Opinion
No. M2008-00469-COA-R3-PT.
October 15, 2008 Session.
Filed July 15, 2009.
Appeal from the Juvenile Court for Rutherford County; No. TC 634; Donna Scott Davenport, Judge.
Judgment of the Juvenile Court Affirmed as Modified.
K. Robert Barlowe, Nashville, Tennessee, and Stephen W. Pate, Murfreesboro, Tennessee, for the appellants, S. H. and C. H.
Robert E. Cooper and Amy T. McConnell, Nashville, Tennessee, for the appellee, Tennessee Department of Children's Services.
Richard H. Dinkins, J., delivered the opinion of the court, in which Frank G. Clement, Jr., J., and Walter C. Kurtz, Sr. J. joined.
OPINION
Mother and Father appeal the termination of their parental rights based upon the court's finding of abandonment by failure to provide a suitable home, the persistence of conditions that led to the removal of the children, the parents' substantial non-compliance with the permanency plan, severe abuse of the children and that termination was in the best interest of the children. Finding by clear and convincing evidence that grounds for termination exist and that termination is in the best interest of the children, we affirm the trial court's ruling.
I. Factual and Procedural Background
This appeal involves the termination of parental rights with regard to three children who first came into the protective custody of the Department of Children's Services ("DCS") in January 2005; custody was obtained as a result of a Petition for Temporary Custody filed by DCS. The petition alleged that there were unsafe and unsanitary conditions in the home and that there had been at least six prior cases involving the family. An Affidavit of Reasonable Efforts accompanying the Petition detailed specific conditions at the home, as well as efforts made by DCS to get Mother and Father to address the conditions. The court entered an order placing the children temporarily in DCS custody pending an adjudicatory hearing. The conditions at the home were so extreme that Mother and Father were also charged in Juvenile Court with child abuse and neglect; they each pled guilty, were fined and placed on probation. One of the conditions attached to the disposition of their case was that each would comply with the permanency plan and its recommendations.
The prior DCS investigations had not resulted in court proceedings.
Permanency plans were developed for each of the children in February 2005, with the goal of reunification with parents/exit custody to live with relatives and a target date of February 9, 2006. The desired outcomes for Father were to maintain a clean and stable home; to have "no further founded child protective services cases"; to effectively parent the children and maintain their health and well-being; to have sufficient finances to meet the family's needs; and to resolve all his criminal charges. The desired outcomes for Mother were the same, with the additional outcomes that she would explore her medical needs that interfered with her ability to care for the children; that any medical issues would be identified and treated as she was financially able; and that she would develop appropriate ways to deal with anger and frustration. Specific actions were developed to achieve the outcomes. Mother and Father were allowed four hours of supervised visitation per month, with Mother's visitation to begin upon her release from jail. The plans were approved by the court on March 18, 2005.
Following the adjudicatory hearing held on May 3, the court continued DCS' custody of the children. The court found the children to be dependent and neglected, based on "the environmental neglect issues, the condition of the home and the condition of the children at the time of removal"; the court also found that "all reasonable efforts have been rendered to prevent or eliminate the removal" of the children from the home and ordered Mother and Father to comply with the permanency plans.
The permanency plans were revised in July 2005. Because DCS efforts to identify an appropriate placement among relatives had not been successful, the permanency goal was changed to reunification with parents for each of the children. Visitation was changed to one hour per week of unsupervised visitation, not in the home; DCS was to make random home visits over a forty-five day period and, if the home was clean, visitation could occur in the home. With respect to progress toward the original desired outcomes, the July 2005 permanency plans noted that Mother and Father had participated in five visits with Homemaker Services and that both Father and Mother's criminal charges had been resolved; the plan provided that DCS would apply for funding for in-home parenting services for Father and Mother. The plan noted that Mother had been denied TennCare and would have to take on-going measures to address the needs that had been identified in her medical and mental health assessments. The goal target dates were revised to July 15, 2006, for one child and July 19, 2006, for the other two children. The revised plans were approved by the court on September 6, 2005; as part of its approval the court found that "the responsibilities outlined in the plan are reasonable, are reasonably related to the achievement of the goal, are related to remedying the conditions which necessitated foster care, and are in the best interests of the child." In its order adopting the plan, the court found that DCS had made reasonable efforts towards the permanency goals.
