BRENDA FARMER,                            )
                                          )
              Plaintiff/Appellant,        )
                                          )
vs.                                       )
                                          )
DEPT. OF CHILDREN SERVICES,               )
                                          )
              Defendant/Appellee,         )
                                          )     Appeal No. 01A01-9610-JV-00485
                                          )
THERESA FARMER/ESTES,                     )

              Plaintiff/Appellant,
                                          )
                                          )
                                          )
                                                          FILED
vs.                                       )               December 30, 1997
                                          )
DEPT. OF CHILDREN SERVICES,               )               Cecil W. Crowson
                                          )              Appellate Court Clerk
              Defendant/Appellee.         )


                  IN THE COURT OF APPEALS OF TENNESSEE
                      MIDDLE SECTION, AT NASHVILLE


          APPEAL FROM THE DAVIDSON COUNTY JUVENILE COURT
                      AT NASHVILLE, TENNESSEE

                       HONORABLE ANDREW J. SHOOKOFF

Stacy L. Miller,
1808 West End Avenue, Suite 701
Nashville, TN. 37203
ATTORN EY FOR PLAINT IFF/APPELLANT (The resa Carol Farmer-E stes)


Kathleen G. Mo rris,
P.O. Box 128091
Nashville, TN. 37212
ATTORNEY FOR PLAINTIFF/APPELLANT (Brenda Farmer)


John Knox Walkup
Attorney General and Reporter

Douglas Earl Dimond
Assistant Attorney General
General Civil Division
2nd Floor Cordell Hu ll Bldg.
425 Fifth Avenue, North,
Nashville, TN. 37243-0499
ATTORNEY FOR DEFENDANT/APPELLEE


                            AFFIRMED AND REMANDED


                                WILLIAM B. CAIN, JUDGE
CONCURS:

HENRY F. TODD
PRESIDING JUDGE, MIDDLE SECTION

BEN H. CANTRELL, JUDGE
                    IN THE COURT OF APPEALS OF TENNESSEE
                        MIDDLE SECTION, AT NASHVILLE


BRENDA FARMER,                        )
                                               )
               Plaintiff/Appellant,            )
                                               )
vs.                                            )     Appeal No. 01A01-9610-JV-00485
                                               )
DEPT. OF CHILDREN SERVICES,                    )
                                               )
               Defendant/Appellee,             )
                                               )
                                               )
THERESA FARMER/ESTES,                          )
                                               )
               Plaintiff/Appellant,            )
                                               )
vs.                                            )
                                               )
DEPT. OF CHILDREN SERVICES,                    )
                                               )
               Defendant/Appellee.             )



                                          O P I N IO N


       These consolidated cases represent two separate family units running an

essentially parallel co urse in the Juvenile C ourt of Davidson C ounty.



       Theresa Farmer Estes is the biological mother of three children to-wit: Raymond

Ward Farmer, date of birth, 12-22-84; Amanda Marie Estes, date of birth, October 3,

1988 and Thomas Dwayne Estes, date of birth, 12-12-90.



       Brenda Farmer is the wife of Walter Tom (Tommy) Farmer and the biological

mother of Anthony Farmer, date of birth, 4-29-82; Bryan Farmer, date of birth, 8-18-83;

and Peggy Farmer, date of birth, 11-23-84.



       At the time the Tennessee Department of Children Services first intervened in

these cases in early November of 1994, the members of each of these two family units

were among a total of about twenty (20) people living in a house on Lishey Avenue in

Nashville.

       The “head” of this “household” wa s Novella Farm er, mother of Th eresa

Farmer/Estes and Walter Tom “Tommy” Farmer and thus maternal grandmother of the



                                               2
three children of her daughter, Theresa Farmer/Estes and paternal grandmother of the

children of her son Walter Tom “Tommy” Farmer.



       Before proceeding to separate considerations of these two family units, it is well to

observe, that one of the crucial findings o f fact made by Ju dge Shookoff, in both of these

cases, is undisputed and indeed conceded by all parties. Judge Shookoff found:

               “At the time of the children’s removal, the family was living in an
               overcrowded home that at times had more than twenty (20) people staying
               in it. The physical conditions of the home were deplorable-dirty, bug
               infested, and unsanitary. The children were filthy and had ringworm and
               lice, all associated with these unsanitary conditions and lack of parental
               attention to the children’s hygiene”.


       After an extensive consolidated trial, the Juvenile Court of Davidson County,

terminated the parental rights of Theresa Farmer/Estes and Brenda Farmer under

T.C.A. §36-1-113 (g)(3).

       T.C.A. §36-1-113 (g )(3) provides verba tim as follows:

               (g) Termination of parental or guardianship rights may be based upon
               any of the following grounds:

                                                    ...

               (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 return
               to the care of the parent(s) or guardian(s), still persist;

               (ii) There is little likelihood that these conditions will be remedied at an
               early date so that the ch ild can be returned to the parent(s) or guar dian(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 stable and
               permanent hom e.”




       T.C.A. §36-1-113 further delineates mandatory restraints upon the Court in

termination proc eedings:

               “(c) 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 (of?) parental or guardianship rights have
               been established; and


                                              3
               (2) That termination of the parent's or gua rdian's rights is in the best
               interests of the child.”


       The consolidated termination trial consumed four (4) nonconsecutive days before

the Juvenile Judge of Davidson County, same being respectively, March 29, 1996, April

11, 1996, April 30, 1996 and June 13, 1996. The trial judge then took the consolidated

cases under advisement and on July 29, 1996, filed separate Memorandums and Findings

of Fact in each ca se, terminating pare ntal rights in both cases.



       Brenda Farmer and Theresa Farmer/Estes filed separate appeals which were

consolidated for a rgument and con sideration by the Co urt of Appeals.



       While the issues presented on Appeal are the same and the standard of review by

this Court is the same as to each of the cases and much of the proof is applicable to both

cases, it is necessary to the fair and orderly administration of justice that the cases be

considered separately in Appellate review.



       Before proceeding to separate review, it is well to establish the rules of law

applicable to a termination of parental rights under T.C.A. §36-1-113(g)(3) and T.C.A.

§36-1-113(c) as such r ules control the dispositio n of both cases.



       In Tennessee Department of Human Services v. Riley 689 S.W.2d 164, 165 the

Court of Appeals, relying on codification existing in 1984 held:



               “[1] Thus, in order to terminate parental rights under subparagraph (1) of
               Section 37-246 (d) the court must find five elements: (1) The termination
               must be in the best interest of the children. § 37-246 (d); (2) The children
               must have been removed from the custody of the parent by the court for at
               least one year. § 37-246 (d)(1); (3) The conditions which led to the removal
               must still exist. § 37-246 (d)(1)(A); (4) There must be little chance that
               these conditions will be remedied so that the children can be returned to
               the parent at an early date. § 37-246 (d)(1)(B); and (5) The continuation of
               the parent-child relationship must greatly diminish the children's
               opportunities for e arly integration into a stable and perman ent home. §
               37-246 (d)(1)(C). Each requirement necessary for a termination under this
               subparagraph m ust be found by clear and convincing ev idence. Santosky
               v. Kramer, 455 U.S. 745, (1982).”




                                               4
       These are the same termination rules today existing under T.C.A. §36-1-113.

       1.      The termination must be in the best interest o f the children. T.C.A .
               §36-1- 113(c)(2);

       2.      The children must have been moved from the custody of the parent by
               the Court for at least six (6) months T.C.A. §36-1-113(g)(3)(A);

       3.      The conditions which lead 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 return to the care of the parents or guardians still persists
               T.C.A. §36-1-113(g)(3)(A)(I).

       4.      There is little likelihood that these conditions will be remedied at an
               early date so that the child can be returned to the parent or guardian
               in the near future T.C.A. §36-1-113(g)(3)(A)(ii).

       5.      The continuation of the parent or guardian and child relationship
               greatly diminishes the child’s chances of early integration into a stable
               and permanent home T.C.A. §36-1-113(g)(3)(A)(iii).

       6.      A finding by the Court by clear and convincing evidence that the
               grounds for termination or (of?) parental or guardianship rights has
               been established T.C.A. §36-1-113(c)(1).


       While the rules of Riley differ slightly from T.C.A. §36-1-113(c)(g) the five (5)

fundamental conditions for termination of parental rights are the same and the “clear

and convincing evidence” rule is the same.

