       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE                          FILED
                                                               May 20, 1998

                                                         Cecil W. Crowson
                                        )               Appellate Court Clerk
                                        )     Davidson Juvenile Nos.
IN THE MATTER OF:                       )     9619-26026, 9619-26024,
M.W.A., JR., C.D.A., P.C.A.,            )     9619-26025, 9619-16537,
K.M.A., and A.K.A.,                     )     9619-26027
                                        )
      Children under 18 years of age.   )     Appeal No.
                                        )     01A01-9709-JV-00530
                                        )




    APPEAL FROM THE JUVENILE COURT FOR DAVIDSON COUNTY
                  AT NASHVILLE, TENNESSEE

            THE HONORABLE ANDREW J. SHOOKHOFF, JUDGE



For Plaintiff/Appellee:                 For Defendants/Appellants:

John Knox Walkup                        Ronald L. Stone
Attorney General and Reporter           Nashville, Tennessee

Douglas Earl Dimond
Assistant Attorney General




                   AFFIRMED AND REMANDED




                                        WILLIAM C. KOCH, JR., JUDGE
                                     OPINION

       This appeal involves the termination of the parental rights of the parents of five
children between two and seven years of age. After a year of in-home intervention
failed to correct the parents’ serious parenting deficiencies, the Tennessee
Department of Children’s Services filed a petition in Davidson County Juvenile Court
seeking to terminate both the mother’s and the father’s parental rights. Three paternal
relatives intervened in the proceeding seeking custody of the children. Following a
bench trial, the juvenile court terminated the parents’ parental rights and granted
permanent custody of the children to the Department rather than to their paternal
relatives. On this appeal, the parents and their relatives assert that the Department
failed to prove grounds for termination by clear and convincing evidence and that the
trial court erred in finding that placement of the children with their relatives would
not be in their best interests. We affirm the judgment terminating the parents’
parental rights and placing the children in the Department’s custody.


                                              I.


       In late 1995, J.R.A. and her husband M.W.A., Sr. lived in Nashville with their
four children and another older child of J.R.A.’s relationship with another man. The
oldest child, A.M., was 12 years old and the four younger children were between the
ages of one and four.1 The Department of Children’s Services became involved with
the family after receiving reports that J.R.A. and M.W.A., Sr. were physically abusing
A.M. The Department continued to provide services to the parents through mid-1996
when their fifth child, A.K.A., was born.2


       During this time, the family was living in abject poverty in conditions
described by their case manager as the worst she had ever seen. The family lived in
substandard housing and slept together in the only room with heat. M.W.A., Sr. slept
on the couch and J.R.A. and the children slept on the floor. Both M.W.A., Sr. and


       1
        M.W.A., Jr. was born on July 23, 1991; C.D.A. was born on September 7, 1992; P.C.A. was
born on October 11, 1993; and K.M.A. was born on October 14, 1994.
       2
           A.K.A. was born on May 10, 1996.

                                              -2-
J.R.A. come from abusive families. They have little education and borderline
intellectual functioning. Their children suffer from severe developmental delays. At
the time of the Department’s first intervention, the three older boys had not developed
any verbal skills and communicated by hand gestures and single syllables. K.M.A.
had not yet learned to walk.


       In June 1996, the Department petitioned the Davidson County Juvenile Court
alleging that all six of the children were dependent and neglected. The Department
requested the juvenile court to remove A.M. from the home because of severe
physical and psychological abuse.3 The juvenile court referee removed A.M. from
the home, and he was later placed with his aunt and uncle. The referee also found
that M.W.A., Jr., C.D.A., P.C.A., and K.M.A. were dependent-neglected and abused,
and that A.K.A. was dependent-neglected. However, the referee permitted the
children to remain in the home as long as M.W.A., Sr. and J.R.A. made progress in
improving their parenting skills, continued to cooperate with in-home services, and
complied with the other terms contained in the court’s order.


       The family continued to receive assistance from four different agencies,
including ten hours of in-home intervention each week to improve parenting skills,
transportation, visits by the HUGS nurse, psychological evaluations, and WIC
nutritional help. However, just two weeks after A.M.’s removal from the home, a day
care worker observed J.R.A. beating her children about their heads and bodies with
a wooden branch while she cursed and screamed at them. On June 28, 1996, the
referee granted the Department’s petition for temporary custody and emergency
removal of the remaining children. All of the children were placed in the custody of
a foster family, and the Department developed a plan of care with a goal of
reunification for the family.