No reason was given for the different target dates.
On September 8, 2005, Child Protective Services initiated an investigation of an allegation that Father had sexually abused the children; as a result of the investigation Father was indicated. On October 11, the permanency plans were changed in light of the allegations. Specifically, adoption was added as a permanency goal, with the following notation: "Due to DCS exploring all relative[s] and none were appropriate, due to continued barriers toward reunification, and the length of time in custody, a dual goal of reunification and adoption was deemed appropriate." Visitation was changed back to being supervised pending the results of the investigation.
Child Protective Services is a division of DCS. See www.tn.gov/youth/dcsguide/dcscommissioners___staff.
The permanency plans were again revised in January 2006. The permanency goal was changed to adoption for all three children "due to the length of time the children have been in custody"; the target date was April 20, 2006. The plans noted that, due to a Child Protective Services' investigation which was "founded," visitation was continued to being supervised. The plans reported there had been successful home visits by DCS on August 11 and November 9, 2005, but that safety hazards were observed at visits on September 20 and in November. With respect to the indication of Father following the September 2005 investigation, the plan noted that in-home counseling for Father had been approved in December and was on-going. The plans reported that a psychiatric evaluation and psychotherapy services as well as parenting skills training were put in place for Mother in December 2005.
A hearing was held on April 18, 2006, on DCS' motion to ratify the January permanency plans and on Father's motion to return custody of the children to him. Following argument of counsel, the court reset Father's motion for July 20, to be heard along with DCS' petition to terminate Mother's and Father's parental rights; the court declined to ratify the January permanency plans, stating that the October 2005 plans, which had been ratified on December 6, would remain in effect.
At the April 18 hearing, counsel for DCS advised the court that DCS was planning to file a petition to terminate parental rights on April 19; this petition was not filed.
On July 12, DCS initiated a new proceeding to adjudicate the children dependent and neglected, alleging that the parents had committed severe child abuse within the meaning of Tenn. Code Ann. § 37-1-102(b)(21), and requesting that DCS be relieved of pursuing reasonable efforts to reunify the family.
Following the hearing on July 20 on Father's motion to return custody, the court entered an order dismissing Father's motion to return custody of the children, finding that Mother and Father "have not substantially complied with the requirements of the permanency plan," and maintaining custody in DCS. In its order, the court also made specific findings of fact regarding conditions in the home, including a finding that the home was not "a safe and proper environment." The court also found that the amount of services provided by DCS exceeded $3,000.00 and that DCS had made reasonable efforts to assist the family with reunification. The court granted DCS' motion to ratify the January permanency plans, finding that DCS had made reasonable efforts to meet the permanency goals through: providing homemaker services, a psychological assessment for Father, and in-home counseling with both parents; supervising visitation; and securing assessments for the children. The order changed the goal of the permanency plans to the sole ground of adoption and relieved DCS of making further efforts to reunify.
DCS initiated the proceeding to terminate Mother and Father's parental rights on January 19, 2007, alleging abandonment by failure to provide a suitable home, substantial noncompliance with the permanency plan, persistence of conditions, and severe child abuse. The petition was accompanied by an Affidavit of Reasonable Efforts executed by Stephanie Etheridge, the DCS case manager. Mother and Father duly filed answers to the petition, denying that grounds for termination of their rights existed.
Following a hearing which lasted twelve days, the court entered its order terminating the parental rights of Mother and Father. Upon the facts presented, the court found by clear and convincing evidence that each ground alleged in the petition had been sustained and that termination was in the best interest of the children. Mother and Father appeal, asserting generally that the findings of the court are not supported by clear and convincing proof.
The Guardian ad litem urges affirmance of the Juvenile Court determination.
I. Standard of Review
A parent has a fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996). Thus, the state may interfere with parental rights only if there is a compelling state interest. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745 (1982)). Our termination statutes identify "those situations in which the state's interest in the welfare of a child justifies interference with a parent's constitutional rights by setting forth grounds on which termination proceedings can be brought." In re W.B., 2005 WL 1021618, at *7 (citing Tenn. Code Ann. § 36-1-113(g)). A person seeking to terminate parental rights must prove both the existence of one of the statutory grounds for termination and that termination is in the child's best interest. In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002); Tenn. Code Ann. § 36-1-113(c).