       Thus it is seen, that the Riley rules survived almost verbatim the massive

recodification necessitated by the enactment of Chapter 532 of the Public Acts of 1995,

which, among many other things, converted former T.C.A. §37-246(d) into the present

T.C.A. §36-1-113 et seq.




         CONDITIONS LEADING TO THE REMOVAL OF THE CHILDREN



       The record of the actual consolidated termination trial before the Juvenile Judge

of Davidson County is preserved by a four volume verbatim transcript. The evidence

supporting or opposing the initial Juvenile Court decision to remove the children from

parental custody is not preserved for review by this Court and it is thus, conclusively

presumed on Appeal in the absence of such a transcript that the evidence supports the

decision of the Tri al Court. Cooper vs. Rosson 509 S.W.2d 836, 837 and Irvin vs. City of

Clarksville 767 S.W.2d 649, 653.




                                              5
       The lack of a verbatim transcript of evidence concerning the removal of the

children from parental custody does not seriously affect the issues presented for review

by the Appellants as the squalid and deplorable conditions leading to such removal are

established by the Orders of the Juvenile Court and are indeed not disputed by the

Appellants. It is the subsequent persistence of the conditions which led to the removal of

the children that for ms the primary basis f or Appeal in both ca ses.



       On the 29th of July, 1996, the Trial Judge in each case, entered an extensive

finding of facts and conclusions of law, resulting, in both cases, in termination of parental

rights pursuant to T.C.A. §36-1-113(g)(3).



       The conditions which led to the initial removal of Anthony, Bryan and Peggy from

the custody of their parents, Brenda Farmer and Walter “Tom” Farmer, were

determined by the Trial Court at follo ws:

               “Anthony, Bryan and Peggy came into foster care in November of 1994,
               pursuant to an emergency removal, arising out of allegations that Peggy
               and her cousin had been sexually abused by two uncles, Robert Farmer
               and Terry Farmer, and that Mr. and Mrs. Farm er permitted the uncles to
               continue to have access to the children even after they were made aware of
               the allegations of abuse.



               On December 14, 1994 an agreement was reached regarding the
               adjudication and disposition of the neglect and abuse allegations. The
               Court found Peggy to be a victim of child sexual abuse and the victim of
               severe child abuse in that she was sexua lly abused by her unc les. In
               addition, Peggy, Anthony and Brian were found to be dependent and
               neglected children in that the home that they were living in with their
               parents was unsuitable for habitation, that the children were infested with
               head lice and ringw orm, and that they had no personal hygien e skills.
               Legal custody of the children remained with the Tennessee Department of
               Human Serv ices.

                                                     ...

               The specific allegations which resulted in the emergency removal concern
               the sexual abuse of Peggy and her cousin by their uncles and the failure of
               the parents to keep the children away from the uncles pursuant to the
               safety plan. How ever the ‘condition s which led to rem oval’ encompass a
               constellation of parenting deficits which interfered with the parent’s
               ability to perceive and respond to risks to the health and safety of their
               children.

               At the time of the children’s removal, the family was living in an
               overcrowd ed home that at times ha d more than twe nty people staying in it.
               The physical conditions of the home were deplorable-dirty, bug infested
               and unsanitary. The children were filthy, and had ringworm and lice, all


                                              6
              associated with theses unsanitary conditions and lack of parental attention
              to the children’s hygiene. The boys lacked personal hygiene skills and
              Peggy lacked hyg iene opportunities.


              The constant flow of other adults in and out of the home, the familiarity
              with the character of the uncles, the drug use that went on, even if the
              parents did not partic ipate, should have aler ted the parents to the risks
              such living conditions presented. Not only did the parents expose their
              children to conditio ns that would place any child at risk, but they also
              failed to recognize the special vulnerability of their two sons, whose special
              needs required tha t they get added attenti on.”


As to the children of Teresa Farmer/Estes the Trial Court held:

              “Raymond, Amanda and Thomas came into foster care in November of
              1994 as a result of an emergency removal arising out of allegations that
              Amanda and her cousin had been sexually abused by two uncles, Robert
              Farmer and Terry Farmer, and that M s. Estes permitted the uncles to
              continue to have access to the children even after Ms. Estes was made
              aware of the allegations of abuse.

