                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                           Assigned on Briefs January 10, 2001

         STATE OF TENNESSEE, DEPARTMENT OF CHILDREN’S
                       SERVICES v. T.M.L.

                     Appeal from the Juvenile Court for Davidson County
                       No. 9519-18383     Betty Adams Green, Judge



                     No. M2000-01785-COA-R3-JV - Filed April 26, 2001


The juvenile court granted a petition to terminate parental rights to three of the children of a
Nashville woman. On appeal, the mother challenges the termination in regard to her oldest child
only, on the ground that it is not in the child’s best interest to be permanently separated from her.
We affirm the trial court.

           Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
                                 Affirmed and Remanded

BEN H. CANTRELL , P.J., M.S., delivered the opinion of the court, in which WILLIAM C. KOCH , JR.
and WILLIAM B. CAIN , JJ., joined.

Thomas H. Miller, Franklin, Tennessee, for the appellant T.M.L.

Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond, Assistant Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                            I.
                                A MOTHER AND HER CHILDREN

        T.M.L. is the mother of eight children, all born out of wedlock to at least four different
fathers. The subject of this appeal is L.D.L., Ms. L.’s daughter and oldest child, who was born on
July 9, 1987. When the mother found that she was unable to take care of the needs of her younger
children, she relied heavily upon the assistance of L.D.L., as well as upon numerous services
provided over the years by the Department of Children’s Services.1

        On July 3, 1995, the Department filed a petition for temporary custody and emergency
removal of the six children that were in Ms. L.’s custody at the time, on the ground that the children
were dependent and neglected. The petition stated that Ms. L. and her children had been staying in
a large and livable home with distant relatives, but that for reasons of her own, Ms. L. had decided
to leave the home with her children, even though she had no place to go.

        The court entered an emergency protective order placing the children in the temporary care
and custody of the Department. A preliminary hearing was conducted on July 10. Ms. L. was
present at the hearing, as was the Guardian ad Litem for the children, Ms. L.’s attorney, four social
workers from the Department of Human Services, the Department’s attorney, Ms. L.’s mother, both
the paternal grandmother and the aunt of Ms. L.’s oldest son, M.L., Ms. L.’s godmother, and the
relatives Ms. L. had been staying with before the petition was filed.

        The court found that the Department had acted appropriately in removing the children,
because the lack of housing posed an immediate threat to their health and safety. However, the court
also found that in the interim Ms. L. had secured housing, and since she felt that she was capable of
handling two of her children, it returned custody of K.L. and R.L. to her, with custody of the
remaining children to remain with the Department pending a final hearing. In addition, the court
ordered the Department to arrange for a home interventionist to work with Ms. L., for a
psychological exam to be conducted on her, and that she become involved in the Regional
Intervention Program (RIP).

         On October 26, 1995, the court conducted a trial on the petition for custody. Many of the
same people who had attended the preliminary hearing were present, as well as foster parents for
three of the children, and the children’s pediatrician. The court found the youngest child (who was
less than a year old at the time) to be neglected due to loss of weight and a period of untreated
illness, but stated that “this neglect is due to a lack of knowledge and poor judgment on the part of
the mother rather than any attempt to harm him.” The court also found the other five children to be
either dependent or dependent and neglected, but returned legal custody of L.D.L. to Ms. L. The
Department was ordered to provide additional assistance to Ms. L., including the creation of a Plan
of Care. A detailed Plan of Care, signed by Ms. L., is contained in the record.

        During the next two years, the Department worked with the family, and gradually returned
the children to Ms. L. However, she was still unable to take care of them. She placed her two
youngest children with a family friend, two others with their father, and another with a foster mother,
placements that were all confirmed by custody orders.



         1
         The facts of this case occurred both before and after the Department of Children’s Services was split off from
the Department of Human Services. For convenience and simplicity we will refer to both as “the Department.”

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        By August of 1998, Ms. L. was living in the home of her aunt with three of her children,
L.D.L., M.L., and R.L., her next oldest son. With the agreement of the Department, she filed a
petition on August 3, 1998, to be relieved of custody of all three children, stating that she no longer
could control them, and that her aunt could no longer house all of them. The petition listed Ms. L.
as homeless and unemployed. The court granted Ms. L.’s petition, finding that the children were
neglected and dependent, and since no one was willing to assume legal responsibility for them, their
custody was transferred to the State.