Because of the fundamental nature of the parent's rights and the grave consequences of the termination of those rights, courts must require a higher standard of proof in deciding termination cases. Santosky, 455 U.S. at 769; Matter of M.W.A., Jr., 980 S.W.29 620, 622 (Tenn.Ct.App. 1998). Thus, both the grounds for termination and the best interest inquiry must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence "establishes that the truth of the facts asserted is highly probable . . . and eliminates any serious or substantial doubt about correctness of the conclusions drawn from the evidence." In re M.J.B., 140 S.W.3d 643, 653 (Tenn.Ct.App. 2004). Such evidence "produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts sought to be established." Id. at 653.
In light of the heightened standard of proof in these cases, a reviewing court must adapt the customary standard of review set forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d at 654. As to the court's findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise, in accordance with Tenn. R. App. P. 13(d). Id. We must 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 elements necessary to terminate parental rights. Id.
As a preliminary matter, we note that many of the court's factual findings were based on the testimony of the witnesses, including Mother and Father, whom the court found "have been untruthful, evasive and deceitful to this Court." Because the trial court observes the witnesses as they testify, it is in the best position to assess witness credibility. Frazier v. Frazier, 2007 WL 2416098, *2 (Tenn.Ct.App. Aug. 27, 2007) (citing Wells v. Tenn. Bd. of Regents, 9 S.W.3d 779,783 (Tenn. 1999)). Therefore, we give great deference to the court's determinations on matters of witness credibility. Id. "Accordingly, we will not reevaluate a trial judge's credibility determinations unless they are contradicted by clear and convincing evidence." Id.
II. Discussion
A. Abandonment by failure to provide a suitable home
Tenn. Code Ann. § 36-1-102(1)(A)(ii) defines "abandonment" as respects this issue as follows:
(ii) The child has been removed from the home of the parent(s) or guardian(s) as a result of a petition being filed in the juvenile court in which the child was found to be a dependent and neglected child, as defined in § 37-1-102, and the child was placed in the custody of the department . . . that the juvenile court found . . . that the department . . . made reasonable efforts to prevent removal of the child . . . and for a period of four months following the removal, the department or agency has made reasonable efforts to assist the parent(s) or guardian(s) to establish a suitable home for the child, but that the parent(s) or guardian(s) have made no reasonable efforts to provide a suitable home and have demonstrated a lack of concern for the child to such a degree that it appears unlikely that they will be able to provide a suitable home for the child at an early date. . .
Tenn. Code Ann. § 36-1-102(1)(A)(ii).
The trial court found, based on the testimony of the case manager, that there were primary and secondary grounds for the removal of the children from the home. The primary grounds were "environmental neglect, substantial risk of harm, medical maltreatment and pending criminal charges"; secondary grounds were financial concerns and inappropriate parenting. The court also found that DCS made reasonable efforts to assist Mother and Father, particularly with reference to the conditions in the home, by referring them to homemaker services and paying for three months of in-home services, but that Mother and Father had failed to cooperate with homemaker services and, as a consequence, the home remained filthy. The court concluded that Mother and Father had "willfully and consistently not maintained a clean, habitable home for these children." Mother and Father challenge this finding, citing evidence of delay in DCS funding for the services provided and efforts made by Mother and Father to improve conditions in the home.
Contrary to the requirements of Rule 27(a)(7), Tenn. R. App. P., Mother's brief does not contain citations to the record for the arguments she advances; consequently, our review of this issue utilized the citations in Father's brief.
The proof in the record shows that DCS' involvement with Mother and Father predated the proceedings which led to the removal of the children in January 2005. The first involvement was on March 10, 2004, when Child Protective Services ("CPS") received a referral that the two children had been exposed to environmental neglect, drugs and physical abuse. There was a referral on August 5, 2004, alleging lack of supervision of the youngest child, born March 31, and a referral on August 13, again alleging environmental neglect as well as medical maltreatment on the part of Mother. The referral of March 2004 was unfounded, based on a visit by the case manager on March 22. The August referral resulted in a finding of environmental neglect and the imposition of a plan of action by DCS, requiring the home to be cleaned. At a follow-up visit on August 20, the home was clean; but a second follow-up on August 24 resulted in an indication of neglect due to health hazards in the home.
At the time, the third child was not yet born.
This investigation also included allegations of sexual improprieties with a 15 year old girl who was residing with the family.
Ms. Etheridge, the case manager, testified that DCS began providing homemaker services in March 2005 and funded the service for three months; Mother and Father had five visits with the homemaker program over that period of time. When a follow-up inspection was done at the home on June 23, some of the conditions that led to the removal of the children remained. In Ms. Etheridge's judgment, Mother and Father had not taken proper advantage of the service, the conditions which led to the children's removal persisted and the home was not suitable for the children to return at that time. Of particular concern to Ms. Etheridge was the fact that Mother and Father had only chosen to have five visits from the homemaker service over a three month period of time, that progress in addressing the environmental problems in the home was not consistent and that any cleanliness achieved at the home was not maintained. These problems continued throughout the two year period prior to the filing of the termination petition.
There is clear and convincing proof in the record that Mother and Father's efforts toward remedying the environmental concerns that led to the children's removal were sporadic, at best, and were geared more toward passing DCS home inspections than toward establishing a stable and clean home environment. DCS identified specific areas of need and resources to address those needs and Mother and Father bear responsibility for failing to take advantage of the resources made available to them and adopting measures to address the environmental problems on a consistent and continuing basis. DCS was not required to force Mother and Father to take advantage of the homemaker services; neither was it required to continue to provide a resource that the parents were not using.
"The Department does not have the sole obligation to remedy the conditions that required the removal of the children from their parents' custody. When reunification of the family is a goal, the parents share responsibility for addressing these conditions as well. Thus, parents desiring the return of their children must also make reasonable efforts to rehabilitate themselves and to remedy the conditions that required the Department to remove the children from their custody."
In re Giorgianna H., 205 S.W.3d 508 at 519.
The trial court based its finding of failure to provide a suitable home in part on the court's disbelief of the testimony of Mother and Father and the photographs presented by them, finding:
The Court finds next by clear and convincing evidence, finding in fact, and conclusion of law the [Mother and Father] have not even made minimal efforts to improve, because the Court does not believe them. The Court believes that the pictures presented and the testimony [Mother and Father] gave the past few months does not, because the Court does not believe the[sic], demonstrate a concern for the children's safety. So the Court finds by clear and convincing evidence as to one ground of termination of the State, that the parents have failed to establish a suitable home, choosing instead to deceive this Court, mislead this Court, lie to this Court, making the Court believe that their past actions would only reoccur. And those past actions can be best described as just filth.
The court's finding that Mother and Father were not credible witnesses is not contradicted by clear and convincing evidence; consequently, we will not disturb it. See Frazier, supra.
B. Substantial noncompliance with permanency plan
Tenn. Code Ann. § 36-1-113(g)(2) provides that substantial noncompliance with a permanency plan is a ground for termination of parental rights. In order for noncompliance to justify the termination of parental rights, it must be "substantial." In re S.H., 2008 WL 1901118, at *7 (Tenn.Ct.App. Apr. 30, 2008) (no Tenn. R. App. P. 11 application filed). Mere technical noncompliance by itself is not sufficient to justify the termination of parental rights. See id. In conjunction with terminating a parent's rights on the ground of substantial noncompliance, the trial court must find that the requirements of the permanency plan that the parent allegedly did not satisfy are "reasonable and related to remedying the conditions which necessitate foster care placement." In re Valentine, 79 S.W.3d at 547 (quoting Tenn. Code Ann. § 37-2-403(a)(2)(c)). Noncompliance with requirements in a permanency plan that are neither reasonable nor related to remedying the conditions that led to the removal of the child from the parents' custody is not relevant for purposes of Tenn. Code Ann. § 36-1-113(g)(2). In re S.H., 2008 WL 1901118, at *7. Additionally, the parents' degree of noncompliance with a reasonable and related requirement must be assessed. See id. The issue of substantial noncompliance with the requirements of a permanency plan is a question of law; therefore, it is reviewed de novo with no presumption of correctness. In re Valentine, 79 S.W.3d at 546.