              On December 14, 1994 an agreement was reached regarding the
              adjudication and disposition of the neglect and abuse allegations. The
              Court found Amanda to be a victim of child sexual abuse and the victim of
              severe child abuse in that she was sexua lly abused by her unc les. In
              addition, Amanda, Raymond and Thomas were found to be dependent and
              neglected children in that they were living in a home with Ms. Estes that
              was unsuitable for habitation, that the children were filthy and infested
              with head lice and ringworm, and that they had no person al hygiene skills.
              Legal custody of the children remained with the Tennessee Department of
              Human Serv ices.

                                                     ...

              The specific allegations which resulted in the emergency removal concern
              the sexual abuse of Amanda and her cousin by their uncles and the failure
              of Ms. Estes to keep the children away from the uncles pursuant to the
              safety plan. How ever the ‘condition s which led to rem oval’ encompass a
              constellation of parenting deficits which interfered with Ms. Estes ability
              to perceive and respond to risks to the health and safety of her children.

              At the time of the children’s removal, the family was living in an
              overcrowd ed home that at times ha d more than twe nty people staying in it.
              The physical conditions of the home were deplorable-dirty, bug infested
              and unsanitary. The children were filthy, and had ringworm and lice, all
              associated with theses unsanitary conditions and lack of parental attention
              to the children’s hygie ne.

              The constant flow of other adults in and out of the home, her familiarity
              with the charac ter of the uncles, the dr ug use that went on, ev en if Ms.
              Estes did not engage in it, should have alerted Ms. Estes to the risks such
              living conditions presented. Not only did Ms. Estes expose their children
              to conditions that would place any child at risk, but they also failed to
              recognize the special vulnerability of their two sons, whose special needs
              required that they get added attention.”


       Thus it is seen, as to all of the children involved in these consolidated cases, that

the “conditions which led to removal” are precisely the same and are not the subjects of


                                              7
Appellate review sought by either Walter and Brenda Farmer, on the one hand, or

Theresa Carol Farmer/Estes on the other.



               THE APPEAL OF BRENDA AND WALTER FARMER



         Brenda and Walter Farmer assert the following issues on Appeal to-wit:

       1.      The Trial Cour t erred in finding tha t the Department o f Children’s
       Services proved by clear and convincing evidence of the persistence of
conditions which led to removal of Brenda Farmer’s children or which               would
subject her children to further neglect with little likelihood of          early
remediation.

       2.     Assuming, arguendo, that the Trial Court properly found clear and
              convincing evidence of a violation of T.C.A. §36-1-113(g)(3), the Trial
              Court erred in finding clear and convincing evidence that it is in the
              children’s best interest for Brenda Farmer’s parental rights to be
        terminated because termination would preclude the legal right to
visitation.

       3.     Terminating B renda Farme r’s parental rights to he r children violates
       the Tennessee and United States’ fundamental, constitutional right to
parent one’s children.


       The evidence is clear and convincing that the conditions which led to removal in

the first place persisted from the date of the Settlement Order of December 14, 1994

through the four day termination hearing in the Spring and Summer of 1996 resulting in

the Termination of Parental Right’s Order of July 29, 1996. Likewise, clear and

convincing evidence establishes that the children would be subject to further neglect with

little likelihood of early remediation.



       First of all, Walter and Brenda Farmer admitted that Peggy Farmer had been the

victim of sexual abuse by her uncles and agreed that the children were dependent and

neglected. These admissions are part of the Settlement, entered December 14, 1994,

whereby the th ree children, Anth ony, Bryan and P eggy were pla ced in foster care .



       Dr. Victor A. Pestrak, a licensed psychologist performed a comprehensive

parenting assessment as to both Mr. and Mrs. Farmer with an evaluation date of July 13,

1995. At the termination hearing, he testified:

               “. . .it was my recomm endation that the child ren not be returne d to Mrs.
               Farmer’s sole care at this time.


                                             8
              In fact, if they were placed in her sole care, they would be at serious
              potential risk for physical and psychological injury. This does not mean
              that there is any evidence from this evaluation that Mrs. Farmer would
              purposely harm her children, rather there is no evidence that she would
              act properly in an e ffort to protect the m should that be neede d.”


       In his evaluation of Mr. Farmer, occurring seven months after admitted sexual

abuse and depende nce and neglect, D r. Pestrak observes:

              “When asked about DHS involvement with his family, Mr. Farmer
              offered, ‘nobody is telling me nothing.’ When pressed he said his daughter
              reported being sexually abused by an uncle to a school official. He adds
              that his daughter did not disclose to him or his wife. When asked directly
              he acknowledged that previous to this DHS had taken steps to remove his
              son for serious neglect (‘the doctor told lies about me’).

              Mr. Farmer was very reluctant to discuss his daughter’s molestation. This
              was not in a protective manner, as he spoke at length negatively about
              DHS, his two brothers, the court system, and the detective. Rather, he was
              evasive regarding how often she was abused and when. He initially said
              she was abused one time. When presse d, he said it happened thr ee times.
              His comments conflicted with those of his wife.

              He insisted he did not break the safety agreement but that DHS people
              said he did, When ‘if he was responsible at all for any of his family’s
              trouble he was firm and stated, ‘none of it is my fault.’ When asked who is
              at fault he listed the detective, his daughters (for not telling him), and
              DHS. When reminded about the perpetrators he said, ‘it is all my
              brothers’ fault.’

              During the interview it was clear that Mr. Farmer demonstrated no
              remorse for his daughter’s molestation (even if he was helpless regarding
              it). He expressed no sympathy for his children’s neglect of abuse. He
              emphasized blaming others rather than correcting any trauma, hardship,
              or neglect.

                                                   ...

              In sum, there is no indication that Mr. Farmer admits any wrongdoing or
              personal flaws at all. He feels no need to change any of his parenting
              behaviors. Rather than perceive DHS involvement as an indication that he
              can improve his parenting skills, he sees them as yet another
              person/agency to project blame onto. Prognosis for any meaningful
              change is very low .”



       Further in his evalu ation as to Mrs. Far mer, Dr. Pestrak ob serves:

              “. . .Ms. Farmer accepts no personal responsibility and acknowledges no
              shortcomings at all. Her strong dependency results in her perception that
              Mr. Farmer gives her more social support than most spouses. This is not
              likely given her husband’s emotional limitations (see his report). However,
              this belief will certa inly affect M rs. Farmer’s beha vior, submissiveness,
              and strong sense of loyalty to him.

                                                    ...

              At this time it is not recomm ended that the childr en be returned to M s.
              Farmer’s sole care. Doing so presently will place the children at serious


                                             9
                potential for physical and psychological injury due to neglect. If the
                children were returned at this time we should expect that the previous
                reported problems with improper hygiene and failure to protect will
                continue.”



        The foregoing extensive evalua tion by Dr. Pestrak is suppo rted by psychologist

Dr. Ray Potts called as a witness on behalf of Mr. and Mrs. Farmer. When asked at the

termination hearing, whether or not proper therapy or counseling would help Mr. and

Mrs. Farmer, Dr. Potts responded:

                “It’s possible but I don’t think it’s probable. And I say that because this
                has been going on for a long time and they still aren’t anywhere near
                accepting that resp onsibility.

                        Q.     Is that a matter of their o wn limitations?

                        A.     Yes.”



        Mr. Farmer has not appealed from the Trial Court judgement, but continues as

the dominant partner in the marriage of the parties, and would be the co-custodial parent

upon restoration of custody to the Farm ers.



        The record shows clearly that the children have benefitted immensely from foster

care.



        The standard of review by this Court of a decision terminating parental rights is

de novo upon the record with the presumption of correctness of the findings of fact by

the Trial Court (In Re: Drinnon 776 S.W.2d 97, Tenn. 1988).



        Applying this standard to the extensive Trial Court record in this case, this Court

finds that clear and convincing evidence demonstrates that the Trial Court correctly

terminated the parental rights of Walter and Brenda Farmer under the provisions of

T.C.A. §36-1-113(g )(3) and equally demo nstrates that such term ination is in the best

interest of the childr en.



                      THE APPEAL OF THERESA FARMER/ESTES




                                               10
       As in the Brenda Farmer case, Theresa Farmer/Estes does not take issue on

Appeal with the facts causing the original removal of her children from her custody. The

deplorable conditions existing in the Lishey Avenue home are not disputed and the issue

before this Court relates to the persistence of those conditions after removal.




       The Trial Court in its July 29, 1996 finding of fact asserted that which is crucial

to the determination of the issues on Appeal.

               “There are two related question that are determinative of whether the
               children can be saf ely returned to M rs. Estes:

               First, has Mrs. Estes developed special appreciation of the problems that
               brought the children into care so that she recognizes both the problems
               and the role that she played in those problems and second, has she
               developed the skills and incites necessary to provide a safe environment
               for the children.

               Mrs. Estes has attended some parenting classes. She has attended some
               counselling. She has complied with visitation. She has cooperated with
               psychological evaluations and parenting assessments. She has finally
               moved out of her mother’s home. She has thus substantially complied with
               the plan of care.

               Nonetheless, in her testimony before the Court and in her conversations
               with others, Mrs. Estes does not appear to either agree that the emergency
               removal was neccessary nor acknowledged the problems that her living
               situation presented. Despite this Court’s previous findings and the
               testimony in this proceeding, she was not able to acknowledge any
               wrongdoing on her part or any deficits in the way she was raising her
               children. She did not recognize any of the children’s special needs or show
               any understanding of what special action she would need to take to meet
               these needs. Although the Court previously found that her brother,
               Walter Farmer, sexually abused both Amanda and Raymond, Mrs. Estes
               does not believe that to be true. Mrs. Estes remains very much susceptible
               to influences of other family members, including her mother, who has
               consistently denied that any abuse occurred.”


       The ability of this Court to adequately review this case on Appeal is compromised

by the state of the record. For instance, the psychological assessment of Dr. Victor

Pestrak as to Theresa Farmer/Estes was admitted in evidence as an exhibit to his

testimony, but such report is not found among the exhibits in the record. The notes of

Mrs. Lucinda Pincince, the clinical therapist at Luton Mental Health Center, relating to

Theresa Farmer/Estes, were admitted into evidence at the time of her testimony, but such

notes do not appear as exhibits in the record before this Court.

       Dr. Pestrak testifies that he found:



                                              11
                “no indication that Mrs. Estes feels that she is at fault in the serious
               allegations made against her. Similarly she feels that she has no
               limitations in terms of parenting, and so there would be nothing to focus
               on in terms of becoming a better parent. . . through the counselling
               process”

He further testif ies that the rigidity of M rs. Estes thinking would block therapy beca use

it would prevent her from recognizing that she had a problem. He further asserts that

Mrs. Estes could have benefitted from counselling subsequent to his assessment, but that

she is not a good candidate for counselling and progress because as of the date of his

testimony in the termination hearing, she remained in complete denial and saw absolutely

nothing wrong with her own parenting skills and thus, did not need counseling.



       Mrs. Pincince, who was her weekly clinical therapist, testified that Mrs. Estes

continually denied that her daughter had been sexually abused and Mrs. Pincince wrote a

letter to the Department of Children Services on January 17, 1996, pointing out the

inconsistencies relati ve to the recognitio n of sexual abuse o f her children.



       Olen Winningham, who was the ACCT worker throughout the Estes case,

testified from the plans of care as to Mrs. Estes and her children asserting that although

Mrs. Estes had complied with most of her responsibilities under the original plan of care,

that her low level of functioning and attachments to her family rendered it unlikely that

she would ever be able to function as a care giver for her children. She was much

dominated by her family and apparently unable to prevent the sexual abuse that

occurred to her children because of members of h er family. Finally, Mrs. Estes in her

own testimony of June 13, 1996, after the more than two years of involvement by the

Department of Children Services and the repeated findings of the Trial Court relative to

sexual abuse of her children by her brothers, testified:

               “Q.     Why do you think the children were taken away from you?

               A.      I really don’t know.”



       While Mrs. Estes agreed to the findings of abuse and neglect as to her children in

the December 14, 1994 Order of the Juvenile Court, the record demonstrates a contrary

pattern of willful denial by Mrs. Estes of any of the conditions that brought about the



                                               12
initial removal and either an inability to come to grips with the obvious effects of the

sexual abuse per petrated on her ch ildren by her broth ers or if recognizin g such to exist

and inability to protec t the children from such continued abuse .



       Thus, the record fully supports the testimony of Dr. Pestrak that Mrs. Estes was

cognitively and psychologically unlikely to benefit from counselling, especially because of

the rigidity that led her to deny any fault or responsibility for the children’ neglect and

abuse and made he r unable to recogn ize abuse indications.



       Clear and convincing evidence supports the action of the Trial Judge in

terminating the parental rights’ of Theresa Farmer/Estes under T.C.A. §36-1-113(g)(3).



       The record likewise establishes by clear and convincing evidence that removal is

in the best interest of the children. All of the children have benefitted enormously from

foster care.



       Because Mrs. Estes continued to deny the childrens’ problems and her role

therein, because she was unable to recognize indicators of abuse and thus protect her

children; because the children thrived in foster care and because only after termination

could the children be adopted into a nurturing environment, the Juvenile Court correctly

concluded that termination of parental rights’ was in the childrens’ best interest.



       Mrs. Estes complains that the Department did not make reasonable efforts to

reunify the family before seeking to terminate parental rights. This assertion is without

support in the record. The State and Mrs. Estes entered into a foster care plan on

November 19, 1994, under which Mrs. Estes agreed to psychological assessment, to

parenting classes, to visitation and to acquiring and maintaining a suitable home, every

assistance possible was given to reunite the Estes family and Mrs. Estes attempted to

comply with her responsibilities under the plan. The record shows however, that she

continues to in effect deny that any problem ever existed to start with and thus little or no

progress was possible, no matter what efforts the Department of Children Services made.



                                              13
                                      CONCLUSION



       This case has been kept under advisement for an inordinate period of time for two

reasons.



       First of all, the consolidated record before the Court in both termination trial

testimony and the pre-termination hearing record of proceedings is complex, confusing

and very difficult to decipher in any organized fashion.



       Secondly, and more importantly, is the specter inherent in every case where the

Court is called upon to terminate parental rights. This is poignantly stated by Judge

Nearn in his dissent in Tennessee Department of Human Services v. Riley 689 S.W.2d

164, 172:

               “The state has the right to terminate one's life only when some heinous
               wrong has been willfully done. If that be true, then under which
               constitutional power granted by the people does the state have the right,
               without a finding of willful wrongdoing, to terminate forever the parental
               relationship, which in most cases is more precious than life itself? I believe
               none exists. It certainly cannot be done under the guise of the best interests
               of the child. If that were so, then every child living in dire poverty would
               be subject to being taken away from poor parents so that they could be
               adopted by more affluent and equa lly caring parents. “



       It cannot be said, however, that the General Assembly of Tennessee has failed to

recognize and take into consideration the potential for injustice so eloquently pointed out

by Judge Nearn. The statutory scheme recognizes that the States’ interest in protecting

children:

                “. . .must be tempered by a parent’s constitutionally protected privacy
               interests in raising his or her children free from unwarranted
               governmental interference thus, a parent’s rights may be terminated only
               when the continuation of the relationship between the parent and the child
               poses a substantial threat of harm to the child.”

                      In the matter of Jer emy D. and Natha n D.                   Appeal
               No. 01-A-01-9510-JV-00479 (Tenn.App May 17, 1996).


       Further protection is added by the “clear and convincing evidence standard” by

which both the T rial Courts and App ellate Courts are bo und. In both of these

consolidated cases at bar, this Court is satisfied that the Juvenile Court of Davidson



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County has acted with meticulous care with a thorough and scholarly consideration of all

issues. The Juvenile Court has seen and observed the manner and demeanor of all

witnesses testifying before it in the term ination hearing as w ell as carefully “nu rse

maiding” these case s for more than tw o years before c oming to its ultimate con clusion.

That conclusion is in all respects supported by clear and convincing evidence and the

judgement of the Juvenile Court of Davidson County is all respects affirmed.

                                                       ___________________________
                                                       WILLIAM B. CAIN, JUDGE

CONCUR:

_____________________________________
HENRY F. TODD,
PRESIDING JUDGE, MIDDLE SECTION


_____________________________________
BEN H. CANTRELL, JUDGE




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