an order finding a child dependent and neglected and transferring custody, as did the December 30, 1999 order herein, is a final judgment on those issues. A parent whose child is found to be dependent and neglected and who is removed from that parent's custody has a right to immediately appeal such an order.
Tenn. Code Ann. § 37-1-129(a)(2) requires a court considering a petition alleging that a child is dependent and neglected to "determine whether the parents or either of them or another person who had custody of the child committed severe child abuse" and to file written findings of fact which are the basis of its conclusions on that issue. Such a finding triggers other statutory provisions including a prohibition on returning the child to the home of any person who engaged in or knowingly permitted the abuse until the court has received and considered reports and recommendations, by parties specified in the statute, prepared in light of a possible return of the child. Tenn. Code Ann. § 37-1-130(c). "No child who has been found to be a victim of severe child abuse shall be returned to such custody at any time unless the court finds on the basis of clear and convincing evidence that the child will be provided a safe home free from further such brutality and abuse." Tenn. Code Ann. § 37-1-130(d). The trial court's December 1999 order includes language to this effect.
Simply because the order directs that further action be taken does not affect its finality as to the findings of dependency and neglect and award of custody. Because temporary custody was awarded, future activity was required to determine future placement and any eventual award of permanent custody. In addition to the statutory finding required by Tenn. Code Ann. § 37-1-130(d), other statutory requirements exist regarding a child found dependent and neglected, and/or the victim of abuse, and the temporary custody of whom has been transferred from the parents. See, e.g., Tenn. Code Ann. § 37-1-130(c) (e). The juvenile court herein ordered evaluations and recommendations "regarding the possibility and advisability of reunification of the minor children with their parents."
When a child is removed from the home and placed with the Department, various reports and determinations are required, including the development of and a hearing on a permanency plan, Tenn. Code Ann. § 37-1-166. A foster care placement also requires a permanency plan within thirty (30) days of placement in foster care. Tenn. Code Ann. § 37-2-403(a)(1). The court is required to review such a plan. Tenn. Code Ann. § 37-2-403(a)(3). Periodic subsequent hearings are required for a child placed in foster care to review the permanency plan and goals. Tenn. Code Ann. § 37-2-409.
None of these further proceedings regarding a child's placement make the initial order finding grounds for award of temporary custody other than final. Such an order provides the legal basis for the court's and the department's continuing involvement in the child's placement and obligation to the child. Consequently, I would find that the 1999 order was a final order on the determination of dependency and neglect, award of custody, and the finding of child abuse.
I am troubled, however, by the Department's use of the prior finding of child abuse as a ground for termination of parental rights, coupled with its position that it was not required to use reasonable efforts to reunite this family, under the facts of this case.
It is accurate that one of the statutory grounds for termination of parental rights is "the parent or guardian has been found to have committed severe child abuse as defined in § 37-1-102, under any prior order of a court . . . ." Tenn. Code Ann. § 36-1-113(g)(4). Consequently, the ground itself is proved by a prior court order finding severe child abuse. Under a fair reading of the statute, the issue of whether abuse occurred does not need to be relitigated at the termination hearing. Apparently, neither the trial court nor this court is to go behind the order, absent a properly granted motion for relief from the judgment.
However, there are issues of the standard of proof. Unlike a decision to terminate parental rights or a finding of dependency and neglect, a finding of severe child abuse does not apparently have to be made upon a showing of clear and convincing evidence. The December 1999 order does not state that such a standard was applied; in fact, the language of the order implies that the court was troubled by the quality of evidence provided.
A finding of severe child abuse carries significant consequences, and a parent who is the subject of such a finding should be advised of those consequences at a time and in a manner that allows a meaningful decision on whether to appeal. The record before us does not indicate that, during the time available to them to appeal, the parents were informed that the finding of severe child abuse constituted a basis, in and of itself, for termination of their parental rights, regardless of their later conduct. To the contrary, the December 1999 order specifically mentions recommendations on reunification of the family. In addition, according to the Department "shortly after" the child was removed from the home, the Department and the parents entered into a permanency plan, the goal of which was to return the child to the family home.
