                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                  April 19, 2010 Session

       IN RE: COREY N.A., KAYLA M.A, and ROBERT L.A.
TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v. R.L.A., et al.

                  Appeal from the Circuit Court for Grainger County
                     No. 8308-II     Hon. Richard Vance, Judge


                No. E2009-01293-COA-R3-PT - FILED JUNE 21, 2010




The Department of Children's Services petitioned the Court to terminate the parental rights
of both parents to the minor children. Following trial, the Trial Judge ruled that grounds to
terminate the parental rights by clear and convincing evidence existed, as well as clear and
convincing evidence that it was in the children's best interest to terminate the parental rights
of the parents. The parents have appealed and we affirm the Judgment of the Trial Court.


  Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.


H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., J., and. D. M ICHAEL S WINEY, J., joined.


Agnes Trujillo, Rutledge, Tennessee, for the appellants, L.R.A., and R.L.A.

Robert E. Cooper, Jr., Attorney General and Reporter, and Nicholas G. Barca, Assistant
Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, Department
of Children's Services.


                                          OPINION


       The Department of Children's Services filed Petitions to Terminate the Parental Rights
of L. and R.A.,who are the parents of Corey N.A., Kayla M. and Robert L.A. The Petitions
allege the grounds of abandonment for failure to provide a suitable home for the children,
substantial noncompliance with the permanency plans, and persistent conditions. The
Petition against the mother alleges that she failed to pay the ordered child support, and was
guilty of severe child abuse, and the father’s Petition alleges that he failed to protect the
children from abuse after they advised him as to what was happening. The Trial Court
appointed a guardian ad litem for the children and appointed counsel for the parents.

       At trial, the first witness was the child, Corey A., who was 14 years old at the time.
She testified that she did not want to go home because she was scared the same thing would
happen that had been happening before, and that she wanted to be adopted because she
wanted a life, and didn’t want to be in foster care until she was 18.

        She testified that she had been in custody for three years at the time of the trial, and
that when she lived with her parents, the conditions were horrible, and that she was hit at
times “for not doing stuff”, and she had been struck with a fist, or a belt, or sometimes her
mother had hit her with a baseball bat. She testified that she was the oldest of the minor
children, and that her mother would beat her when her father wasn’t around, and she tried to
tell her father, but he refused to believe her.

        Numerous witnesses testified, including the mother and father, and at the conclusion
of the evidentiary hearing, the Trial Court entered an Order terminating the parental rights,
finding that grounds for termination were proven by clear and convincing evidence, and the
parents filed a Notice of Appeal.

        The case was remanded to the Trial Court for specific findings, and the Court entered
an Amended Termination of Parental Rights Order and Final Decree of Guardianship, which
states that the children were placed in DCS custody by emergency removal on January 25,
2006, and had been in foster care continuously since that date. The Court found the children
were taken into custody (for the second time) due to allegations of abuse of Corey by Kayla,
and there were marks and bruises on Corey's body. The Court found the mother had pled
guilty to one count of felony child abuse and two counts of misdemeanor child abuse, and
that the father was present during those proceedings.

      The Court found that Corey testified graphically, describing numerous instances of
abuse by the mother, including the mother pulling a gun on her and mother telling her she
would throw her in the river before she would see her go back to foster care. The Court found
Corey to be credible and truthful, and that her testimony was corroborated by allegations
made by her sister, and the observations of the investigator, a family service worker, and by
the mother’s guilty plea. The Court found the mother and father denied the abuse at trial,
however, calling the children “liars”. The Court found that neither parent paid any support

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during 2007.

        The Court found the children were doing well and thriving in foster care, and that
Corey said she was afraid to go home and wanted to be adopted. The Court held that
abandonment was proven by clear and convincing evidence due to the failure to pay child
support, and despite the mother’s testimony that her tax return was intercepted, she made no
payments at all in 2007, but was gainfully employed at that time and had a court-ordered
support obligation. The Court found that there was also clear and convincing evidence of
failure to provide a suitable home, failure to comply with the permanency plans, and
persistent conditions, because the parents failed to acknowledge that the abuse occurred and
testified that they would not do anything differently. The Court concluded that the mother
and father were guilty of severe child abuse.

        Regarding the best interest analysis, the Court found that all of the factors listed in the
statute gave the court “pause”, and that despite reasonable efforts by DCS, both parents had
failed to change the conditions, and the children had been in foster care for three years and
should not continue to “languish” there. The Court found that termination was in the
children’s best interests.

       The issues on appeal are:

       1.      Whether DCS made reasonable efforts to reunify this family?

       2.      Whether DCS established by clear and convincing evidence that the mother
               willfully failed to pay support?

       3.      Whether the Court erred in finding persistence of conditions as to both parents
               in the absence of a prior adjudicatory order finding the children to be
               dependent and neglected?

       4.      Whether the Court erred in finding that the mother committed severe abuse
               based solely on her guilty pleas?

       5.      Whether the Court erred in finding that the parents failed to provide a suitable
               home due to their failure to acknowledge that abuse occurred?