1. Mother
The requirements of the permanency plans with respect to Mother focused largely on identifying her physical and mental health needs, as well as identifying sources of payment for her treatment. The initial plan for Mother established as desired outcomes and dates of expected achievement the following: (1) maintain a clean, safe and stable home — August 15, 2005; (2) have no further founded CPS cases — February 9, 2006; (3) explore her medical needs that interfere with her ability to caretake for the children — August 15, 2005; (4) identify any medical health issues and treat them as she was financially able to do — August 15, 2005; (5) gain new skills to effectively parent the children and maintain their health and well-being — August 15, 2005; (6) have sufficient finances to meet the family's needs — February 10, 2006; (7) develop appropriate ways to deal with anger and frustration — February 9, 2006; and (8) resolve all criminal charges — February 9, 2006.
Father's initial permanency plan included outcomes numbered (1), (2), (5), (6) and (8) on Mother's plan.
The July 2005 permanency plan retained each desired outcome and changed the dates of expected achievement to July 19, 2006. The plan also noted the five homemaker visits' that Mother had been denied TennCare; that she had completed her psychological evaluation; that Mother had completed a parenting assessment (which also recommended the psychiatric evaluation, psychotherapy and parenting skills training); that Mother and Father had prepared a family budget; and that counsel had been requested to resolve the pending criminal matters.
The psychological evaluation had recommended that Mother undergo a psychiatric evaluation, psychotherapy and parenting skills training; a July 19, 2006, target date was set to complete these recommendations. Mother was to undergo the psychiatric evaluation and begin individual counseling by August 31, 2005.
The January 2006 plan noted that safety hazards were found in the home during DCS visits in September and November 2005; that Mother was receiving food stamps; that she had "improved in interactions and discipline with the children; and that the psychiatric evaluation, psychotherapy and parenting skills training were put in place, after some funding and provider issues, in December 2005. Many of the action steps to achieve the desired outcomes were recorded as "ongoing."
The trial court exhaustively analyzed the proof of Mother's compliance with the requirements of the permanency plan and discussed at length the interrelatedness of the requirements. While Mother asserts that the court erroneously focused on Mother's failure to achieve the desired outcomes set out in the plans, our review of the court's order as a whole leads to the conclusion that, while the court referenced the desired outcomes in its discussion, the court did not improperly measure Mother's or Father's efforts to comply with the parenting plan requirements. In this regard, the court noted that many of the plan requirements were the same for both Mother and Father and that compliance with the requirements required cooperation between the parents.
The court premised its discussion of this issue on the specific requirements of the permanency plan. With respect to the requirement that Mother (and Father) maintain a clean and safe home, the court ruled as follows:
. . .the Court does not believe that the parents are keeping a daily safe and clean home because the Court does not believe their words. Even though there is testimony concerning recent visits, the Court thinks that they are just posing themselves as reformed until this is over.
In this regard, the court had before it the testimony that Mother and Father had only chosen to have five visits from the homemaker service over a three month period of time, that progress in addressing the environmental problems in the home was not consistent and that any cleanliness achieved at the home was not maintained.
Mother erroneously contends that the fact that the requirement that Mother would cooperate with homemaker services was marked "complete" on the January 2006 permanency plan indicates that she had successfully completed that requirement. This contention, however, is contrary to the proof that the services were made available to Mother and Father over a three month period and they chose to only have five visits; the action was "complete" only because there was nothing further to do since Mother and Father did not utilize the service.
With respect to the requirements regarding Mother's medical and mental health needs, the court noted that Mother had applied for and been denied TennCare coverage, but that she had taken no other measures to get health insurance, which was available through Father's employment. The court found that they chose not to get coverage under Father's plan because of the expense. The court also found that DCS had given Mother three other sources to receive medical care, Meharry Medical College, the Health Department and Primary Hope Clinic, but that Mother did not avail herself of any of these. The only proof of compliance with this plan requirement was a letter from a "High Priestess Art of Magic Coven" stating that she was assisting Mother in dealing with Mother's "medical needs through home remedies" including meditation, ginseng tea and peppermint tea. The proof is clear and convincing that Mother substantially failed to comply with the permanency plan requirements that she explore other avenues for having her medical and mental health needs met.
The High Priestess also was "counseling" Mother with respect to Mother's "anger problems." They were "implementing breathing and counting to ten to deal with [the problems]."
With respect to the requirement that Mother gain new skills to effectively parent the children, we are of the opinion that the finding of the court that Mother did not comply with the permanency plan is not supported by the evidence. The July 2005 permanency plan specified eight actions to be taken by Mother in pursuit of this outcome; the January 2006 plan reported that four of the actions were complete, two were on-going, one would begin when the children were returned to the home and that Mother had improved in her interactions and discipline with the children. The trial court in this instance, however, focused on the desired outcome in its analysis. The court's only finding in support of its determination in this regard was that DCS funded Continuity of Care in-home services for one month, after which time the service was dropped; the court opined that "that one service alone could not have aided the parents to complete their plans" and that "the Court does not think that the one service would have improved the majority of the substantial noncompliance problem." As noted by this court in Tennessee Dept. Of Children's Services v. P.M.T. et al., 2006 WL 2644373 at *8 (Tenn.Ct.App. 2006), Tenn. Code Ann. § 36-1-113(g)(2) requires substantial compliance with the permanency plan's responsibilities, not its desired outcomes. The proof is not clear and convincing that Mother did not fulfill her responsibilities in gaining new parenting skills; consequently, we modify the order of the Juvenile Court accordingly.
The trial court's determination that Mother had not substantially complied with the plan requirement that she maintain sufficient finances to meet the families needs was based on the court's finding that Mother had not maintained stable employment, which, in turn, was caused by her failure to get appropriate medical and mental health treatment. A requirement of the plan was that Mother "will have sufficient finances for their family budget through employment or other legal means." The evidence was clear and convincing that Mother had not complied with the permanency plan requirements in this regard.
The permanency plan required that Mother comply with the terms of her probation. Mother testified that, after the children were placed in DCS custody, she was arrested for violation of probation imposed after conviction of an offense which occurred prior to the children being placed in DCS custody. Consequently, the trial court's finding that Mother had not resolved all outstanding criminal charges is supported by clear and convincing proof.
The court found that Mother had completed anger management counseling through her probation and had completed the parenting assessment.
The record indicates that, while Mother complied in some respects with the parental responsibilities outlined in the permanency plans, she failed to substantially comply with other requirements. In order to sustain noncompliance with a permanency plan as a ground for termination of parental rights, the court must find that "the parent's noncompliance was substantial in light of the degree of noncompliance and the importance of the particular requirement that has not been met." In re B.D., R.M.T. V.F.T., 2009 WL 528922 (Tenn.Ct.App. Mar. 2, 2009) (Perm. App. Den. May 18, 2009). The trial court found, and we agree, that the areas in which Mother did not comply were important in light of the particular facts and circumstances of the case and that Mother's noncompliance was substantial in light of the relevant facts. Consequently, we affirm the trial court's termination of Mother's parental rights on the ground of substantial noncompliance with the permanency plans.
2. Father
The requirements of the permanency plan with respect to Father, as aforesaid, largely mirrored those of Mother and the majority of the court's discussion of the issues of noncompliance with the permanency plans centered on Mother. With respect to the requirement that Father maintain a clean, safe and stable home, the court found that, while Father was "a hard working man," "he is basically just the one that goes to work and comes home," that he "does work a lot of hours, and he has had his job for many years," that he didn't care about "anything domestic" and that Father felt "his role was to bring home the money, and [Mother's] was to care for the house." Other than the requirement that Mother and Father maintain a clean, safe and stable home, the court did not discuss Father's separate responsibilities.
The actions set forth in the plan for Father to follow relative to maintaining a clean home required him to cooperate with Homemaker Services, to take daily action to insure that the home was free of safety hazards and to have sufficient space for the family. As noted above, the court's determination that Mother and Father had not substantially complied with this requirement of the permanency plan was based in substantial part on the court's disbelief of their testimony and the proof that they had only five visits from Homemaker Services over a three month period. As we have noted, the court's finding was supported by clear and convincing proof.
There is no proof in the record that Father did not substantially comply with his other responsibilities under the parenting plan with the exception of the requirement that he not have any further founded CPS cases. At the time of preparation of the January 2006 plan, the September 2005 investigation had been completed and Father indicated. The January 2006 plan was somewhat inconsistent in discussing Father's requirements in that, while it noted in one place that "[t]he investigation is completed and [Father] was indicated. In-home counseling is already occurring," another section of the plan stated that Father "will cooperate with law enforcement to resolve the present investigation." In light of this conflicting evidence, we cannot conclude that this ground for termination found by the trial court is supported by clear and convincing proof and so modify the trial court's order.
The nature of the in-home counseling was not specified.