A permanency plan for any child placed in foster care must include a goal of: (1) return of the child to the parent; (2) placement of the child with relatives; (3) adoption; (4) permanent foster care; or (5) emancipation. Tenn. Code Ann. § 37-2-403(a)(1). Such a plan must include a statement of the responsibilities between the parents, the agency and the caseworker. Tenn. Code Ann. § 37-2-403(a)(1). The court must review a proposed permanency plan, and may approve it or make necessary modifications. Tenn. Code Ann. § 37-2-403(a)(2)(a). A hearing is required, and deadlines exist. Tenn. Code Ann. § 37-2-403(a)(3). Such plans are subject to modification and shall be reevaluated and updated at least annually. Tenn. Code Ann. § 37-2-403(a)(1).
This requirement does not apply where a long term agreement for foster care has been reached in accordance with statutory requirements.
Although the record before us does not reflect the entirety of the court's and the Department's involvement with this child and this family, it does give us a more complete picture than just the two orders at issue. According to documents in the record, the child first came into custody of the Department in February of 1999. The first permanency plan in the record is dated March 8, 1999, and was signed by the child, the DCS caseworker, the parents, and the mother's attorney on March 9, 1999.
Thus, the November 1999 hearing which resulted in the December 1999 order finding the child dependent and neglected was held ten months after the child was placed in temporary custody of the Department and nine months after the Department and the parents entered into agreement on a permanency plan which had a goal of reunification of the family. That order included direction from the court that it receive recommendations on reunification of the family. The order does not address the March 1999 permanency plan, and that plan was never approved by the court.
This explains the court's reference to the inadequacy of the Department's investigation even though it had ten months to do that investigation.
The record includes another permanency plan, introduced through the Department, dated June 16, 2000. This plan included a statement that "The Department will assist the family and child in completing the permanency plan." It also stated that the parents will receive counseling and admit their role and responsibility in abuse and named as the party responsible for those steps "counselor, DCS and placement." The caseworker admitted that the plan did not state that the mother was responsible for contacting a counselor. The plan was signed by the child, the parents, the case manager and the foster parent. The goal of this plan remained "Return to parent." The plan was never approved by the court.
The technical record herein contains no record of court action during this time. However, at the termination hearing herein, the case manager testified to several events or conversations taking place when she and the parents appeared in court on August 23, 2000. The case manager's notes, entered into evidence, include a notation dated 8/23/00 stating the parents appeared in court that day. "This was a review of the termination of parental rights on [the child]. We are scheduled to reappear in court on 9/13/00. At that time Referee Flemming wants the petition filed." Obviously, this notation is not an official record of court action, but does confirm the case manager's testimony that the parents and the state appeared in a court hearing on that date.
The case manager testified that the last time she spoke with the parents was August 23, 2000, when they were in court for the hearing. She also testified that she found out at that time that the parents had moved, but she never visited them at the new address or did a home study there. At the termination hearing, the caseworker testified there had been regular visits at the DCS office until sometime the year before, stating, "I believe we have a court order for them not to visit anymore." The record before us contains no such order, and the June 2000 permanency plan indicates visitation had been ordered, was occurring, and was to continue.
Three months after the last permanency plan was signed, on September 7, 2000, the Department filed its first Petition to Terminate Parental Rights, alleging as grounds the prior finding of severe child abuse. Although the Department later took the position that a finding of severe child abuse relieves it of any responsibility to use reasonable efforts to help the parents meet their responsibilities under a permanency plan or to reunify the family, attached to the original petition is an "Affidavit of Reasonable Efforts." In that affidavit, the case manager testifies that the Department had provided the parents visitation with the minor child, psychological assessments, names of resources or agencies to provide housing and other help. The affidavit also states, "We provided the Hoffmeyers with a copy of the permanency plan which outlines barriers to permanency, services needed and action steps."
Again, the record is devoid of any records of the court reflecting activity for a number of months after the petition for termination was filed. Somewhat inexplicably, though perhaps in an attempt to comply with the requirements regarding review of permanency plans, the Department filed a Notice of Permanency Planning Hearing on June 27, 2001, nine months after filing the initial petition to terminate parental rights. That notice stated that a permanency planning hearing had been scheduled "for further dispositional hearing to comply with . . . T.C.A. § 37-2-403 and 409." The notice stated:
In addition to the initial permanency plan, within ninety (90) days after a child is placed in foster care and at least every six (6) months thereafter, a report on progress made in achieving the goals of the plan must be submitted to the appropriate court or board. Tenn. Code Ann. § 37-2-404.
