                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     May 24, 2001 Session

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN’S SERVICES v.
                     S.S.S., J.S., AND K.S.

                 IN THE MATTER OF: C.S., D.O.B. 01/26/91
                                   C.S., D.O.B. 09/26/94
             CHILDREN UNDER EIGHTEEN (18) YEARS OF AGE


                   An Appeal from the Juvenile Court for Putnam County
                           No. 100491     John Hudson, Judge



                     No. M2000-01248-COA-R3-CV - Filed July 13, 2001


        This case involves the termination of parental rights. The trial court terminated the parental
rights of the mother in her son and daughter, and those of the children’s two separate fathers. The
mother and father of the daughter had been convicted of aggravated child abuse in criminal court.
The mother filed a petition for post-conviction relief, which was denied, and she appealed to the
Court of Criminal Appeals. Both the mother and the father of the daughter appeal the termination
of their parental rights. The mother argues that her conviction for child abuse was not sufficient to
satisfy the statutory grounds for termination of parental rights because it was on appeal, and the
father argues that there was no direct evidence presented that he abused the children. We affirm,
finding ample evidence to support the termination of both parents’ rights.

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

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

William D. Birdwell, Cookeville, Tennessee, for the appellant, S.S.S.

Harvey Douglas Thomas, Algood, Tennessee, for the appellant, J.S.

Paul G. Summers, Attorney General and Reporter, Elizabeth C. Driver, Assistant Attorney General,
for the appellee, State of Tennessee, Department of Children’s Services.
                                              OPINION

         In this case, the trial court terminated the parental rights of S.S.S. (“Mother”), in her two
children, her son, C.S., born January 26, 1991, and her daughter, C.S., born September 26, 1994.
The trial court also terminated the parental rights of J.S. (“Father”), father of the girl and step-father
to the boy. K.S., the father of the boy, never appeared to contest the termination of his parental
rights, and the trial court terminated his parental rights by default judgment. His parental rights are
not at issue in this appeal.

        The boy and girl were first removed from Mother and Father’s custody in June 1997, after
the boy was found home alone, dressed only in his underwear, his legs handcuffed, his arms bound
with duct tape, and his mouth gagged with the hard plastic cover of a baby bottle held in place with
duct tape. Both of the boy’s eyes were beaten and nearly swollen shut. Mother admitted that she
bound and gagged her son and left him home alone while she and Father went to work. The
Department of Children’s Services (“DCS”) removed both children from Father’s custody as well
as Mother’s custody because Father was alleged to have witnessed Mother’s abuse of her son but did
nothing to protect him.

        Immediately after the boy was found bound and gagged, both Mother and Father were
arrested and charged with child abuse. In September 1998, Mother and Father pled guilty to
aggravated child abuse, and each were sentenced to twelve years’ imprisonment. Mother filed a
petition for post-conviction relief, which was denied, and she appealed the denial of her petition to
the Court of Criminal Appeals. Father did not file a petition for post-conviction relief.

        In December 1998, DCS filed a petition to terminate the parental rights of Mother and Father.
As statutory grounds for the termination of their parental rights, the petition alleged that Mother and
Father had abandoned the children, that they had not fulfilled the requirements under the permanency
plans developed by DCS, that the children had been removed from Mother and Father’s custody for
a period of six months and the conditions leading to their removal still existed, that Mother and
Father had committed severe child abuse as defined by Tennessee Code Annotated § 37-1-102
(b)(21) (Supp. 2000), that Mother and Father had been sentenced to more than two years’
imprisonment for conduct against the children, and that Mother and Father had been sentenced to
more than ten years imprisonment while both children were under eight years of age.

        On July 20, 1999, a bench trial was held. At trial, DCS offered as part of its proof the
convictions of Mother and Father for aggravated child abuse and their resulting prison sentences of
twelve years each. Mother objected on the basis that she had appealed the denial of her petition for
post-conviction relief. Father objected on the basis that the conviction did not represent the actual
judgment of the criminal court, but rather was based on Father’s “best interest” guilty plea. Mother
and Father motioned the trial court to exclude the proof, and the trial judge reserved his ruling until
after the parties submitted written briefs.




