                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                               Assigned on Briefs July 25, 2005

STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v.
                  M.C.M.M.C. and M.E.C.

                      Appeal from the Juvenile Court for Sullivan County
                        No. J29,614    James H. Beeler, Special Judge


                No. E2005-00390-COA-R3-PT - FILED SEPTEMBER 7, 2005


This is a parental rights termination case. The father appeals the trial court’s decision terminating
his parental rights to his three children. The father argues, inter alia, that the evidence preponderates
against the trial court’s finding that grounds for termination exist and that termination is in the best
interest of the children. We conclude that the evidence preponderates against the decision of the trial
court and therefore, we reverse.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed; Case
                                        Dismissed

SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS , P.J., and
CHARLES D. SUSANO , JR., J., joined.

James F. Taylor, Mt. Carmel, Tennessee, for the Appellant, M.E.C..

Paul G. Summers, Attorney General and Reporter, and Amy T. Master, Assistant Attorney General,
Nashville, Tennessee, for the Appellee, State of Tennessee Department of Children’s Services.

                                             OPINION

                                                   I.

       This appeal involves the termination of the parental rights of M.E.C. (“Father”) to his three
children: E.T.N.C.. (born on January 8, 1999), M.E.C., Jr. (born on November 14, 2000), and
T.R.M.C. ( born on October 4, 2001).

        Father and M.C.M.M.C. (“Mother”) were married in July of 1999. On October 25, 2001,
while Father was driving a vehicle, accompanied by Mother and their two oldest children, he noticed
a police car behind. Father, who according to his testimony had consumed a quart of beer, got
“nervous and paranoid” and tried to outrun the police officer. A chase ensued and Father drove
through a construction zone, ran a red light and his vehicle was struck by another vehicle.
Fortunately, no one was injured. Father attempted to flee on foot, but was apprehended and arrested
on multiple charges. While Father was in jail, Mother was arrested on other charges and no one was
available to care for the children.

        On November 29, 2001, the children were placed in the protective custody of the State of
Tennessee, Department of Children’s Services based on allegations that the children were dependent
and neglected due to their parents’ incarceration. After being released from jail, Father and Mother
signed a permanency plan on December 19, 2001. The plan required, among other things, that Father
and Mother would provide age-appropriate food to their children; maintain adequate housing;
provide age-appropriate childcare for the chilren in the parents’ absence; meet the children’s medical
needs; complete parenting classes; attend therapy for parenting skills; complete a parenting
assessment; obtain employment; follow the rules and regulations of the court pertaining to their
current charges and become law-abiding citizens; have reliable transportation; obtain their GED;
work with the Appalachian Non-Custodial Parenting Project; and Father would not use illegal drugs
or alcohol and would maintain sobriety. A similar plan was subsequently signed by Father and
Mother on November 21, 2002. Referrals were made to various agencies to assist the parties. For
a period of time Father complied with the plan. He worked with homemaker services; maintained
stable housing; attended and completed parenting classes; obtained employment; got his GED; had
an alcohol and drug assessment; and participated in an alcohol treatment program. According to his
case worker, he did everything that was asked of him.

        However, sometime in mid-2002, things began to unravel for Father when he and Mother
began to have marital problems. Father claimed Mother had multiple boyfriends and was out
“running the roads.” Although Father and Mother were separated, they did not tell this to their
caseworker. Father lived in a motel and with friends for several months. Mother and Father were
together during visits with their children and the caseworker believed they were still together. On
June 22, 2002, Mother called 911 and reported that Father was causing a disturbance. The Kingsport
Police Department responded and arrested Father for public drunkenness. The officer’s report noted
that father had a “strong odor of alcohol about his person[,] unsteady on his feet[,] speech slurred.”
Father denied being intoxicated and claimed that Mother had him arrested so that he would go to jail
and her boyfriend could move into the home. Father was neither tried nor convicted of the charge.