The purpose of this hearing shall be to determine the future status of the child, including, but not limited to, whether the child should be returned to the parent, should be continued in foster care for a specified period, should be placed for adoption, or should, because of the child's special needs or circumstances, be continued in foster care on a permanent or long-term basis, and shall determine the extent of compliance of parties with the terms of the permanency plan, and the extent of progress in achieving the goal of the plan.
Based on the language of that notice, it would appear that the Department, nine months after filing a petition to terminate parental rights on the basis of a prior finding of abuse, still considered all the options for the goal of the permanency plan to be open for consideration and available, including a return to the parents. The record does not include any new plan or order or other indication of the result of the hearing, which was set for July 11, 2001. However, the record includes an order from the juvenile court, dated July 19, 2001, reflecting only that the matter of the subject child "came on for review" and, in the space for other orders, reflects a notation "Atty. review on 8/2/01 at 9:00 to set hearing for termination."
An Amended Petition to Terminate Parental Rights was filed August 6, 2001, ten months after the initial petition to terminate parental rights was filed. The amended petition alleged as grounds: (1) the failure of the parents to comply with their responsibilities under the permanency plans "entered into by said Defendants with the State of Tennessee, Department of Children's Services;" and (2) the continued existence of the conditions which led to removal or the existence of other conditions which in all probability would prevent the child's safe return to the home, that there was little likelihood these conditions will be remedied in the near future, and that continuation of the parent-child relationship greatly diminished the child's chance of early integration into a stable and permanent home. Tenn. Code Ann. § 36-1-113(g)(3)(A).
The Amended Petition did not re-adopt, incorporate, or refer to the single ground alleged in the original complaint. Other than the word "Amended" in its title, the document did not refer to the original petition at all. The amended petition repeated the various preliminary information and jurisdictional statements contained in the original petition. In short, the amended petition, on its face, is a substitute for the original petition. At the beginning of the trial, when the question of what grounds were at issue was raised, the trial court stated that, "even though the pleadings may be deficient in the form in the reference to the prior pleading" he would allow the Department to orally amend the petition to include the ground of a prior finding of severe child abuse "based on the fact that the record is clear that there has been a prior finding."
The court viewed this ruling as eliminating the need for proof of any other ground and making the only issue the best interest of the child. The Department indicated it wanted to provide proof on the other two grounds. The trial court dismissed the ground of failure to comply with the permanency plan because there was no existing permanency plan which had been approved by the court.
Despite its prior actions and disregarding the permanency plans it had agreed to, at the termination hearing the Department took the position that it was not required to use reasonable efforts to help the parents comply with the plan with the goal of reunification of the family, as required by Tenn. Code Ann. § 37-1-166. Presumably, the Department's position also includes the reasonable efforts consideration in a termination proceeding, as required by the following provision:
That statute provides, in pertinent part:
(a) At any proceeding of a juvenile court, prior to ordering a child committed to or retained within the custody of the department of children's services, the court shall first determine whether reasonable efforts have been made to:
. . . .
(2) Make it possible for the child to return home.
(b) Whenever a juvenile court is making the determination required by subsection (a), the department has the burden of demonstrating that reasonable efforts have been made to prevent the need for removal of the child or to make it possible for the child to return home.
Tenn. Code Ann. § 37-1-166.
In determining whether termination of parental or guardianship rights is in the best interest of the child pursuant to this part, the court shall consider, but is not limited to, the following:
. . . .
(2) Whether the parent or guardian has failed to effect a lasting adjustment after reasonable efforts by available social services agencies for such duration of time that lasting adjustment does not reasonably appear possible;
Tenn. Code Ann. § 36-1-113(i).
As the Department maintains, Tenn. Code Ann. § 37-1-166(g)(4)(A) provides that reasonable efforts to reunify a family are not required to be made if a court has determined that a parent has subjected the child or a sibling to severe child abuse. However, there is nothing in the language of the statute to prevent the Department from making such efforts, as it claims it did here.
We find no statement or intent of the legislature that a finding of severe child abuse must always result in the termination of parental rights. Instead, the statutory system leaves to the discretion of the Department and the courts the determination of whether termination is to be sought and granted under the particular facts of the situation. The Department has the initial discretion to determine whether a particular situation is amenable to efforts to reunify the family. The statute regarding the Department's obligations to use reasonable efforts to make it possible for a child to safely return home provides, in pertinent part, that if reasonable efforts "are not made" because of a court determination that one of the situations which obviates the reasonable efforts requirement exists,
One of those determinations is that the parent has subjected the child to aggravated circumstances. Tenn. Code Ann. § 37-1-166(g)(4)(A). The definition of "aggravated circumstances" includes severe child abuse. Tenn. Code Ann. § 36-1-102(9).
(A) A permanency hearing shall be held for the child within thirty (30) days after the determination; and
(B) Reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan, and to complete whatever steps are necessary to finalize the permanent placement of the child.
Tenn. Code Ann. § 37-1-166(g)(5). The "determination" triggering the permanency plan hearing is the court determination that one of the situations exist in which reasonable efforts to preserve and unify families are not required, herein the finding of severe child abuse.
Thus, the legislature envisioned a decision that reunification is not possible within thirty days of the determination of severe child abuse. In that situation, the Department is not obligated to use reasonable efforts to reunify the family; such efforts would be inconsistent with the permanency goals for the child. See Tenn. Code Ann. § 37-1-166(g)(3).
The record herein does not indicate that any such hearing was requested or held within thirty days of the trial court's finding of abuse. Instead, the Department proceeded with a permanency plan with the goal of reunification, not one of permanent placement elsewhere, and continued on that path, at least until the first petition to terminate parental rights was filed, and perhaps beyond. The record does not include any permanency plan or testimony to indicate that a plan with a different goal was ever presented to the parents, agreed to, or approved by the court.
While the Department may not be required, in specified situations, to use reasonable efforts to rehabilitate the parents so that a child could safely return to the home, once the Department agrees to a permanency plan outlining the parents' and its responsibilities, its ability to rely on Tenn. Code Ann. § 37-1-166(g)(4) is limited. Once the Department agrees to responsibilities under a permanency plan whose goal is reunification of the family, it waives its option to refuse assistance to reunify that family until the permanency goal is modified.
Where a plan, or a modified plan, with a goal other than reunification is agreed to or ordered, continuation of reasonable efforts to reunify the family would be inconsistent with the new permanency plan. Thus, where the goal of the plan is something other than a reunification of the family, then the reasonable efforts required are those necessary to finalize a permanent placement of the child. Tenn. Code Ann. § 37-1-166(g)(3).
I would find that once the Department took action toward reunification of the family, and the family relied upon the plan agreed to by the Department, the Department's obligations to use reasonable efforts were triggered, and it can no longer rely on Tenn. Code Ann. § 37-1-166(g)(4)(A) to excuse its lack of action. This court has taken a similar position before. See In re A.M.B., No. M2000-01130-COA-R3-CV, 2001 Tenn. App. LEXIS 408, at *9 n. 1 (Tenn.Ct.App. June 1, 2001) (no Tenn.R.App.P. 11 application filed) (stating that although the state asserted it was not required to provide counseling to the mother because its duty to use reasonable efforts to preserve and reunify families is removed where "aggravated circumstances" exist under Tenn. Code Ann. § 37-1-166(g)(4)(A), "We are not content to base our decision on that statute, however, since the State did establish a program designed to reunify [the mother] and the child").
Consequently, I would hold that the Department agreed to use reasonable efforts to reunify the family and was obligated to continue those efforts or modify the permanency goal for this child so that its efforts could be properly directed toward the new goal, whether that be adoption, placement with a relative, long-term foster care, or something else. After two and a half years of custody of this child, and at least two permanency plans with a goal of returning the child to her parents, the Department waived its ability to rely on Tenn. Code Ann. § 37-1-166(g)(4)(A).
The Department's failure to use reasonable efforts to reunify the family can result in denial of termination of parental rights, especially where the failure is directly related to an allegation by the Department that the parent failed to meet his or her requirements under a plan or to remedy conditions which prevent the safe return of the child to the home. See In re D.D.V., No. M2001-02282-COA-R3-JV, 2002 Tenn. App. LEXIS 126 (Tenn.Ct.App. Feb. 14, 2002) (no Tenn.R.App.P. 11 application filed).