                                            II.
                               TERMINATION PROCEEDINGS BEGIN

        On July 12, 1999, the Department filed a petition to terminate parental rights to L.D.L., M.L.,
and R.L. In addition to Ms. L., the petition named four men who Ms. L. said were or could be the
father of these children. The two men who Ms. L. named as possible fathers to L.D.L. could not be
found after a diligent search, and had to be served by publication. One of those men was also named
as a possible father to R.L. The other man named as a possible father to R.L. admitted that he had
fathered two other children by Ms. L., and in fact he had custody of those children and supported
them. But he never admitted paternity of R.L., and he signed a waiver of interest as to that child.

       E.C. was named by Ms. L as the father of M.L. In order to testify at the termination hearing,
he had to be transported from prison, where he was serving a ten year sentence for aggravated
burglary. E.C. acknowledged M.L. as his son, and expressed a desire for custody. Blood tests had
been taken on E.C. and M.L. to establish paternity, but the results of M.L.’s test had not yet been
returned. E.C. admitted that he had no contact with the child after 1995.

       The trial began on February 29, 2000. Ms. L. testified that she was pregnant by a new man
she was living with. She said that the two of them had been living in a motel for two weeks, but she
had been homeless for almost two years before that. She also testified that she had never been
employed, but that she was capable of working, and not disabled.

       Ms. L. stated that she was not contesting the termination petition as to M.L. and R.L.,
because they both had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), and
were very hard for her to deal with. By this time, the two boys were living in therapeutic group
homes, and Ms. L. had very little contact with them.

        The mother did not agree, however, that her rights to her oldest daughter should be
terminated, because she believed that the twelve-year old did not have any behavior problems that
would prevent Ms. L. from parenting her child effectively. L.D.L. had been placed in a group home
at the Tennessee Preparatory School (TPS), and Ms. L. testified that for the past month, she and her
daughter had talked on the telephone every night for about thirty minutes each time. Two social
workers who were familiar with them testified that Ms. L. and her daughter were on friendly terms,
but that their connection was more like a friendship between peers than like a mother-daughter
relationship.


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         The evidence also showed that Ms. L. had only visited L.D.L. once in the four months before
the Petition to Terminate Parental Rights was filed, and only once between the filing of the petition
and the hearing, even though the Plan of Care included a provision for regular visitation. She also
failed to comply with the other responsibilities established by the Plan of Care, including the use of
birth control, the completion of counseling for a panic disorder, obtaining a referral to a weight loss
clinic, and earning money to get her own apartment.

        Ms. L. complained that her social worker had given up on her, but she admitted that she had
received numerous services from the Department over the years including payment of rent, provision
of food orders, cleaning supplies, nonprescription drugs, diapers, bedding, furniture, a washer and
dryer, bus passes, and homemaker and cleaning services.

       At the end of a full day of testimony, the trial judge declared that she would take the case
under advisement, pending the results of the paternity testing on M.L., and that if the test proved that
E.C. was the father, he would be given the opportunity to present other evidence in opposition to
termination of his parental rights. If the tests proved otherwise, then the judge would hear closing
arguments and issue her ruling.

                                           III.
                            THE TERMINATION HEARING CONTINUES

        The hearing recommenced on June 5, 2000. Ms. L. was the only witness to testify, but
closing arguments were made on behalf of all the interested parties. Although E.C.’s attorney did
not present any further proof, he argued that his client’s parental rights should not be terminated
because he was not included in the Plan of Care, and was never offered any of the services that the
Department provided to Ms. L.

        Ms. L. testified that the due date for her pregnancy was July 31. She was no longer living
with the father of her child, who had relapsed into crack cocaine addiction. She was still “seeing
him,” however, and had refused to enter a four week counseling program because one of the
stipulations of the program was that she not see him for a month.

        Ms. L. was staying at the Family Life Center, and waiting for the Metro Housing Authority
to provide her with an apartment. She had enrolled in a different counseling program (although so
far she had only attended two of the four sessions that had been scheduled for her) and was attending
a four week program sponsored by the Department, called the Fresh Start Program. She said that
she planned to get her GED and job training.

       Ms. L. said that she still talked on the phone with L.D.L. every night. However, the proof
showed that between February 5, 2000 and June 5, 2000, Ms. L. had visited her daughter only twice,
and that on one of those occasions the child had been brought to her.

       At the conclusion of the closing arguments, the trial court ruled that the Department had
proven the grounds for termination of parental rights by clear and convincing evidence, specifically,

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the grounds stated in Tenn. Code. Ann. § 36-113-(g)(3)(A). The judge stated that she believed that
Ms. L. loved her children, but that she did not express her love by assuming the responsibilities of
parenthood, and therefore that such termination was in the best interest of all the children. In its
Final Decree of Guardianship, the court terminated the parental rights of Ms. L. and of four named
and any unknown fathers of L.D.L., M.L. and R.L. Ms. L. has appealed the judge’s ruling in regard
to L.D.L. only. E.C. did not appeal the termination of his parental rights.