       After three months, the referee reviewed the case and found that the children
were improving in foster care but that J.R.A. and M.W.A., Sr. had not yet acquired
the necessary parenting skills and knowledge to care for the children. In the next
review, the referee noted that the parents had made some progress in learning to



       3
         The Department proved that M.W.A., Sr. had given A.M. a black eye and that both M.W.A.,
Sr. and J.R.A. had ostracized him from the rest of the family.

                                              -3-
nurture, to interact, and to react less aggressively, and had moved into a clean, well-
furnished home. However, one caseworker concluded that the parents still had a lot
to learn and that the number of children and their high level of activity posed a
continued problem for the parents. The other caseworker recommended adoption
after concluding that it was doubtful that J.R.A. and M.W.A., Sr. could ever learn the
skills necessary to care for all five children.


      On February 21, 1997, T.G., the children’s paternal aunt, filed a petition for
temporary custody of the two youngest boys, P.C.A. and A.K.A. On February 26,
1997, the Department petitioned to terminate J.R.A.’s and M.W.A.,Sr.’s parental
rights because of severe child abuse [Tenn. Code Ann. § 36-1-113 (g)(4) (1996)] and
persistence of conditions that caused the initial removal [Tenn. Code Ann. § 36-1-113
(g)(3)(A) (1996)]. On April 1, 1997, P.A., the children’s uncle, filed a petition
seeking temporary custody of K.M.A., and C.A., the children’s grandmother, filed a
petition for temporary custody of M.W.A., Jr. and C.D.A.


      Following a five-day trial, the juvenile judge terminated J.R.A.’s and M.W.A.,
Sr.’s parental rights because they remained unable to “perceive and respond to the
depth of the children’s problems” and were unwilling to “recognize and acknowledge
their own abusive and neglectful behaviors.” The judge found that the overwhelming
credible testimony established that the children had been abused and neglected and
that J.R.A. and M.W.A., Sr. were simply not competent to raise them. The judge also
declined to place any of the children with their paternal relatives because of (1) the
relatives’ failure to come forward when the children were first removed, (2) concerns
about the environments in the relatives’ homes and their stated intention to return the
children to J.R.A. and M.W.A., Sr., (3) hesitancy to split up the children by placing
them in three separate homes, and (4) the close relationship between the children and
their foster parents. J.R.A. and M.W.A., Sr. and their relatives take issue with both
of the juvenile court’s conclusions.




                                           II.


      Because the decision to terminate parental rights involves fundamental
constitutional rights, see O’Daniel v. Messier, 905 S.W.2d 182, 186 (Tenn. Ct. App.

                                           -4-
1995), the courts must find that the Department has established by “clear and
convincing evidence” the statutory grounds required to terminate the parents’ parental
rights. See Tenn. Code Ann. § 36-1-113 (c)(1) (1996); State Dept. of Human Servs.
v. Defriece, 937 S.W.2d 954, 960 (Tenn. Ct. App. 1996). This heightened standard
of review serves to prevent the unwarranted termination or interference with the
biological parents’ rights to their children.


      Parental rights can be terminated in only a limited number of statutorily
defined circumstances and then, only if a court determines that termination is in the
child’s best interests. See Tenn. Code Ann. § 36-1-113 (c)(2) (1996). Parental rights
may be terminated only when continuing the parent-child relationship poses a
substantial threat of harm to the child. See Petrosky v. Keene, 898 S.W.2d 726, 728
(Tenn. 1995). As pertinent in this case, Tenn. Code Ann. § 36-1-113 (g)(3)(A) (1996)
allows the termination of parental rights if (1) the child has been removed from the
home of the parent by court order for six months and (2) the conditions which led to
the removal or other similar conditions still persist, are unlikely to be remedied in the
near future, and the continuation of the parent-child relationship greatly diminishes
the child’s chances of early integration into a stable and permanent home. In
addition, Tenn. Code Ann. § 36-1-113(g)(4) (1996) provides that severe child abuse
against the child who is the subject of the petition or against the child’s sibling or
half-sibling is grounds for termination of parental rights.


      The juvenile judge found that the Department established by clear and
convincing evidence two grounds for terminating J.R.A.’s and M.W.A., Sr.’s parental
rights – persistence of conditions and severe abuse of A.M. We agree. The evidence
presented to the juvenile judge overwhelmingly shows that A.M. was abused and that
his removal from the home, as well as the removal of the other children, was proper.




                                           A.
                                EVIDENCE OF ABUSE


      The record contains two findings that J.R.A. and M.W.A., Sr. abused A.M.
The referee made the initial finding when A.M. was first removed from the home, and

                                          -5-
the juvenile judge made the second finding when he concurred with the referee’s
findings following an evidentiary hearing. There was testimony at both hearings that
(1) both parents had ostracized A.M. by forcing him to take his meals alone away
from the family and (2) specific acts of abuse were perpetrated by M.W.A., Sr.,
including giving A.M. a black eye, dangling him from a second-story balcony,
throwing him into the air and letting him fall to the ground, placing him on the hot
hood of a car, picking off his scabs and pouring alcohol in the wounds, and
threatening his genitals with wire pliers.


       The record also contains evidence of abuse of the other children. Two weeks
after A.M. was removed from the home, a day care worker observed J.R.A. beating
the children with a stick while she cursed and screamed at them. Based on this
evidence, we find that the Department has proved clearly and convincingly that
J.R.A. and M.W.A., Sr. have abused their children in violation of Tenn. Code Ann.
§ 36-1-113(g)(4).4


                                               B.
                                 PERSISTENT CONDITIONS


       The juvenile judge also concluded that J.R.A. and M.W.A., Sr. “are not now,
and will not in the foreseeable future, be able to adequately parent all five children
on their own.” When the children were first removed from their parents’ home, they
were severely developmentally delayed and practically unmanageable. The children
had not achieved any of the appropriate developmental milestones because of their
parents’ neglect, and their failure to thrive was startling to even the most experienced
case workers.


       Both service providers who evaluated J.R.A. and M.W.A., Sr. concluded that
they lacked the parenting skills necessary to provide all five children with a safe,
nurturing environment. Although the parents have improved their living conditions


       4
        Severe child abuse may consist of specific acts of brutality, abuse, or neglect, see Tenn.
Code Ann. § 37-1-102(b)(21)(B) (1996), or the knowing exposure of a child or the knowing failure
to protect a child from abuse or neglect that is likely to cause great bodily harm. See Tenn. Code
Ann. § 37-1-102(b)(21)(A).

                                               -6-
with a clean, well-furnished home, they have not demonstrated that their parenting
skills have improved or will likely improve in the near future even with additional
support. Even the case manager who was most favorable to the parents concluded
that, at best, they might be able to parent one or two of their children in the future if
their parenting skills improved.


      The parents’ lack of progress in improving their parenting abilities is
exacerbated by their steadfast refusal to recognize their own shortcomings. They
continue to insist on downplaying their children’s lack of language skills by saying
that they are simply developing a language of their own. They also continue to insist
that they are presently able to care for all five children and that the children should
never have been removed from their home in the first place.


      The children have thrived in their foster home and now have an opportunity to
timely integrate into a stable, healthy environment. Because there is no evidence that
J.R.A. and M.W.A., Sr. have corrected the conditions that led to the children’s
removal or that they have the ability to do so in the near future, we have determined
that termination of their parental rights is supported by clear and convincing evidence
of persistent conditions.


                                           III.


      The juvenile judge also determined that placing the children with their paternal
relatives, rather than with their foster family, would not be in the children’s best
interests. We agree for three reasons. First, the relatives ignored the serious
parenting deficits of J.R.A. and M.W.A., Sr., as evidenced by their failure to
intervene at the time of removal and their stated desire to return the children to their
parents. Second, placing the children with their relatives would require sending them
to three different homes, one of which is located out of state. Third, the evidence also
calls into question the fitness of the relatives’ homes. Both the paternal grandmother
and the paternal uncle have already had problems with the Department relating to the
care of their own children. The paternal aunt and her husband initially indicated that
they had their hands full raising five children of their own. Most importantly, all of
the relatives testified that it was their plan to keep the children temporarily until they

                                           -7-
could be returned to J.R.A. and M.W.A., Sr. Based on our review of the record, we
concur with the juvenile judge’s conclusion that the record contains clear and
convincing evidence that the children’s interests will be served best by permitting
them to remain with their present foster family instead of with their paternal relatives.


                                          IV.


      We affirm the judgment terminating the parental rights of J.R.A. and M.W.A.,
Sr. and remand the case to the juvenile court for whatever further proceedings may
be required. We tax the costs of this appeal to the Tennessee Department of
Children’s Services.


                                                ______________________________
                                                WILLIAM C. KOCH, JR., JUDGE


CONCUR:


___________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION



___________________________________
BEN H. CANTRELL, JUDGE




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