As discussed above, such failure to use reasonable efforts also is relevant to a determination of whether to terminate parental rights on the basis of a prior finding of child abuse where the Department has elected to proceed with efforts to reunify the family. While a prior finding can, standing alone, provide the grounds for termination when the Department or the court takes action consistent with an intent to proceed toward such termination, inconsistent action should make reliance on the statute no longer available.
See Tenn. Code Ann. § 36-1-113(i) (regarding considerations on best interest).
It is fundamentally unfair for the Department to lead parents to believe they can once again regain custody of their children by complying with specified obligations and then, months or years later, deny any responsibility of its own and seek termination on the basis of a finding made before the permanency plan to achieve reunification was agreed to. It is not consistent with the best interests of the child to visit with and maintain a relationship with parents, while adjusting to a foster home, with the child participating in planning for reunification of the family, when such reunification can be prevented by use of the prior finding regardless of the parents' or the Department's compliance with their respective obligations under the plan.
Although the General Assembly has directed the Department to file a petition to terminate parental rights in specified circumstances, including "if a juvenile court has made a finding of severe child abuse as defined at § 37-1-102," Tenn. Code Ann. § 36-1-113(h)(1)(D), it has also recognized that the Department can choose, instead, to work toward reunification of the family. In addition,
(2) At the option of the department, the department may determine that a petition to terminate the parental rights of the child's parents shall not be filed . . ., if one of the following exists:
. . . .
(C) The department has not made reasonable efforts under § 37-1-166 to provide to the family of the child, consistent with the time period in the department permanency plan, such services as the department deems necessary for the safe return of the child to the child's home.
Tenn. Code Ann. § 36-1-113(h)(2).
In the case before us, the Department could have determined that the abuse was severe enough to warrant a plan of termination of parental rights before it allowed the parents to believe otherwise. That does not appear to be the case, herein, however. It appears that the Department was originally of the opinion that the child's return to the home might be possible if certain remedial measures were taken. Thus, it is not really the prior finding of child abuse which triggered the Department's petition to terminate parental rights. Instead, it was the Department's later determination that sufficient improvement had not taken place and was unlikely to take place.
In its brief before us, the Department emphasizes the parents' failure to undergo substantive counseling to address the abuse suffered by their children or the issues that led to that abuse. We agree that counseling is an important precondition to returning a child to a home where abuse has occurred. In fact, Tenn. Code Ann. § 37-2-403(a)(5) requires that in cases involving child abuse or child neglect, where such child is placed in foster care, the parenting plan shall stipulate that the abusing or neglecting parent shall receive appropriate rehabilitative assistance through mental health consultation if so ordered by the court.
That argument by the Department indicates, however, the Department's concern was with the conduct of the parents after the removal of their child. Thus, it is not the prior finding that is the real ground for termination. Rather, it is the Department's belief that sufficient remedial measures have not been taken by the parents to allow the safe return home of the child. Accordingly, the Department filed the amended petition alleging essentially that: after more than two years, the parents had not remedied conditions to the extent that the child could return home and, rather than continuing the uncertainty of the child's future, the best interests of the child were served by termination of the parents' parental rights.
The trial court ruled that this ground was shown by clear and convincing evidence, and the majority opinion herein does not address this finding. The existence of only one ground need be proved to warrant termination of parental rights. In re C.W.W., 37 S.W.3d 467, 473-74 (Tenn.Ct.App. 2000). Therefore, we must review that finding.
It is apparent that the trial court was disturbed by the Department's lack of effort to help this family meet the goal of reunification or help remediate the conditions or situation which prevented the return of the child to the home, stating "the state has not facilitated matching this family with resources to try to get them to attempt to ratify the problems that brought the children before the court." In addition, the court found, "There are still conditions that persist that the Court does not know if they could have been effectively remedied." Despite the court's finding regarding the Department's lack of help to the family, the trial court still found there was little likelihood the conditions would be improved.
The trial court however, appears to have been persuaded that the Department was not required to use reasonable efforts to reunify this family and did not place the burden of proving such efforts on the Department.
Therefore, I would vacate the judgment terminating parental rights and remand for a hearing on persistence of conditions ground, using the appropriate standards. Thus, I agree with the majority that the judgment should be vacated, but for different reasons.