                                            IV.
                               THE QUESTION OF BEST INTERESTS

         The rights of parents to the custody and upbringing of their own children is a fundamental
liberty that is protected by both the United States and Tennessee Constitutions. In Re Swanson, 2
S.W.3d 180 (Tenn. 1999); Stanley v. Illinois, 405 U.S. 645 (1972); Meyer v. Nebraska, 262 U.S. 390
(1923). Yet a parent’s rights are not absolute, but may be terminated on statutory grounds such as
abandonment or abuse, when required to protect the best interests of the children.

       Tenn. Code. Ann. § 36-1-113 governs the termination of parental rights in Tennessee. Under
Section (c) of the statute, termination of parental or guardianship rights must be based upon:

               (1) A finding by the court by clear and convincing evidence that the grounds
       for termination or parental or guardianship rights have been established; and

               (2) That termination of the parent's or guardian's rights is in the best interests
       of the child.

       Section (g) of the same statute states that termination of parental or guardianship rights may
be based upon any of the following grounds:

              (1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
       occurred;

               (2) There has been substantial noncompliance by the parent or guardian with
       the statement of responsibilities in a permanency plan or a plan of care pursuant to
       the provisions of title 37, chapter 2, part 4;

              (3)(A) The child has been removed from the home of the parent or guardian
       by order of a court for a period of six (6) months and:

                (i) The conditions which led to the child's removal or other conditions which
       in all reasonable probability would cause the child to be subjected to further abuse
       or neglect and which, therefore, prevent the child's safe return to the care of the
       parent(s) or guardian(s), still persist;



                                                  -5-
               (ii) There is little likelihood that these conditions will be remedied at an early
       date so that the child can be safely returned to the parent(s) or guardian(s) in the near
       future; and

              (iii) The continuation of the parent or guardian and child relationship greatly
       diminishes the child's chances of early integration into a safe, stable and permanent
       home.

        The appellant does not dispute that the grounds for termination of her parental rights have
been established by clear and convincing evidence. Her sole argument on appeal is that there was
scant evidence that it would be in the best interest of L.D.L. to have the relationship with her mother
terminated.

        The appellant infers that her nightly telephone conversations with her daughter provide
evidence of a valuable relationship between them, and argues that there was no proof that eventual
reunification between the mother and daughter would be detrimental to L.D.L.

        It appears to us, however, that the trial court was correct in finding that Ms. L. had proven
herself incapable of providing the structure that the best interest of a child or teenager requires, and
that continuation of the parental relationship would likely interfere with the possibility of
establishing or maintaining an alternative structure for L.D.L.’s benefit.

        The trial court noted that L.D.L. had been in the custody of the Department for a period of
over two years prior to the entry of the Final Decree of Guardianship, and that the Department made
heroic efforts to help Ms. L. acquire the skills and knowledge that would enable her to be reunited
with her children. Despite those efforts, Ms. L. has made virtually no progress towards the goals
stated in her Plan of Care. The record reveals that while Ms. L. was perfectly willing to accept the
material help offered by the Department, she simply refused to make any effort of her own to
improve her situation or that of her children.

         We would further note that Ms. L.’s continuing relationship with the father of her unborn
child makes any reunification with L.D.L. problematic at the very least. During the hearing of
February 29, Ms. L. was asked how she was going to take care of the child that she was carrying.
She replied that “the father’s going to help take care of us.” She also testified that the father had
been convicted of assaulting her when she was three weeks pregnant, and that he was addicted to
crack cocaine. She did not testify as to any willingness on his part to care for L.D.L. We must thus
conclude that contrary to appellant’s argument, the record shows by clear and convincing evidence
that it would be in the child’s best interest to terminate the parental rights of Ms. L. As long as the
parent-child relationship continues, L.D.L. has little chance of becoming part of a safe, stable, and
permanent home. We affirm the trial court.




                                                  -6-
                                              V.

       The decree of the trial court is affirmed. Remand this cause to the Juvenile Court of
Davidson County for further proceedings consistent with this opinion. Tax the costs on appeal to
the appellant, T.M.L.




                                            _________________________________________
                                            BEN H. CANTRELL, PRESIDING JUDGE, M.S.




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