C. Persistence of conditions
The trial court also found as a ground for termination pursuant to Tenn. Code Ann. § 36-1-113(g)(3) that the conditions which led to the removal of the children persisted. In making this determination, the court reviewed the extensive history of the parents' involvement with DCS, the reasons for and circumstances of each removal of the children from the home, and the efforts made by each parent to remedy the conditions. We have likewise reviewed the evidence and the record fully supports the finding that the conditions which led to the removal of the children persisted.
D. Child Abuse
Tenn. Code Ann. § 36-1-113(g)(4) allows parental rights to be terminated where:
The parent . . . has been found to have committed severe child abuse as defined in § 37-1-102, under any prior order of the court or is found by the court hearing the petition to terminate parental rights . . . to have committed severe child abuse against the child who is the subject of the petition or against any sibling or half-sibling of such child. . . .
"Severe child abuse" is defined in part as:
This is the definition relied upon by DCS in support of the trial court's action.
(B) Specific brutality, abuse or neglect towards a child that in the opinion of qualified experts has caused or will reasonable be expected to produce severe psychosis, severe neurotic disorder, severe depression, severe developmental delay or retardation, or severe impairment of the child's ability to function adequately in the child's environment, and the knowing failure to protect a child from such conduct.
Tenn. Code Ann. § 37-1-102(b)(21)(B).
The court found that two of the children suffered from severe child abuse from Father's torturing, killing and drinking the blood of gerbils in the children's presence. The court also found that Mother failed to protect the children from the experience. In light of the fact, however, that the court did not make specific findings that Mother knew of Father's activities and that she failed to protect the children from witnessing the "gerbil sacrifices," DCS does not pursue on appeal severe child abuse as a ground supporting the termination of Mother's parental rights. We agree that there is no proof that Mother knew that the children were being exposed to Father's activities and failed to protect them from such exposure; consequently, we modify the order of the trial court to eliminate the finding of child abuse as a ground for the termination of Mother's parental rights.
The trial court relied primarily on two bases in finding the ground of severe abuse to have been clearly and convincingly established: the fact that Mother and Father pled guilty to child abuse and neglect and the professional opinion of Dr. Trey Monroe, a psychologist who interviewed the children on several occasions. In resolving the conflicts in the testimony of Mother and Father with that of Dr. Monroe, the trial court again noted the lack of credibility of Mother and Father and stated that the court did not believe that the children saw the activity in a movie, as they contended. The court believed that the accounts of the gerbil sacrifices as related to Dr. Monroe by the children was believable and, coupled with Dr. Monroe's expert opinions, constituted clear and convincing proof of abuse. We have reviewed the extensive testimony of Dr. Monroe, as well as his deposition and find that the evidence clearly and convincingly supports the trial court's finding that Father subjected two of the children to severe child abuse, as defined by the applicable statute.
In light of our reversal of the finding of child abuse relative to Mother and our affirmance of the finding on the part of Father, it is not necessary for us to decide whether Mother and Father's plea of guilty to child abuse and neglect charges was a sufficient basis upon which to sustain a finding of severe child abuse within the meaning of Tenn. Code Ann. § 36-1-113(g)(4), as applied to the facts of this case.
E. Best Interest of the Children
Once a ground for termination has been proven by clear and convincing evidence, the trial court must then determine whether it is the best interest of the child for the parent's rights to be terminated, again using the clear and convincing evidence standard. The legislature has set out a list of factors for the courts to follow in determining the child's best interest at Tenn. Code Ann. § 36-1-113(i). The list of factors set forth in the statute is not exhaustive, and the statute does not require every factor to appear before a court can find that termination is in a child's best interest. See In re S.L.A., 223 S.W.3d 295, 301 (Tenn.Ct.App. 2006) (citing State of Tennessee Dep't of Children's Servs. v. T.S.W., 2002 WL 970434 at *3 (Tenn.Ct.App. May 10, 2002); In re I.C.G., 2006 WL 3077510 at *4 (Tenn.Ct.App. Oct. 31, 2006)).
The trial court determined that termination of parental rights was in the best interest of the children. This finding, set forth in exhaustive detail in the trial court's order, is fully supported by the evidence and record.
III. Conclusion
For the reasons set forth above, the decision of the Juvenile Court is AFFIRMED as modified. Costs are assessed against Mother and Father, equally, for which execution may issue if necessary.