                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                            Assigned on Briefs September 1, 2010

                  IN RE: ALEKSANDREE M.M. AND MARIE J.M.1

                  Appeal from the Chancery Court for Marshall County
                            No. 14866 J. B. Cox, Chancellor


                No. M2010-01084-COA-R3-PT - Filed September 27, 2010


Mother of four children appeals the termination of her parental rights to two of those children
on the ground that she failed to protect them from severe child abuse. Finding the evidence
of record to clearly and convincingly support the ground for termination and that termination
was in the children’s best interest, we affirm the judgment.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R., and A NDY D. B ENNETT, JJ., joined.

Jheri Beth Rich, Lewisburg, Tennessee, for the appellant, Holly M.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Lindsey O. Appiah, Assistant Attorney General, for the appellee, State of Tennessee.

                                               OPINION

I. Factual and Procedural History

        The Tennessee Department of Children’s Services (“DCS”) initiated a proceeding on
September 29, 2008, in the Chancery Court for Marshal County to terminate the parental
rights of Holly M. (“Mother”) to her three children. The Marshall County Juvenile Court had
previously determined that the children were dependent and neglected and granted temporary
custody to DCS. The termination petition also named Scott C., father of the two oldest
children, and Paul M., father of the youngest child, as respondents; it sought termination of


        1
            This Court has a policy of protecting the identity of children in parental termination cases by
initializing the last names of the parties.
all parental rights on the ground of severe child abuse pursuant to Tenn. Code Ann. § 36-1-
113(g)(4). The petition alleged that Paul M. had engaged in sexual activities with D.C.
(Scott C. and Mother’s oldest child) and alleged that Scott C. and Mother knowingly failed
to protect D.C. from the abuse.2

        The termination petition was amended on December 23, 2009 to add Paul M.’s second
child with Mother (Mother’s fourth child), born March 4, 2009, to the proceeding. The
amended petition added as a ground against Paul M. that he had been sentenced to a greater
than ten year prison sentence as a result of his conviction for rape of a child and that the two
younger children were under the age of eight at the time of his sentencing. The amended
petition also noted the dismissal of the petition as against Scott C.3 Following a trial held on
January 14 and March 8, 2010, the court entered an order terminating Mother’s parental
rights to her two youngest children. Mother appeals, raising the following issues:

               1. Did the Trial Court err in determining that D.C.S. proved by clear
        and convincing evidence that the Respondent failed to protect her minor
        children.
               2. Did the Trial Court err in determining that D.C.S. proved by clear
        and convincing evidence that it is in the best interest of the minor children that
        the Respondent’s parental rights be terminated.

II. STANDARD OF REVIEW

       A parent has a fundamental right to the care, custody, and control of his or her child.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170,
174 (Tenn. 1996). Thus, the state may interfere with parental rights only if there is a
compelling state interest. Nash-Putnam, 921 S.W.2d at 174–75 (citing Santosky v. Kramer,
455 U.S. 745 (1982)). Terminating a person’s parental rights “has the legal effect of
reducing the parent to the role of a complete stranger.” In re W.B., IV., No. M2004-00999-
COA-R3-PT, 2005 WL 1021618, at *6 (Tenn. Ct. App. Apr. 29, 2005). Pursuant to Tenn.


        2
          On March 12, 2009, Niki K., the maternal grandmother of the children, sought to intervene in the
case, requesting that the children be placed with her in the event the termination petition was granted. At
a hearing held on January 13, 2010, the motion to intervene was denied.
        3
            Although the record in this case does not include the record of the dependent and neglect
proceedings pending in Marshall County Juvenile Court, the record does contain a motion to dismiss filed
by Scott C. which recites that custody of the two eldest children (Scott C.’s children) was awarded to Scott
C. on June 9, 2009 by the Juvenile Court; an agreed order was entered dismissing the termination petition
as respects Scott C., and the termination order at issue in this case addresses only the children of Mother and
Paul M.

                                                     -2-
Code Ann. § 36-1-113(l)(1), “[a]n order terminating parental rights shall have the effect of
severing forever all legal rights and obligations of the parent or guardian of the child against
whom the order of termination is entered and of the child who is the subject of the petition
to that parent or guardian.”