       6.      Whether the Court erred in finding substantial non-compliance with the
               permanency plans where the parents completed all required actions?

       7.      Whether the Court erred in considering hearsay of Kayla, who was thirteen

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              years old at the time of trial?

       As this Court has previously explained:

       This Court reviews the decisions of a trial court sitting without a jury de novo upon
       the record. The trial court's conclusions of law are reviewed under a purely de novo
       standard with no presumption of correctness. We review credibility determinations
       made by the trial court with great deference.

       Tennessee Code Annotated Section 36-1-113 governs the termination of parental
       rights and provides that the termination of parental rights must be based upon a
       finding by the court by clear and convincing evidence that the grounds for termination
       of parental or guardianship rights have been established and that termination of the
       parent's rights is in the best interests of the child.

       Accordingly, to sever the parent-child relationship, a court must insure that clear and
       convincing evidence supports such a drastic measure. The standard of clear and
       convincing evidence has been defined as “evidence in which there is no serious or
       substantial doubt about the correctness of the conclusions drawn from the evidence.”
       Thus, while this Court reviews individual factual findings under the preponderance
       standard, we consider the combined weight of those established facts to determine
       whether they clearly and convincingly support the elements required for terminating
       parental rights.

                                                ***

       Once the Court finds that clear and convincing evidence proves the existence of one
       statutory ground, the inquiry then shifts to the child's best interest as set forth in
       Tenn.Code Ann. § 36-1-113(i). If the Court concludes that termination is in the child's
       best interest, then the entry of a termination order is appropriate. Any one of the nine
       statutory grounds for termination of parental rights listed in Tenn.Code Ann. §
       36-1-113(g) is sufficient to support an order terminating parental rights where
       termination is in the best interest of the child.

State, Dept. of Children's Services v. Walsh, 2009 WL 3806140 (Tenn. Ct. App. Nov. 13,
2009)(citations omitted).

       The parents allege that DCS failed to use reasonable efforts to assist them in achieving
reunification, as required by the statute. The Trial Court found that DCS did utilize
reasonable efforts, and in a termination proceeding, this issue is best addressed within the

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framework of Tenn. Code Ann. § 36-1-113(i)(2), which is the best interest analysis. See In
re A.W., 114 S.W.3d 541, 545 (Tenn. Ct. App.2003); State Dep't of Children's Servs. v.
Malone, 1998 WL 46461 (Tenn. Ct. App. Feb.5, 1998). Within this framework, whether DCS
utilized reasonable efforts is only one of many factors the court must consider in the best
interests analysis. Tenn. Code Ann. § 36-1-113(i).

       There were five grounds for termination alleged against the mother: 1) abandonment
by failure to support, 2) abandonment by failure to provide a suitable home, 3) substantial
noncompliance with the permanency plans, 4) persistent conditions, and 5) severe child
abuse. The Petition filed against the father alleged ground 2nd , 3rd , and 4 th charged against
the mother.

        Regarding the mother’s failure to support, DCS was required to show the mother
willfully failed to support the children for a period of four consecutive months immediately
preceding the filing of the petition. The mother admitted there was a support order and that
she had not made any payments in 2007, but she explained that DCS had intercepted a tax
return that overpaid her support obligation, and that a representative of DCS told her that she
didn’t have to make any payments until January 2008. She further testified that she was
unemployed in 2007.

      The Trial Court found the mother had willfully failed to support the children, and thus
had abandoned them pursuant to the statute. Her testimony, however, was that she was told
she did not have to make any payments due to the tax intercept, and under these
circumstances her lack of support payments would not rise to the requisite level of willful
non-support. This ground is not established by clear and convincing evidence.

        DCS also alleged that both the mother and father abandoned the children by failing
to provide a suitable home within a reasonable time after the children were brought into
custody, and that the conditions leading to removal still persisted. Tenn. Code Ann. §36-1-
102(1)(A)(ii) states that if a child “has been removed from the home of the parent(s) or
guardian(s) as the result of a petition filed in the juvenile court in which the child was found
to be a dependent and neglected child” and the child was placed in DCS custody, and the
court finds that DCS has made reasonable efforts to assist the parents in establishing a
suitable home but the parents have not made reasonable efforts to establish same, and the
parents 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”, then
this is also proof of abandonment sufficient to terminate. The statute specifically and
expressly requires that the juvenile court must have adjudicated the child(ren) to be
dependent and neglected.



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        Similarly, Tenn. Code Ann. §36-1-113(g)(3) states that if a child has been removed
from the home by order of a court for a period of six months, and the conditions which led
to 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”, and there is little likelihood that the
conditions will be remedied at an early date, and continuation of the parent/child relationship
greatly diminishes the child’s chances of early integration into a stable home, then this will
be sufficient grounds for termination.

       See, In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App.2005).

       The only order entered by the Juvenile Court in this case was a protective order,
removing the children from respondents’ custody based on probable cause to believe the
children were dependent and neglected. While a petition to declare the children dependent
and neglected was filed, the children were never adjudicated dependent and neglected in
accordance with In re Audrey S. Because there was never an actual adjudicatory hearing held
nor a judicial finding of dependency, neglect or abuse, based on clear and convincing
evidence, persistence of conditions under Tenn.Code Ann. § 36-1-113(g) cannot be a ground
for termination of parental rights.

       The Trial Court erred in relying on Tenn.Code Ann. § 36-1-113(g) as a ground for
termination. Similarly, Tenn. Code Ann. §36-1-102(1)(A)(ii) also requires an adjudication
of dependency and neglect by the Juvenile Court before abandonment for failure to provide
a suitable home can be shown.

       Regarding the ground of substantial noncompliance with the permanency plans,
however, the Trial Court found that both parents failed to substantially comply with the
plans, as the first requirement was that the parents would be protective of the children and
would provide a safe home, free from abuse. The Court found the parents had not done
anything to meet this requirement, as they both continued to deny that the abuse even
occurred, and called the children liars. The Court found that the parents stated that they
would not do anything differently if the children were returned to them.

        The evidence shows the Trial Court’s findings on this issue were correct, as the
parents continued to deny that there was any problem whatsoever, and stated unequivocally
that all the children were lying about the abuse. Neither parent could explain the marks
witnessed on the children nor why the children’s stories were consistent. The DCS workers
stated that the children never changed or recanted their stories, and the Trial Court found
Corey to be a very credible and truthful witness.



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       This finding is further bolstered by the fact that the DCS workers testified regarding
the parents’ behavior toward the children during visits, stating that the parents were very
angry and wanted to confront the children, and then when told they could not do so, simply
ignored the girls or chose not to visit with them. The DCS workers testified that the parents
were abusive toward the children during visits and that the children seemed genuinely afraid
of the parents. One worker testified there were “issues with every visit”. She testified that
the parents were often late, that there was obvious animosity, and the parents were generally
difficult and uncooperative. The workers also testified that the visits were eventually
terminated because the parents were upsetting the children, telling them that if they were
adopted they would likely be separated.

       The father refused to believe there was any abuse by the mother, despite her guilty
plea, the marks and bruises on the children, and the children’s testimony. The father
admitted that he was told by DCS that the children could not be safely returned to him if the
mother was there, but testified that he would not leave her because nothing had happened and
it would be like throwing her out for no good reason. There was no proof the father had ever
received appropriate counseling. The evidence establishes the father did not provide a safe,
stable home for the children free of abuse, and did not address the reports of his failure to
protect the children from emotional and physical abuse. As such, the evidence also supports
the Trial Court’s finding that the father had not substantially complied with the plan.

        Finally, the Trial Court found that severe child abuse had occurred, and this was an
additional ground for termination. We affirm the Trial Court on this issue, because severe
child abuse can be shown if there is “knowing exposure of a child to or knowing failure to
protect a child from abuse that is likely to cause great bodily harm or death”. Tenn. Code
Ann. §37-1-102. In this case, Corey testified that she was beaten with fists, belts, and a
baseball bat, and that she was threatened with death before she would be allowed to be
removed again. With the mother having exposed her to such abuse and the father having
failed to protect the child, the ground of severe child abuse was clearly established.

        Once any ground has been established by clear and convincing evidence, the Court
must determine that termination is in the children’s best interest. Tenn. Code Ann. §36-1-
113(i). The Court found that the factors in Tenn. Code Ann. §36-1-113(i) gave the Court
pause, but clearly the most significant are those dealing with the safety of the children if
returned to the parents, and whether there had been any change by the parents such as to
make it safe for the children to return home. In this case, clearly the children’s safety would
be at risk if returned to the parents. Also, while the parents were observed to have a bond
with the children, the children also appeared frightened of the parents, specifically requesting
to not be returned home or to not be left alone in a room with the parents. The children were
doing well in foster care and seemed happy, so a change of caretakers from the foster

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placement would likely affect them in a negative manner. The factors listed in the statute
clearly establish that termination was in the children’s best interests.

       We affirm the Trial Court's finding of clear and convincing grounds to terminate the
parental rights, and that it is in the children's best interest for termination.

      Finally, the parents objected to the Trial Court’s consideration of statements by Kayla
because she did not testify, and her statements are thus hearsay which was brought into
evidence through other witnesses.

       The parents admit, however, that there is a hearsay exception for victims of child
abuse, but state that this would not apply to Kayla because she was over the age of 13 at the
time of trial. See Tenn. R. Evid. 803(25). Their brief admits, however, that while she did
object initially, she later told the court that Kayla was not yet 13. DCS argues that she thus
waived this issue. In the trial transcript, the parents’ attorney stated that “Kayla lacks a few
months to be able to testify” and that specific quotes that the caseworker recorded which
were made by Kayla and Robert were “probably admissible”. Thus, the appellant cannot now
be heard to complain that Kayla’s statements should not have been admitted.

       We affirm the Judgment of the Trial Court and remand, with the cost of the appeal
assessed to the parents, L. and R.A.




                                                    _________________________________
                                                    HERSCHEL PICKENS FRANKS, P.J.




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