        On November 21, 2002, Father pleaded guilty to fourteen criminal charges arising from the
October 25, 2001 car chase: evading arrest, driving under the influence, aggravated assault, three
counts of reckless endangerment, two counts of child endangerment, obstruction of law enforcement,
assault, disregard of road construction signs and barricade, disregard of traffic control signs,
possession of open container of alcohol, and violation of the seat belt law. Father began serving a
six-year sentence on April 11, 2003 and he was incarcerated at the time of the termination hearing.
He anticipated a parole date in January of 2005.

       On May 12, 2004, the Department of Children’s Services (“DCS”) filed a petition to

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terminate the parental rights of Father and Mother to their three children. Following a hearing on
November 10, 2004, the trial court terminated Father and Mother’s parental rights to the children
based on the trial court’s determination that clear and convincing proof had been presented that there
had been substantial noncompliance with the permanency plan by Father and Mother; that the
children had been removed from the home by court order for a period of six months; and that Father
and Mother had failed to remedy the conditions which led to the children’s removal. Father appeals
and argues that the trial court erred in terminating his parental rights to his three children. Mother
did not participate in the trial and did not appeal.

                                                     II.
                                             Standards of Review

        We review the trial court’s findings of fact de novo upon the record of the proceedings below,
with a presumption of correctness “unless the preponderance of the evidence is otherwise.” Tenn.
R. App. P. 13(d); see also Hass v. Knighton, 676 S.W.2d 554 (Tenn. 1984). There is no presumption
of correctness with regard to the trial court’s conclusions of law, and those conclusions are reviewed
de novo. Jahn v. Jahn, 932 S.W.2d 939 (Tenn. Ct. App. 1996).

        A biological parent’s right to the care and custody of his or her child is among the oldest of
the judicially recognized liberty interests protected by the due process clauses of the federal and state
constitutions. Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2059-60 (2000); Hawk v. Hawk,
855 S.W.2d 573, 578-579 (Tenn. 1993); Ray v. Ray, 83 S.W.3d 726, 731 (Tenn. Ct. App. 2001).
Although this right is fundamental and superior to claims of other persons and the government, it
is not absolute. State v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). It continues without
interruption only as long as a parent has not relinquished it, abandoned it, or engaged in conduct
requiring its limitation or termination. Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). It is
well established that "parents have a fundamental right to the care, custody, and control of their
children.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988)(citing Stanley v. Illinois, 405
U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). However, this right is not absolute and parental
rights may be terminated if there is clear and convincing evidence justifying such termination under
the applicable statute. Id.

        Termination proceedings are governed by statute in Tennessee. Parties who have standing
to seek the termination of a biological parent’s parental rights must first prove at least one of the
statutory grounds for termination. Tenn. Code Ann. § 36-1-113(c)(1). Secondly, they must prove
that termination of the parent’s rights is in the child’s best interest. Tenn. Code Ann. § 36-1-
113(c)(2). Because the decision to terminate parental rights has profound consequences, courts must
apply a higher standard of proof in deciding termination cases. Therefore, to justify termination of
parental rights, the party seeking termination must prove by clear and convincing evidence the
ground (or grounds) for termination and that termination is in the child’s best interest. Tenn. Code
Ann. §36-1-113(c)(1); In re Valentine, 79 S.W. 3d 539, 546 (Tenn. 2002).

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         The heightened burden of proof minimizes the risk of erroneous decisions. In re C.W.W.,
37 S.W.3d 467, 474 (Tenn. Ct. App. 2000); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App.
1998). Evidence satisfying the clear and convincing evidence standard establishes that the truth of
the facts asserted is highly probable, State v. Demarr, No. M2002-02603-COA-R3-JV, 2003 WL
21946726, at *9 (Tenn. Ct. App. Aug. 13, 2003) no appl. perm. filed, and eliminates any serious or
substantial doubt about the correctness of the conclusions drawn from the evidence. In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002); In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re
J.J.C., 148 S.W.3d 919, 925 (Tenn. Ct. App. 2004). It produces in a fact-finder’s mind a firm belief
or conviction regarding the truth of the facts sought to be established. In re A.D.A., 84 S.W.3d 592,
596 (Tenn. Ct. App. 2002); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W.,
37 S.W.3d at 474.

        Courts terminating parental rights are explicitly required to “enter an order which makes
specific findings of fact and conclusions of law.” Tenn. Code Ann. § 36-1-113(k). These specific
findings of fact and conclusions of law facilitate appellate review and promote just and speedy
resolution of appeals. When a lower court has failed to comply with Tenn. Code Ann. § 36-1-
113(k), the appellate courts must remand the case with directions to prepare the required findings
of fact and conclusions of law. In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).

                                                  III.
                                         Grounds For Termination

                         A. Substantial Noncompliance with the Permanency Plan

        The trial court terminated Father’s parental rights to his children based on its determination
that he had failed to comply with the permanency plan pursuant to Tenn. Code. Ann. § 36-1-113
(g)(2) which provides for termination in the event that:

                (2)There has been substantial noncompliance by the parent or
                guardian with the statement of responsibilities in a permanency plan
                or a plan of care pursuant to the provisions of title 37, chapter 2, part
                4[.]

         Substantial compliance with the statement of responsibilities in a child’s permanency plan
is essential. In order for the trial court to terminate parental rights pursuant to this ground, DCS must
first demonstrate that the requirements of the parenting plan with which Father is expected to comply
are reasonable and related to remedying the conditions that caused the child to be removed from the
parent’s custody in the first place; and Father’s noncompliance is substantial in light of the degree
of noncompliance and the importance of the particular requirement that has not been met. Minor,
trivial, or technical deviations from a permanency plan will not be deemed to amount to substantial
noncompliance. In re M.J.B., 140 S.W.3d at 665-657.

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       The trial court made the following findings of fact to support its finding of Father’s
substantial noncompliance with the plan:
                1. Father had continued to consume alcoholic beverages as evidenced by his arrest
for public intoxication.
                2. Father and Mother were not residing together in the same home, but both were
present in the home during visits with the children so as to deceive DCS by giving the false
impression that they were living together.
                3. Father had not maintained a stable home and tried to resolve the marital problems.

        We will discuss each basis of the trial court’s decision in turn. The permanency plan dated
November 21, 2001 required Father to “not use ... alcohol. He will obtain and maintain sobriety.”
The revised permanency plan dated December 19, 2002 provided that he would maintain sobriety
and attend AA. These requirements were certainly reasonable and related to the conditions that
caused the children to be removed from the home given Father’s alcohol-involved flight from police
which endangered his wife and two children on October 25, 2001.

         However, DCS failed to present clear and convincing proof of Father’s noncompliance with
this provision of the plan. The evidence before the trial court of Father’s alcohol usage was a
certified copy of a Kingsport Police Department Offense Report dated June 22, 2002 indicating an
arrest of Father for public drunkenness and containing statements by the officer. The officer did not
testify. Mother, who had called 911, did not testify. No one testified to Father’s consumption of
alcohol on that date. The June 22, 2002 event is the only incident alluded to at trial of Father’s
alcohol consumption subsequent to the execution of the permanency plans. The only testimony came
from Father who swore that Mother came by his house on that date, claimed she smelled alcohol,
went to a neighbor’s house, and called the police. He claimed she was “lying on him” to get him
“locked up” so she could live with her boyfriend. Father never admitted that he had been drinking
alcohol on that day. He had not been tried or convicted of the charges in the 2½ years since his arrest
on the charges.

         Christie Vaughn, a DCS caseworker who was involved in the case, testified that Mother had
told her that Father was drinking alcohol and physically abusing her. It is clear from the transcript
of the hearing that the evidence presented regarding Father’s alleged drinking consisted of rank
hearsay. Although it was not objected to by Father’s counsel, we do not consider it appropriate to
terminate Father’s parental rights based, in part, on hearsay evidence that should properly have been
excluded as inadmissible. The trial court’s final decree states and finds “[t]hat [Mother] testified that
[Father] was abusive in the home when he was intoxicated, which [Father] has denied.” This finding
is clearly erroneous. The transcript reflects that Mother left the courtroom shortly after the hearing
began, did not return, and did not testify. The evidence preponderates against a finding that Father
failed to substantially comply with the permanency plan by not maintaining his sobriety.



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        The second basis for the trial court’s ruling was while Father and Mother were not residing
together, but they were together during visits with their children and led DCS caseworkers to believe
that they were living together. The permanency plan does not address this issue, and therefore there
was no basis for the trial court to conclude that Father had failed to comply with this part of the plan.

        The third basis for the trial court’s ruling was that Father and Mother had “not maintained
a stable home and tried to resolve their marital problems.” Father admitted that prior to his serving
time for the convictions resulting from the car chase and accident, he spent several months living in
a motel and with friends. Father’s testimony was to the effect that the primary reason for the
unraveling of the marriage, and the consequent instability of his housing situation, was Mother’s
infidelity and her relationships with various boyfriends. At trial, DCS did not present evidence
contradicting this assertion. There is no evidence in the record tending to show that Father has failed
to make a reasonable effort to maintain what domestic stability he could. The fact that the marriage
effectively fell apart, in the absence of a showing that Father was at fault, is not a sufficient ground
for terminating Father’s parental rights.

       Accordingly, it is our determination that the evidence preponderates against the trial court’s
conclusion that there was clear and convincing evidence that Father had failed to substantially
comply with the permanency plan.

                      B. Removal for Six Months and Failure to Remedy Conditions

      The second ground relied on by the trial court to terminate Father’s parental rights was Tenn.
Code Ann. § 36-1-113(g)(3)(A) which provides:

                (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 safe 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 child can be safely returned to the parent(s)
                or guardian(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 safe,
                stable and permanent home.

       It is not disputed that the children have been removed from the home of Mother and Father
by court order for a period of more than six months. It is apparent that the primary condition that

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led to the children’s removal was the fact that both Mother and Father were incarcerated. The record
does not show exactly when Mother was released from jail, although she was not incarcerated at the
time of the hearing. But Mother has shown very little interest in her children or in preserving her
parental rights in this case. Importantly, at the time of the hearing, Father presented evidence that
he had an upcoming parole hearing some two months after the hearing. The trial court itself
remarked during the hearing that “he’s only got a few months left to finish his sentence.” Therefore,
the evidence preponderates against a finding that the condition of Father’s incarceration was not
likely to be remedied “at an early date” so that the children could be safely returned to Father in the
near future. Tenn. Code Ann. § 36-1-113(g)(3)(A)(ii).

        As regards the other “conditions” which arguably led to the removal of the children, we
reiterate the testimony of the DCS caseworker that Father made significant progress in fulfilling the
requirements of the permanency plan. Father earned his GED to satisfy the permanency plan. He
obtained stable transportation, got a job, and remained employed until the day he began serving his
sentence. He participated in and completed parenting and homemaking classes, and alcohol and drug
abuse counseling. In short, the evidence demonstrates that Father made considerable efforts to
improve himself, his situation, and his parenting skills in furtherance of the permanency plan. The
children’s appointed guardian ad litem recognized this, stating to the trial court as follows:

               Concerning the mother, Your Honor, I believe she walked out, and
               that shows her position on this case. [Father] decided to stay here and
               have a trial, and during that trial he got on the witness stand and told
               his side of the story. Now as Judge, you’re to give weight to whoever
               you see fit, but at this time I’m not sure – I know I need to give an
               opinion, but one thing that holds me up is that the kids have been
               away for three years, and that bothers me, but at the same time,
               [Father] has done, seems to me, whatever he’s been asked except for
               a few instances and that he’s trying. The one I found not trying
               walked out the door. The one that is trying I believe is still here.

               If I can get over the fact that the children have been away for three
               years, I would be in favor of [Father] getting the kids back, but at this
               time, that’s the only thing holding up my being in his favor.

        We hold that the evidence preponderates against the trial court’s conclusion that there was
clear and convincing evidence that the requirements of Tenn. Code Ann. § 36-1-113(g)(3)(A) were
met in this case.

                                                 IV.
                                   Best Interests of the Children



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        “The ultimate goal of every proceeding involving the care and custody of a child is to
ascertain and promote the child’s best interests.” In re Audrey S. & Victoria L., No. M2004-02758-
COA-R3-PT, 2005 WL 2051286 at *26 (Tenn. Ct. App. M.S., filed Aug. 25, 2005). As this court
stated in In re Audrey S.,
               In recent years, the Tennessee General Assembly, like other state
               legislatures, has undertaken to codify the factors that courts should
               consider when called upon to ascertain a child's best interests in
               various circumstances. In termination of parental rights cases such as
               this one, the General Assembly has provided the courts with a non-
               exclusive list of nine factors to consider. Tenn.Code Ann. § 36-1-
               113(i). Thus, ascertaining a child's best interests in a termination
               proceeding is a fact-intensive inquiry requiring the courts to weigh
               the evidence regarding the statutory factors, as well as any other
               relevant factors, to determine whether irrevocably severing the
               relationship between the parent and the child is in the child's best
               interests.
                       *                       *                       *

               Ascertaining a child's best interests does not call for a rote
               examination of each of Tenn.Code Ann. § 36-1-113(i)'s nine factors
               and then a determination of whether the sum of the factors tips in
               favor of or against the parent. The relevancy and weight to be given
               each factor depends on the unique facts of each case. Thus, depending
               upon the circumstances of a particular child and a particular parent,
               the consideration of one factor may very well dictate the outcome of
               the analysis.

In re Audrey S., 2005 WL 2051286 at *27. In this case, DCS presented scant, if any, evidence
tending to show that it would be in the children’s best interest to terminate Father’s parental rights.
This is reflected in the guardian ad litem’s testimony cited above. The foster mother of the children
testified that she observed Father’s interaction with his children during visitation. She testified that
Father “obviously cared, loved them a lot” and that the children seemed to respond well to him. She
stated that she did not see anything that caused her to have any concerns about Father’s quality of
care or interactions with the children. We hold that the evidence preponderates against the trial
court’s conclusion that there was clear and convincing evidence demonstrating that termination of
Father’s parental rights would be in the best interests of his children.


                                                   V.
                                             Conclusion


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        As this court has noted on prior occasions, "termination of a person's rights as a parent is a
grave and final decision, irrevocably altering the lives of the parent and the child involved 'severing
forever all legal rights and obligations' of the parent." Means v. Ashby, 130 S.W.3d 48, 54 (Tenn. Ct.
App. 2003) (quoting Tenn.Code Ann. § 36-1-113(l)(1)(2003); In re M.A.R., No. E2005-00255-COA-
R3-PT, 2005 WL 1922570 at *5 (Tenn. Ct. App. E.S., filed Aug. 11, 2005). “No civil action carries
with it graver consequences than a petition to sever family ties irretrievably and forever.” In re
A.L.B., No. M2004-01808-COA-R3-PT, 2005 WL 1584065 at *7 (Tenn. Ct. App. M.S., filed July
6, 2005).

        We hold that the evidence preponderates against the trial court’s conclusion that the statutory
requirements of Tenn. Code Ann. § 36-1-113(g)(2) and 36-1-113(g)(3)(A) and were demonstrated
by clear and convincing evidence in this case. We further hold that the trial court erred in finding
that DCS had proven by clear and convincing evidence that termination of Father’s parental rights
was in the best interests of the children.


        Accordingly, for the aforementioned reasons, the judgment of the trial court is reversed and
the case is dismissed and remanded for collection of costs. The costs are taxed to the Appellee, State
of Tennessee Department of Children’s Services, for which execution may issue if necessary.




                                                       ____________________________________
                                                       SHARON G. LEE, JUDGE




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