                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                             Assigned on Briefs July 9, 2010

                              IN RE BRANDON T. ET AL.

                  Appeal from the Juvenile Court for Sumner County
                    No. 2007-JV-1470      Barry R. Brown, Judge


               No. M2009-02459-COA-R3-PT - Filed September 8, 2010


Parents appeal the trial court’s termination of their parental rights. Because we find that DCS
failed to prove by clear and convincing evidence that it had made reasonable efforts to
address the problems preventing the reunification of the children with their parents, we
reverse.

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

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

Bruce N. Oldham, Gallatin, Tennessee, for the appellant, Elizabeth T.

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,
Department of Children’s Services.

Virginia K. Tompkins, Castalian Springs, Tennessee, Guardian Ad Litem.


                                         OPINION

                        F ACTUAL AND P ROCEDURAL B ACKGROUND

       Elizabeth T. (“Mother”) and Tony T. (“Father”) are the parents of four children,
Brandon T. (born in 2003), Dakota T. (born in 2005), Kelsey T. (born in 2006), and Shyan
T. (born in 2008). The three oldest children came into the custody of the Department of
Children’s Services (“DCS”) on November 8, 2007, after DCS received a referral indicating
that Brandon T. came to school with what appeared to be a handprint on his face. The family
had been living in a car for about two weeks. Father was arrested on one count of child
abuse and three counts of child neglect; Mother was arrested on three counts of child neglect.
DCS filed a dependency and neglect petition and was granted protective custody of the three
children.

       DCS determined that there was no suitable family placement and placed the three
children with a foster family. Shortly after her birth in March 2008, Shyan also came into
DCS custody and was placed with the same foster family. The three oldest children were
adjudicated dependent and neglected on March 18, 2008. Shyan was adjudicated dependent
and neglected on July 22, 2008.

       DCS filed a petition to terminate parental rights on November 7, 2008, against Mother
and Father. The petition included a number of grounds for termination with respect to each
parent. A trial took place over three days in May, June, and October 2009. On November
16, 2009, the juvenile court entered final orders terminating the parental rights of Mother and
Father to their four children. Both parents have appealed.

                   S TANDARDS FOR T ERMINATION OF P ARENTAL R IGHTS

        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.
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
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). A trial court is only required to find one
statutory ground in order to terminate parental rights. In re D.L.B., 118 S.W.3d 360, 367
(Tenn. 2003).

                                              -2-
        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; In re 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. § 36-1-113(c); In re
Valentine, 79 S.W.3d at 546. Clear and convincing evidence “establishes that the truth of
the facts asserted is highly probable, and eliminates any serious or substantial doubt about
the correctness of the conclusions drawn from the evidence.” In re M.J.B., 140 S.W.3d 643,
653 (Tenn. Ct. App. 2004) (citations omitted). Such evidence “produces in a fact-finder’s
mind a firm belief or conviction regarding the truth of the facts sought to be established.”
Id.

        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). Id. at 654. As
to the trial 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.

                                     ISSUES ON A PPEAL

       The trial court found multiple grounds for terminating the parental rights of Mother
and Father. With respect to Mother, the court cited willful abandonment by failure to provide
a suitable home; substantial noncompliance with the permanency plans; and persistence of
conditions. With respect to Father, the court found willful abandonment by failure to visit
or support for more than four months prior to incarceration as well as wanton disregard for
the children’s welfare prior to his incarceration; willful abandonment by failure to provide
a suitable home; substantial noncompliance with the permanency plans; and persistence of
conditions. On appeal, Mother and Father assert that DCS failed to meet its burden of proof
regarding all of these grounds. DCS expressly chose not to address the grounds of
abandonment and substantial noncompliance on appeal, relying solely on the ground of
persistence of conditions. The guardian ad litem’s brief addresses only the grounds of
substantial noncompliance and persistence of conditions. We consider those grounds not
addressed by either DCS or the guardian ad litem on appeal to be waived. Therefore, we
must determine whether clear and convincing evidence supports the termination of Mother’s
and/or Father’s parental rights based upon substantial noncompliance with permanency plans
and persistence of conditions.




                                             -3-
                                               A NALYSIS

        Pursuant to Tenn. Code Ann. § 36-1-113(g)(2), termination of parental rights may be
based upon “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.”1 Tenn. Code Ann. § 36-1-113(g)(3) authorizes the termination of parental
rights under the following conditions:

        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:

        (A) The conditions that led to the child’s removal or other conditions that in
        all reasonable probability would cause the child to be subjected to further
        abuse or neglect and that, therefore, prevent the child’s safe return to the care
        of the parent(s) or guardian(s), still persist;

        (B) 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

        (C) 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.

With respect to both termination grounds, substantial noncompliance under Tenn. Code Ann.
§ 36-1-113(g)(2) and persistence of conditions under Tenn. Code Ann. § 36-1-113(g)(3),
DCS must generally prove by clear and convincing evidence that “it made reasonable efforts
to reunite the family and that these efforts were to no avail.”2 In re Giorgianna H., 205
S.W.3d 508, 518 (Tenn. Ct. App. 2006).




        1
         Tenn. Code Ann. § 37-2-403(a)(2) sets out the requirements for permanency plans. Subsection
(a)(2)(C) states that substantial noncompliance by the parent with the responsibilities listed in the
permanency plan provides grounds for termination of parental rights “if the court finds the parent was
informed of its contents, and that the requirements of the statement are reasonable and are related to
remedying the conditions that necessitate foster care placement.”
        2
        There are exceptions to the requirement of proving reasonable efforts, but they do not apply in this
case. See In re C.M.M., No. M2003-01122-COA-R3-PT, 2004 WL 438326, at *7 (Tenn. Ct. App. Mar. 9,
2004).

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       Factors to be considered by courts in determining the reasonableness of DCS’s efforts
include the following:

        (1) the reasons for separating the parent from his or her children, (2) the
        parent’s physical and mental abilities, (3) the resources available to the parent,
        (4) the parent’s efforts to remedy the conditions that required the removal of
        the children, (5) the resources available to the Department, (6) the duration and
        extent of the parent’s remedial efforts, and (7) the closeness of the fit between
        the conditions that led to the initial removal of the children, the requirements
        of the permanency plan, and the Department’s efforts.

Id.

        In this case, the conditions that led to the children’s removal from the home include
housing instability and the parents’ inability to support them. DCS also points to evidence
of other conditions preventing reunification. With respect to Mother, DCS argues that she
continued to exhibit an inability to adequately parent the children and associated with
inappropriate people.3 With respect to Father, DCS emphasizes his longstanding
unemployment and time in jail in addition to housing instability. For purposes of evaluating
DCS’s efforts at reunification, those services required to resolve the parents’ most pressing
deficits should receive priority. See In re Randall B., Jr., No. M2006-00055-COA-R3-PT,
2006 WL 2792158, at *8 (Tenn. Ct. App. Sept. 28, 2006); In re J.L.E., No. M2004-02133-
COA-R3-PT, 2005 WL 1541862, at *14-15 (Tenn. Ct. App. June 30, 2005).

      As discussed below, our review of the record leads to the conclusion that DCS failed
to meet its burden of proving reasonable efforts by clear and convincing evidence.

                                                    I.

      With respect to the three oldest children, the record does not contain sufficient
evidence to evaluate the reasonableness of DCS’s efforts.

       Tenn. Code Ann. § 37-1-166(c) requires DCS to provide the court with an affidavit
of reasonable efforts:

        To enable the court to determine whether such reasonable efforts have been
        made, the department, in a written affidavit to the court in each proceeding


        3
       These associations include Mother’s stepfather, a convicted sex offender, and her current boyfriend,
who was previously “indicated” by DCS in another county for neglect or abuse.

                                                   -5-
        where the child’s placement is at issue, shall answer each of the following
        questions:

        (1) Is removal of the child from such child’s family necessary in order to
        protect the child, and, if so, then what is the specific risk or risks to the child
        or family that necessitates removal of the child?;

        (2) What specific services are necessary to allow the child to remain in the
        home or to be returned to the home?;

        (3) What services have been provided to assist the family and the child so as
        to prevent removal or to reunify the family?; and

        (4) Has the department had the opportunity to provide services to the family
        and the child, and, if not, then what are the specific reasons why services could
        not have been provided?

There is no pertinent affidavit of reasonable efforts in the record in this case.4 We have
previously determined that DCS’s failure to file an affidavit of reasonable efforts “is not fatal
if the Department introduces competent evidence specifically identifying the services
required in the permanency plan, the services actually provided to the parents, and the
outcomes of these services.” In re C.M.M., 2004 WL 438326, at *8. In this case, however,
the record is also deficient in that the relevant permanency plans are not in the record with
respect to the three oldest children.5

      In its termination petition, DCS cited initial permanency plans dated November 20,
2007, and revised plans dated July 17, 2008. These plans were never introduced into

        4
         The only affidavit of reasonable efforts in the record was completed in April 2008 in conjunction
with the initial removal of Shyan from her parents’ custody.
        5
         This court has previously held that, in order to prevail on a claim of substantial noncompliance with
a permanency plan, DCS must prove the terms of the plan. In re T.N.L.W., No. E2006-01623-COA-R3-PT,
2007 WL 906751, at *4 (Tenn. Ct. App. Mar. 26, 2007); Dep’t of Children’s Svcs. v. D.W.J., No. E2004-
02586-COA-R3-PT, 2005 WL 1528367, at *3 (Tenn. Ct. App. June 29, 2005). Thus, “when DCS is relying
on substantial noncompliance with the permanency plan as a ground for termination of parental rights, it is
essential that the plan be admitted into evidence.” In re T.N.L.W., 2007 WL 906751, at *4; see also In re
A.J.R., No. E2006-01140-COA-R3-PT, 2006 WL 3421284, at *5 (Tenn. Ct. App. Nov. 28, 2006); D.W.J.,
2005 WL 1528367, at *3; State v. B.B.M., No. E2004-00491-COA-R3-PT, 2004 WL 2607769, at *5 (Tenn.
Ct. App. Nov. 17, 2004). Thus, at least with respect to the oldest three children, the ground of substantial
noncompliance could not be established. As noted above, DCS did not address the ground of substantial
noncompliance on appeal, but the guardian ad litem did argue this ground on appeal.

                                                     -6-
evidence, however.6 The record contains an initial permanency plan regarding Shyan but no
initial permanency plans for the other three children. The only permanency plans in the
record with respect to the oldest three children are revised permanency plans dated October
20, 2008, shortly before the filing of the petition for termination on November 7, 2008. At
the hearing, several witnesses testified generally about the permanency plans, but DCS never
gave a detailed account of the plan requirements. Given the absence of an affidavit of
reasonable efforts, relevant permanency plans, or specific proof regarding the permanency
plan requirements, the trial court could not properly determine by clear and convincing
evidence that DCS had met its burden of proof on reasonable efforts regarding the three
oldest children.

                                                 II.

       As to the youngest child, Shyan, the record does contain an initial permanency plan
dated March 26, 2008. Thus, with respect to Shyan, we can determine the services required
under the permanency plan. See In re C.M.M., 2004 WL 438326, at *8.

       Shyan’s permanency plan sets out desired outcomes designed to promote reunification
with parents and specific actions needed to achieve those desired outcomes. With regard to
Father, the desired outcomes are that he will have stable housing, resolve all legal charges,
provide for Shyan, be able to parent Shyan and make sure she reaches milestones, and have
his mental health needs met. As to the first three outcomes, the permanency plan states that
Father is the responsible party for all of the actions needed to achieve the desired outcomes.
With respect to Father’s ability to parent Shyan, the actions needed are for him to undergo
a parenting assessment and follow all recommendations and to be trained in CPR and First
Aid. DCS is a responsible party, along with Father, on both of these actions. On the final
desired outcome related to Father’s mental health, DCS is a responsible party with respect
to two of the needed actions: a clinical assessment and counseling, if recommended.

        What services did DCS actually provide to Father? At the hearing, there was
testimony that DCS gave Father a list of felon-friendly employers and informed him of some
places that were hiring. Kaleesha Simmons, the DCS caseworker for Mother and Father
beginning in April 2008, testified that according to the records left by the previous
caseworker, DCS offered Father services to help him locate housing, but he was living with
a girlfriend and declined services. Father denied being offered assistance by DCS at that
time. Most of the services offered to Father, however, had to do with parenting. While
Father initially declined a parenting assessment, he later completed the assessment.


       6
        From the testimony of Ms. Simmons, the DCS caseworker, it appears that these permanency plans
were never ratified by the court.

                                                 -7-
According to Ms. Simmons, the only recommendation from the parenting assessment was
family counseling. Father was in jail at that time, so DCS provided him with individual
counseling with Cheryl McAdams until her services ended (due to lack of funding).

       Ms. McAdams, an employee of a DCS contractor, testified that she met with Father
several times during his incarceration to help him with his parenting skills but had never been
able to observe him with the children. Once Father was released from jail, the petition for
termination had already been filed and there was no funding available for additional
parenting services. Ms. McAdams was more confident that Father could properly parent than
she was with respect to Mother. She thought it was possible that, if additional parenting
services were available, Father could be reunited with the children. It is not clear from the
record whether Father received a clinical assessment regarding his mental health needs. DCS
did not introduce a parenting assessment or clinical assessment into evidence.

       Shyan’s permanency plan gives the following desired outcomes regarding Mother’s
reunification with the child: Mother is to have stable housing, resolve all legal charges,
provide for Shyan, be able to parent Shyan and ensure she reaches her milestones, and have
her own mental health needs met. On the housing issue, the permanency plan lists three
actions needed, with DCS or its agents having shared responsibility with Mother’s attorney
on the third action: “If the current housing situation does not work out, the team will work
together to identify another housing situation.”7 Mother is the sole responsible person for the
actions needed for resolving her legal charges and providing for Shyan. DCS and Mother
have joint responsibility for the actions required for being able to parent Shyan: Mother is
to undergo a parenting assessment and follow the recommendations and be trained in CPR
and first aid. With respect to the final desired outcome, mental health needs, Mother has the
responsibility for undergoing a clinical assessment and follow the recommendations, while
DCS is responsible for requesting the assessment and providing counseling, if recommended.

       What services did DCS actually provide to Mother? To help Mother with her
parenting skills, Ms. McAdams worked with Mother for several months near the end of 2008,
but DCS discontinued her services when funding ran out. She expressed concern that Mother
did not seem to understand how to implement the skills she was being taught. Ms. McAdams
observed Mother’s interactions with the children and described her as being “disconnected
from the children.” She felt that supervised visits were not appropriate and feared that the
children would be at risk because Mother would not provide adequate supervision. Ms.
McAdams stated that, although her services had been discontinued, she doubted that Mother


        7
         Mother lived at a residential facility for the elderly for a period of time through an arrangement
worked out by Mother’s attorney whereby Mother worked in exchange for a place to live. Mother eventually
chose to leave the facility and move into a rental mobile home paid for in large part by her mother.

                                                   -8-
could improve significantly with further services due to suspected emotional and cognitive
limitations.

       Kristi Yates, an employee of Residential Services, Inc., a DCS contractor, testified
that she supervised visits with both parents. Initially, she provided guidance and support for
Mother to assist her in learning better parenting skills; later on, she was instructed to take a
more observational role to see how Mother would do on her own. Ms. Yates testified that
Mother had trouble engaging with and controlling the children during visits at McDonald’s
and similar locations. She opined that Mother’s visits would improve if they were in a home
environment. She observed that Mother did better when she could supervise one child but
had trouble with all four together.

       Ms. Simmons, DCS caseworker, testified that DCS provided Mother one month’s rent
and one month’s electricity payment after Mother moved into housing in October 2008.8 Ms.
Simmons testified in May 2009 that she took Mother to eight places to apply for employment.
According to Ms. