                     IN THE COURT OF APPEALS OF TENNESSEE
                                  AT JACKSON
                                     NOVEMBER 16, 2004 Session

 IN THE MATTER OF N.P., W.N., AND C.N., Children Under the Age of 18
                              Years

                   Direct Appeal from the Juvenile Court for Lauderdale County
                              No. J5-961    Rachel Anthony, Judge



                      No. W2004-00345-COA-R3-PT - Filed December 23, 2004


This appeal involves the termination of the parental rights of Mother and Father to their children.
After a hearing, the Lauderdale County Juvenile Court terminated Mother’s parental rights over
W.N. and C.N. on the grounds of abandonment for failure to support and severe child abuse.
Further, the trial court found that termination of Mother’s parental rights is in the best interest of the
children. Mother now seeks review by this Court, and we affirm.


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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.

Barbara A. Deere, Dyersburg, TN, for Appellant

Paul G. Summers, Attorney General & Reporter, Douglas Earl Dimond, Senior Counsel, Nashville,
TN, for Appellee

                                                      OPINION

                                         Facts and Procedural History

        Aimee R. Paschall (“Mother” or “Appellant”) and Michael Newby (“Father”) are the parents
of W.N. (d.o.b. 3/27/1997) and C.N. (d.o.b. 4/24/2000). Mother and Mark Pfeffer (“Pfeffer”) are
the parents of N.P. (d.o.b. 4/30/1995), who lived with Mother and Father.1 On September 23, 2002,


         1
                    On March 24, 2003, N.P. was placed in the physical custody of Pfeffer for a 90-day trial visit to
effectuate N.P.’s transition into Pfeffer’s legal custody. Though DCS filed a petition to terminate Mother’s and Pfeffer’s
parental rights over N.P. on M ay 19, 2003, the trial court awarded Pfeffer legal custody of N.P. on July 10, 2003, and,
                                                                                                            (continued...)
Mother and Father took C.N. to see a physician about an ear infection and a medical examination.
During the course of the examination, the physician discovered C.N. had genital warts, a rectal tear,
and the skin on the end of C.N.’s penis was red and irritated. Additionally, C.N. had faded bruises
on his back. On or about September 23, 2002, Father was incarcerated, and he was found guilty of
one count of felony child abuse resulting in injury and two counts of misdemeanor child abuse and
neglect in the Lauderdale County Circuit Court. He received one prison sentence of two years and
two prison sentences of eleven months and twenty-nine days, all to run consecutively.

        Subsequently, on September 25, 2002, the Tennessee Department of Children’s Services
(“DCS” or “Appellee”) filed a petition for temporary custody of N.P., W.N., and C.N. in the
Lauderdale County Juvenile Court. On the same day, the lower court ordered that the three children
be placed in DCS’s protective custody. On March 17, 2003, a hearing was held on the petition for
temporary custody filed by DCS. Mother, Father, and Pfeffer were each represented by counsel and,
after being informed of their rights, Mother and Father stipulated that the three children were
sexually and physically abused, amounting to “severe child abuse” as defined by section 37-1-
102(b)(21)(B) of the Tennessee Code. Mother further stipulated that she knowingly failed to protect
the children from such abuse.

        On May 19, 2003, DCS filed its petition to terminate Mother’s and Father’s parental rights.
Prior to a hearing on this petition, on July 10, 2003, the lower court held a hearing on Pfeffer’s
petition to intervene for change of custody of N.P. At such hearing, the lower court awarded Pfeffer
legal custody of N.P., ordered Mother to pay Pfeffer monthly child support, and stated that Pfeffer
would supervise Mother’s visits with N.P. On October 13, 2003, the juvenile court held a hearing
on DCS’s petition to terminate Mother’s and Father’s parental rights over W.N. and C.N. The trial
court terminated Father’s parental rights on the grounds that Father committed severe child abuse,
he was sentenced for more than two years of imprisonment for conduct against the children, and
placing the children in Father’s legal and physical custody would pose a substantial risk of harm to
the children’s physical or psychological welfare.2 The juvenile court also terminated Mother’s
parental rights on the grounds that she abandoned her children by willfully failing to pay support for
them and for severe child abuse. Additionally, the lower court found that termination of Mother’s
and Father’s parental rights is in the best interest of W.N. and C.N. Mother appealed this decision
and presents the following issues, as we perceive them, for our review:

        I.       Whether the trial court erred when it admitted evidence of Mother’s statement to
                 police officials on or about September 23, 2002, and denied evidence of alleged
                 statements made by counsel for DCS;
        II.      Whether the trial court erred when it determined there was clear and convincing
                 evidence to terminate Mother’s parental rights on the ground of severe child abuse;

        1
           (...continued)
subsequently, DCS voluntarily dismissed its petition to terminate the parental rights with regard to N.P. Therefore,
Pfeffer is not a party to this appeal, and the parental rights over N.P. are not at issue.

        2
                 Father waived his right to appeal this decision, and, therefore, he is not a party before this Court.

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       III.    Whether the trial court erred when it determined there was clear and convincing
               evidence to terminate Mother’s parental rights on the ground of abandonment for
               willfully failing to support W.N. and C.N.; and
       IV.     Whether the trial court erred when it determined that termination of Mother’s
               parental rights is in the best interest of W.N. and C.N.

For the following reasons, we affirm the decision of the trial court.

                                        Standard of Review

        We review findings of fact by a trial court sitting without a jury de novo upon the record with
a presumption of correctness, and, unless the evidence preponderates against the findings, we must
affirm, absent an error of law. Tenn. R. Civ. P. 13(d); In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002); In re L.J.C., A.L.C., & J.R.C., 124 S.W.3d 609, 619 (Tenn. Ct. App. 2003). Further, we
review issues of law de novo with no presumption of correctness. Valentine, 79 S.W.3d at 546
(citing Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993)).
        We also note that a trial court judge holds a special position:

       Where the trial judge has seen and heard the witnesses, especially if issues of
       credibility and weight to be given oral testimony are involved, considerable deference
       must be accorded those circumstances on review, because it is the trial court which
       had the opportunity to observe the witnesses’ demeanor and to hear the in-court
       testimony.

Moore v. Shoney’s, Inc., No. M2002-02635-WC-R3-CV, 2003 Tenn. LEXIS 1123, at *2-3 (Tenn.
Nov. 20, 2003) (citing Long v. Tri-Con Indus., Ltd., 996 S.W.2d 173, 178 (Tenn. 1999)); see also
State v. Blackwell, No. W2004-00509-COA-R3-PT, 2004 Tenn. App. LEXIS 739, at *11-12 (Tenn.
Ct. App. Nov. 8, 2004). In this case, the trial court found that only Mother was not credible.

                                         Evidentiary Issues

        Mother argues that the trial court erred when it admitted evidence of a report allegedly taken
by a police officer on or about September 23, 2002, which included a statement made by Mother,
concerning her knowledge of whether the children were abused by Father. Additionally, Mother
appears to argue that the trial court erred when it refused to permit certain testimony by Burnett Alby
(“Alby”), a clinical therapist for Professional Counseling Services in Dyersburg, Tennessee.
(Appellant’s Brief p. 9). We begin by noting that “the admission or exclusion of evidence at trial
is within the sound discretion of the trial court and will not be overturned absent a finding of abuse
of such discretion.” Evans v. Evans, No. W2001-03037-COA-R3-CV, 2003 Tenn. App. LEXIS 25,
at *23 (Tenn. Ct. App. Jan. 14, 2003) (citing Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439,
442 (Tenn. 1992)). Additionally, “[a]ppellate courts should permit a discretionary decision to stand
if reasonable judicial minds can differ concerning its soundness.” White v. Vanderbilt Univ., 21



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S.W.3d 215, 223 (Tenn. Ct. App. 1999) (citing Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 695
(Tenn. Ct. App. 1999)); see also Evans, 2003 Tenn. App. LEXIS 25, at *23.

         First, with respect to the police report, we note that such a report is hearsay and does not fall
within the hearsay exception outlined in Tenn. R. Evid. 803(8), which allows the admission of
certain public records and reports. See McBee v. Williams, 405 S.W.2d 668, 670-71 (Tenn. Ct. App.
1966). After reviewing the record, it appears that such report was never admitted into evidence and
it is not in the record. However, we note that there was testimony concerning Mother’s statement
in the police report, and, additionally, the trial court relied upon a portion of Mother’s statement to
establish that termination of Mother’s parental rights is in W.N.’s and C.N.’s best interest. It appears
that such testimony relates to the issue of whether Mother knew or should have known that Father
was physically and sexually abusing the children. The trial court found that such statement was
written by Mother to the police department. Such a statement would not constitute a police report
but an admission by a party opponent, which would make it admissible under Tenn. R. Evid.
803(1.2). Therefore, we cannot say the trial court abused its discretion when it admitted testimony
concerning the statement written by Mother.

         Even if the evidence at issue involved an inadmissible police report, we note that, pursuant
to Tenn. R. App. P. 36(b), such error would not constitute reversible error, because the admission
of testimony concerning the statement did not “more probably than not affect[] the judgment or . .
. result in prejudice to the judicial process.” Tenn. R. App. P. 36(b) (2004). In this case, there was
ample evidence to establish that Mother knew or should have known that Father was physically and
sexually abusing the children. First, Yolanda Lynch (“Lynch”), one of the children’s foster parents,
and Lynch’s daughter, Rheay Crowder (“Crowder”), testified that N.P. and W.N. said that Father had
physically and sexually abused them and that they both alerted Mother to this abuse. Specifically,
N.P. and W.N. each told Lynch Crowder that Father would pull down his pants and their pants, lay
them down on their stomachs, put a pillow on their faces, put socks on the ends of their hands, and
then lie on top of each of them. Further, N.P. stated that he told Mother about the abuse inflicted by
Father. The trial court properly determined that such testimony was admissible pursuant to Tenn.
R. Evid. 803(25). Additionally, Mother stipulated in a prior court order that she “knowingly failed
to protect the children from [severe] abuse” as defined by section 37-1-102(b)(21)(B) of the
Tennessee Code. Therefore, even if testimony concerning Mother’s statement to the police were
excluded, the testimony of Lynch and Crowder and the prior trial court order establish that Mother
knew of the physical and sexual abuse of the children.

        Second, Mother argues that the trial court erred when it excluded portions of Alby’s
testimony. When counsel for Mother called Alby to the stand, a sidebar conference was held
wherein counsel for DCS argued that Alby should not be permitted to testify to any alleged
statements made by counsel for DCS to Mother in the proceedings which led to the prior trial court
order, dated April 17, 2003, finding Mother committed severe child abuse. After our review of the
record, we cannot say that the trial court abused its discretion when it narrowed Alby’s testimony
to relevant evidence concerning the issue of whether Mother’s failure to pay support was willful and
whether Mother made a positive adjustment of circumstances.


                                                   -4-
                                      Grounds for Termination

         In order to terminate parental rights, a trial court must find, by clear and convincing evidence,
that one of the grounds for termination exists and that such termination is in the best interest of the
child. Tenn. Code Ann. § 36-1-113(c). “Clear and convincing evidence” is defined as “evidence
in which there is no serious or substantial doubt about the correctness of the conclusions drawn from
the evidence.” Valentine, 79 S.W.3d at 546 (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896,
901 n.3 (Tenn. 1992)). In this case, the trial court found that termination was proper on the grounds
of (1) severe child abuse, and (2) abandonment by willfully failing to support W.N. and C.N. Mother
challenges the trial court’s finding that DCS carried its burden of proof on these grounds. In order
to prevail, Mother must demonstrate that DCS failed to carry its burden of proving both of these
grounds since proof of one statutory ground will support the termination of parental rights. Id.
(citing In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct. App. 2000)). We will address these grounds
and the factors determining the best interest of W.N. and C.N. in turn.

                                         Severe Child Abuse

       Mother first argues that DCS failed to prove the ground of severe child abuse by clear and
convincing evidence. Section 36-1-113(g)(4) of the Tennessee Code states that a ground for
termination of parental rights includes the following:

               (4) The parent or guardian has been found to have committed severe child
        abuse as defined in § 37-1-102, under any prior order of a court or is found by the
        court hearing the petition to terminate parental rights or the petition for adoption 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, or any other child residing
        temporarily or permanently in the home of such parent or guardian. . . .

Tenn. Code Ann. § 36-1-113(g)(4) (2003). In this case, Mother stipulated in a prior proceeding
before the Lauderdale County Juvenile Court on DCS’s petition for temporary custody that N.P.,
W.N., and C.N. were sexually and physically abused, amounting to severe child abuse under section
37-1-102(b)(21)(B) of the Tennessee Code. That section provides that “severe child abuse” means:

                (B) Specific brutality, abuse or neglect towards a child which in the opinion
        of qualified experts has caused or will reasonably 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) (2003). Mother stipulated that she knowingly failed to
protect the children from this abuse. Because Mother was found to have committed severe child
abuse as defined in section 37-1-102 “under [a] prior order of a court,” in this case the


                                                   -5-
Lauderdale County Juvenile Court, this ground for termination applies and is established by clear
and convincing evidence. Because DCS must prove only one ground to terminate a person’s
parental rights, the issue of whether DCS proved by clear and convincing evidence that Mother
abandoned her children by willfully failing to support them is pretermitted.

                                   Best Interest of the Children

       Finally, before a trial court may terminate a person’s parental rights, in addition to finding
a ground for termination by clear and convincing evidence, it must also find that such termination
of parental rights is in the best interest of the child. Tenn. Code Ann. § 36-1-113(c) (2003).
Tennessee Code Annotated § 36-1-113(i) provides:

       (i) In determining whether termination of parental or guardianship rights is in the best
       interest of the child pursuant to this part, the court shall consider, but is not limited
       to, the following:
       (1) Whether the parent or guardian has made such an adjustment of circumstance,
       conduct, or conditions as to make it safe and in the child’s best interest to be in the
       home of the parent or guardian;
       (2) Whether the parent or guardian has failed to effect a lasting adjustment after
       reasonable efforts by available social services agencies for such duration of time that
       lasting adjustment does not reasonably appear possible;
       (3) Whether the parent or guardian has maintained regular visitation or other contact
       with the child;
       (4) Whether a meaningful relationship has otherwise been established between the
       parent or guardian and the child;
       (5) The effect a change of caretakers and physical environment is likely to have on
       the child’s emotional, psychological and medical condition;
       (6) Whether the parent or guardian, or other person residing with the parent or
       guardian, has shown brutality, physical, sexual, emotional or psychological abuse, or
       neglect toward the child, or another child or adult in the family or household;
       (7) Whether the physical environment of the parent’s or guardian’s home is healthy
       and safe, whether there is criminal activity in the home, or whether there is such use
       of alcohol or controlled substances as may render the parent or guardian consistently
       unable to care for the child in a safe and stable manner;
       (8) Whether the parent’s or guardian’s mental and/or emotional status would be
       detrimental to the child or prevent the parent or guardian from effectively providing
       safe and stable care and supervision for the child; or
       (9) Whether the parent or guardian has paid child support consistent with the child
       support guidelines promulgated by the department pursuant to § 36-5-101.

Tenn. Code Ann. § 36-1-113(i) (2003). Mother argues that termination of her parental rights over
W.N. and C.N. is not in the children’s best interest. We disagree.



                                                 -6-
        Though there was proof that Mother received counseling after N.P., W.N., and C.N. were
removed by DCS, she continued to deny that she had knowledge of any physical or sexual abuse by
Father, despite the testimony of Yolanda Lynch regarding statements made by N.P. and W.N. and
Mother’s stipulation in the juvenile court order dated April 17, 2003, that she knew of the severe
child abuse committed against the children. Such evidence supports the trial court’s determination
that Mother failed to make an adjustment of circumstance. Tenn. Code Ann. §36-1-113(i)(1) (2003).
Additionally, Mother failed to obtain employment until approximately two weeks before the hearing
on DCS’s petition to terminate parental rights in October 2003. Further, various witnesses testified
that Mother changed residences between two and four occasions in the year prior to the hearing. The
trial court also found, supported by the testimony at trial, that W.N. and C.N. have been in state
custody for over a year and are thriving in their current environment. The court determined that
W.N. and C.N. had stabilized in their current environment and that a change of caretakers would
have a detrimental effect on W.N.’s and C.N.’s emotional, psychological, and medical condition.
Tenn. Code Ann. § 36-1-113(i)(5) (2003). Next, the trial court found, and it was undisputed, that
Mother paid no child support for the children while they were in DCS’s custody. Tenn. Code Ann.
§ 36-1-113(i)(9) (2003). Finally, the trial court found that Mother’s mental or emotional state of
mind would be detrimental to W.N. and C.N. and prevent Mother from effectively providing safe
and stable care and supervision for W.N. and C.N. Tenn. Code Ann. § 36-1-113(i)(8) (2003).
Yolanda Lynch testified that N.P. and W.N. indicated to her that they both told Mother of the
physical and sexual abuse by Father. Additionally, Mother stipulated in a prior court order of the
juvenile court that she knew of the severe child abuse committed against the children. However,
Mother continued to deny that she had any knowledge of any abuse and did nothing at any point in
time prior to removal to prevent any abuse. We cannot say that the trial court erred when it
determined that termination of Mother’s parental rights over W.N. and C.N. is in the best interest
of the children.

                                            Conclusion

        For the reasons stated above, we affirm the decision of the trial court. Costs of this appeal
are taxed to Appellant, Aimee R. Paschall, and her surety for which execution may issue if necessary.



                                                      ___________________________________
                                                      ALAN E. HIGHERS, JUDGE




                                                -7-