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        Lori Murphy, the children’s foster mother, testified at trial. Both children had been living
in her home for approximately two years. She described the boy’s condition when he came to live
with her and her husband:

       Severely, severely bruised. He couldn’t hardly open his eyes. You couldn’t tell his
       eye whites from red. He was skin and bones. Scars and scratches and rope burns on
       his neck, and tape still stuck on him. The white stuff from the tape was still on his
       hands and feet. Just bad.

Murphy stated that the boy told her that both Mother and Father physically abused him. The son told
her that Mother and Father punished him by making him eat dog food, that they pushed him down
steps, that Mother threw knives at his legs, and that they handcuffed him to his sister’s bed and told
him to watch his sister while she was sleeping. Murphy testified that the boy’s fear of Mother and
Father was so terrible that once, when she took another foster child to DCS for a family visit, the boy
hid under the seat of her car because he was afraid that Mother and Father were coming to get him.
She also stated that the boy would fight with other children when he first came to live with her, but
that he was now better at playing with other children.

        Murphy testified that the boy told her that Mother and Father often whipped his sister with
a belt when she soiled her pants. Murphy said that the girl often had nightmares and would urinate
on herself when disciplined. When Murphy first shampooed the girl’s hair, she screamed, because
she said that Mother would put soap in her eyes to make her cry. Now, when Murphy shampooed
the girl’s hair, she told Murphy, “You’re the good mommy that don’t put it in my eyes.” Since the
girl had come to live with Murphy and her husband, her nightmares had diminished and she no
longer urinated or soiled her pants when disciplined.

        Murphy stated that both children had bonded with her and with her husband, and that the boy
had referred to them as mom and dad since he first came to their home. She said that the girl
sometimes referred to them as mom and dad. She testified that the children had bonded well with
her three natural children, and that she and her husband were willing to adopt both of them.

         Betsy Dunn, a DCS investigator, testified at the hearing. Dunn stated that when she
interviewed Mother in June 1997, Mother admitted handcuffing her son, binding his arms and legs
together with duct tape, and leaving him home alone. Mother said that she tied him up because they
could not find a babysitter for him. When Dunn asked her what her son could have done in the event
of a fire, Mother commented, “[w]ell, you got me on that one.” When Dunn asked Mother about the
bruises and marks on her son’s face, Dunn said that Mother laughed. Mother explained that her son
had slipped in the bathtub, and was just “bobbing around and laughing” when he bruised his face.
When Dunn told Mother that that this was not funny, Mother responded, “[w]ell, it is funny if you
think about it.” Dunn testified that Father admitted he knew the boy was left at home alone, but that
Father did not admit that he witnessed Mother restraining or beating her son. Dunn said that she
conducted interviews with several relatives, teachers, and others who had contact with the family,
and that she concluded that the boy had suffered severe physical abuse.


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        Dunn testified that DCS developed permanency plans for both children, and that the
requirements were the same for Mother and Father. She stated that neither Mother nor Father
completed parenting classes under the plan, and neither submitted any proof that they had enrolled
in mental health treatment. Dunn said that neither Mother or Father had accepted responsibility for
their actions. Dunn testified that, in her opinion, the conditions leading to the children’s removal
from Mother and Father’s home still existed. She stated that neither Mother nor Father had
acknowledged their abuse or shown any remorse for their actions toward the children. April Norrod,
a DCS case manager, testified that Father had written letters to his daughter while he was
incarcerated, to try to make sure that she did not forget him. Neither Mother nor Father presented
any proof at the hearing.

        On April 3, 2000, the trial court entered a written order terminating Mother’s and Father’s
parental rights. In its order, the trial court stated that it found sufficient evidence that Mother and
Father had abandoned both children, that Mother and Father had failed to satisfy the requirements
under the permanency plans developed by DCS, that the conditions leading to the children’s removal
from the home still existed and were likely to continue, subjecting the children to more harm if they
were returned to their parents’ custody, and that there was little chance the conditions would be
remedied. The trial court noted that Father had not taken any responsibility for his role in abusing
the children. The trial court denied Mother’s and Father’s motion to exclude their convictions for
aggravated child abuse, and admitted the convictions as proof sufficient to show statutory grounds
for the termination of parental rights under Tennessee Code Annotated §§ 36-1-113(g)(4) through
36-1-113(g)(6) (Supp. 2000). The trial court found that termination of Mother’s and Father’s
parental rights was in the children’s best interest. From this order, Mother and Father now appeal.

        On appeal, Mother argues that the trial court erred by admitting proof of her conviction for
aggravated child abuse when the denial of her petition for post-conviction relief was on appeal. She
argues that the trial court erred by finding clear and convincing evidence of the statutory grounds for
termination of parental rights under Tennessee Code Annotated §§ 36-1-113(g)(4) through 36-1-
113(g)(6), because proof of her conviction for child abuse was improperly admitted. Father joins
in Mother’s argument, even though he did not file a petition for post-conviction relief regarding his
conviction for child abuse. Father argues that the weight of the evidence does not support the trial
court’s decision because there was no direct evidence that he abused the children, only his “best
interest” guilty plea to aggravated child abuse.

       Parents have a fundamental right in the care, custody, and control of their children. See
Stanley v. Illinois, 405 U.S. 645, 651-52 (1972); Nale v. Robertson, 871 S.W.2d 674, 678 (Tenn.
1994). This fundamental right is not absolute, however, and may be terminated in certain limited
circumstances. See In re Swanson, 2 S.W.3d 180, 187-88 (Tenn. 1999). The circumstances under
which parental rights may be terminated are set forth in Tennessee Code Annotated § 36-1-113.
Section 36-1-113(c) states that termination of parental rights must be based on:

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


                                                 -4-
       (2) That termination of the parent’s or guardian’s rights is in the best interests of the
       child.

Tenn. Code Ann. § 36-1-113(c) (Supp. 2000). The grounds for termination include:

       (1) Abandonment (section 36-1-113(g)(1));

       (2) Substantial noncompliance with the child’s permanency plan (section 36-1-
       113(g)(2));

       (3) Removal of the child for a period of six months, where the conditions that led to
       the child’s removal persist and there is little likelihood they will be soon remedied
       (section 36-1-113(g)(3));

       (4) The parent has been found to have committed severe child abuse (section 36-1-
       113(g)(4));

       (5) The parent has been sentenced to more than two years’ imprisonment for conduct
       against the child or the child’s sibling (section 36-1-113(g)(5)); and

       (6) The parent has been confined in a correctional facility for a criminal act under a
       sentence of ten or more years at a time when the child is under eight years old
       (section 36-1-113(g)(6)).

Tenn. Code Ann. §§ 36-1-113(g) through 36-1-113(g)(6) (Supp. 2000).

        Regardless of whether Mother’s or Father’s criminal convictions were properly admitted into
evidence, there was ample evidence supporting the termination of both Mother’s and Father’s
parental rights based on other grounds. There was clear evidence presented at trial of abandonment,
the fact that the children had been removed for six months and the conditions that led to removal
persisted and were unlikely to be soon remedied, and substantial noncompliance with the children’s
permanency plans. Considering the horrible conditions under which the children were removed from
the parents’ custody, termination of Mother’s and Father’s parental rights is without question in the
best interest of these children. We find no error in the trial court’s termination of both Mother’s and
Father’s parental rights.




                                                 -5-
        The decision of the trial court is affirmed. Costs of this appeal are taxed to the appellants,
S.S.S. and J.S., and their surety, for which execution may issue if necessary.




                                                       ___________________________________

                                                       HOLLY KIRBY LILLARD, JUDGE




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