        Our termination statutes identify “those situations in which the state’s interest in the
welfare of a child justifies interference with a parent’s constitutional rights by setting forth
grounds on which termination proceedings can be brought.” In re W.B., 2005 WL 1021618,
at *7 (citing Tenn. Code Ann. § 36-1-113(g)). To support the termination of parental rights,
petitioners must prove both the existence of one of the statutory grounds for termination and
that termination is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B.,
118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

        Because of the fundamental nature of the parent’s rights and the grave consequences
of the termination of those rights, courts must require a higher standard of proof in deciding
termination cases. Santosky, 455 U.S. at 769; Matter of M.W.A., Jr., 980 S.W.2d 620, 622
(Tenn. Ct. App. 1998). Thus, both the grounds for termination and the best interest inquiry
must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1);
In re Valentine, 79 S.W.3d at 546. In light of the heightened standard of proof in these cases,
a reviewing court must adapt the customary standard of review set forth by Tenn. R. App.
P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004). As to the court’s
findings of fact, our review is de novo with a presumption of correctness unless the evidence
preponderates otherwise, in accordance with Tenn. R. App. P. 13(d). Id. We must then
determine whether the facts, as found by the trial court or as supported by the preponderance
of the evidence, clearly and convincingly establish the elements necessary to terminate
parental rights. Id.

III. DISCUSSION

       A. Statutory Ground for Termination

      The court terminated Mother’s parental rights on the ground set forth at Tenn. Code
Ann. § 36-1-113(g)(4)4 and made the following findings of fact in the order of termination:


       4
           Tenn Code Ann. §36-1-113(g)(4) provides:

       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
                                                                                                (continued...)

                                                    -3-
        1. [Mother] is the mother of DC . . .; B.C.; AMM . . .; and MJM. . . .
AMM and MJM are half sisters to DC.
        ***
        3. Paul M. is the father of AMM and MJM.
        4. Paul M. was convicted in the Marshall County Circuit Court for the
rape of DC. [Mother] was also living in the home of Paul M. at the time these
acts were committed. DC, BC and AMM were also living there. Paul M. was
the stepfather to DC.
        5. Paul M. is currently incarcerated with the T.D.O.C. He has been
convicted after a jury trial in Marshall County Circuit Court. The judgments
are exhibits, as is the trial transcript. Nevertheless, [Mother] is not convinced
of his guilt. This is troubling to this Honorable Court.
        6. The Court is convinced that had these children remained in the home
with Paul M. and [Mother], there wold have been more victims.
        7. [Mother] allowed Paul M. and DC to be alone and unsupervised on
numerous occasions.
        8. [Mother] is 37 years of age. She states that she was sexually abused
as a child. Since she was in her 20s, she has carried a diagnosis of bipolar.
Now, only since 2009, [Mother] has been taking medicine. She was not taking
medicine for her condition, during the period when Paul M. was having sex
with DC.
        9. On the date of this trial, [Mother] has a lack of memory for the
hellish period. She says that she is now on her medications. She states that her
memory is spotty. The Court hopes that [Mother] is better now. The Court
finds her testimony as to what she remembers and what she does not remember
to be convenient and not credible.



4
    (...continued)
such child, or any other child residing temporarily or permanently in the home of such
parent or guardian.

Tenn Code Ann. § 37-1-102(b)(23) defines “severe child abuse” in part pertinent to this
appeal as:
(A) The knowing exposure of the child to or the knowing failure to protect a child from
abuse or neglect that is likely to cause great bodily harm or death . . . ;
***
(C) The commission of any act towards the child prohibited by §§ 39-13-502 – 39-13-504,
39-13-522, 39-15-302, and 39-17-1005 or the knowing failure to protect the child from the
commission of any such act towards the child.


                                          -4-
                 10. Witnesses placed pornography in the home during the time period
          in question.

        Mother does not challenge the evidentiary support of any of the findings, all of which
are supported by clear and convincing evidence.5 Mother contends, however, that the
evidence is not clear and convincing that she failed to protect the children and asserts that
she was not aware that Paul M. was sexually abusing her daughter. While Mother is correct
that there is no direct evidence that she participated in the abuse of her child or witnessed the
incidences of abuse, the record is replete with evidence that her conduct violated Tenn. Code
Ann. § 36-1-113(g)(4), as that statute has been interpreted and applied.

        “Parents who have not themselves severely abused their own child may still be found
to have committed severe child abuse if they knowingly exposed the child to, or knowingly
failed to protect the child from, conduct constituting severe child abuse.” In re R.C.P., No.
M2003-01143-COA-R3-PT, 2004 WL 1567122, at *6 (Tenn. Ct. App. July 13, 2004) (citing
Tenn. Code Ann. § 37-1-102(b)(21)(A)–(C)). “A parent’s failure to protect a child will also
be considered ‘knowing’ if the parent had been presented with sufficient facts from which
he or she could have and should have recognized that severe child abuse had occurred or that
it was highly probable that severe child abuse would occur.” Id. at *7.

        In addition to testimony of D.C., the record in this case includes the testimony of
several of the adults who lived with Mother and Paul M. and pursued a “polyamory”
lifestyle.6 D.C. testified that the first incident of abuse occurred on her ninth birthday, when

          5
           We have reviewed the transcript of the Chancery Court proceeding as well as that of the criminal
trial of Paul M. The evidence is clear and convincing that Paul M. was guilty of multiple violations of Tenn.
Code Ann. § 39-13-522. Because mother does not challenge the factual support for the court’s findings and,
in light of the lurid nature of much of the proof, it is not necessary to recite specific evidence constituting
“severe child abuse” as defined in Tenn Code Ann. § 37-1-102.
          6
              Mother’s psychosexual and parenting assessment defined the lifestyle of Mother and Paul M.
thusly:

          Relevant family history reported indicates that [Paul M., Mother’s] present husband, moved
          into the household with Mr. and Mrs. [Scott C.], [D.C.], and [B.C.] [Mother and Scott C.’s
          second child]. In 2001 Ms. [N.A.] [a witness at Paul M.’s criminal trial] moved in and later
          met her present husband, [L.A.], who subsequently moved into the household. Household
          members practiced a lifestyle of ‘polyamory.’ Polyamory is strictly defined as ‘many loves.’
          While there are variations in the practice of this lifestyle, it is polygamist and each adult
          member of the household is a partner of other adult members in the household. While the
          practice may be sexual or nonsexual, the practice in this household was sexual in nature.
          Reports indicated [Mother] has referred to polyamory as a ‘religion.’ The children are
                                                                                                  (continued...)

                                                      -5-
Mother allowed Paul M. to take her out alone, purportedly to celebrate her birthday, and that
other incidences of abuse took place in a field adjoining the trailer in which they lived or in
a vacant house on the property.7 One of the adult participants in the lifestyle testified that
Paul M. asked Mother for permission to “court” D.C. and to offer D.C. a ring in hopes of
eventually getting her to be one of his three wives.8 Another testified that Paul M. made
“very lewd” comments about young girls in Mother’s presence; that, on one occasion as they
passed a high school car wash while driving to the store, Mother pointed out to Paul M. some
girls that he might be interested in; and that there were pornographic images on the computer.
Mother herself testified that she pointed out “young women” for Paul M.; that there was
pornography in the house with which at least one of the children came into contact; that she
had a profile on a bondage, discipline, and submission and masochism website in which she
recorded herself as the “owned slave” of Paul M. and indicated that one of her favorite
activities was “bottoming,” or taking orders, from men.

       There is clear and convincing proof in this record of relevant facts and circumstances
from which to conclude that Mother knowingly failed to protect her child from conduct
constituting severe child abuse within the meaning of Tenn. Code Ann. § 37-1-
102(b)(23)(A)-(C). “Persons act ‘knowingly’ when they have specific reason to know the
relevant facts and circumstances but deliberately ignore them.” In Re R.C.P., 2004 WL
1567122 at *7. Mother’s participation in the polyamory lifestyle and her master/slave
relationship with Paul M. no doubt colored her perspective of the sexually charged, abusive
and dangerous environment in which the children were being raised, the reality of which
resulted in Paul M.’s abuse of the child. Mother’s conduct constituted willful ignorance of
the facts that were there for her to see.

        Mother contends that, since Paul M. is in jail and upon her assurance that he would
never be involved in the children’s lives, there is no proof that the children would be
“subjected to further abuse or neglect” as contemplated by Tenn. Code Ann. § 36-1-
113(g)(3). This is without merit. Tenn. Code Ann. § 36-1-113(g)(4), the statute upon which
this case is based, does not impose a requirement that the court find that the child or children
will be “subjected to further abuse or neglect.” In any event, we reject Mother’s contention


        6
            (...continued)
        reportedly aware of this lifestyle.
        7
         The proof was that the parties resided on an approximately 50 acre tract of land in rural Marshall
County on which a trailer with five bedrooms and an older farmhouse were located.
        8
          Other proof was that Paul M. and Mother had a “Master/Slave” relationship; that he wanted to
found a church and be its head; that he was going to have three wives, one of whom was Mother and one of
whom would be D.C.

                                                   -6-
that, merely because Paul M. is incarcerated and Mother has promised not to expose the
children to him, grounds for termination have not been shown. As is clear from the proof
recounted above, each of the children were exposed to an environment, based in substantial
part on Mother’s lifestyle choices, that put them at risk of abuse and from which Mother did
not provide them protection. It is Mother’s conduct and choices, as much as Paul M.’s
actions, that violate the statute. The court’s finding that grounds for termination as set forth
in Tenn. Code Ann. § 36-1-113(g)(4) were proven is affirmed.

       B. Best Interest

        Once a ground for termination has been proven by clear and convincing evidence, the
trial court must then determine whether it is in the best interest of the child for the parent’s
rights to be terminated, again using the clear and convincing evidence standard. The
legislature has set out a list of factors at Tenn Code Ann. § 36-1-113(i) for the courts to
consider in determining the child’s best interest.

        In making the determination that termination of Mother’s parental rights was in the
best interest of the children, the trial court noted as follows:

               12. The court has considered all of the best interest factors, which are
       listed in T.C.A. § 36-1-113(i). AMM has undergone a change for the better
       since she came into foster care. She is doing well academically and socially.
       Both children are in the same foster home. The foster parent wishes to adopt
       them. The foster mother will encourage AMM and MJM to visit their sisters
       DC and BC.
               13. It would not be safe for these children to be returned to [Mother].
               14. The mental state of [Mother] would be extremely detrimental to the
       children if they were ever to be placed back with [Mother]. By her own
       admission, [Mother] has low self-esteem. She testified at the Termination of
       Parental Rights trial that she is taking her bipolar medication now after over
       15 years off of same.

Again, Mother does not challenge the evidentiary support for these findings;9 rather, she cites
recent changes in her lifestyle in support of her contention that termination of her rights is
not in the children’s best interest. We disagree.

       Significantly, Mother testified at the termination hearing, held eight months after the
criminal trial of Paul M., that “I still do not believe that my daughter was raped”; that she still

       9
           Our review of the record confirms that each is supported by clear and convincing evidence.

                                                   -7-
talked with Paul M. “frequently”; and that she intended to stay married to him. This is
evidence that answers negatively the inquiry at § 36-1-113(i)(1) of whether the parent “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. . . .” Mother’s refusal or inability to
acknowledge that Paul M. is a pedophile convicted of sexual abuse of one of her children 10
troubled the trial court and is clear and convincing proof that it would not be safe to return
the children to Mother.

        Moreover, the testimony of Dr. Vaughn, the pyschologist who performed the
psychosexual and parenting assessment of Mother, included identification of some of the
complexities throughout Mother’s life, all of which bore significantly on her then current
ability to parent as well as contributed to what Dr. Vaughn characterized as a “dysfunctional”
relationship with D.C.11 Some of these factors included a history of sexual abuse by her
brother during her early childhood; alcoholism, drug addiction and depression on the paternal
side of her family; self-abusive behavior; past psychiatric treatment; and diagnoses of bipolar
disorder and post-traumatic stress syndrome. Dr. Vaughn’s testimony supported the finding
that Mother’s mental state would be extremely detrimental to the children.

IV. Conclusion

     For the foregoing reasons, the judgment terminating Mother’s parental rights is
AFFIRMED.


                                                         _________________________________
                                                         RICHARD H. DINKINS, JUDGE




        10
          The psychosexual and parenting assessment also noted that Mother didn’t accept that sexual abuse
had occurred.
        11
          Inasmuch as Dr. Vaughn had not interviewed the other children he was not able to characterize
Mother’s relationships with them.

                                                   -8-
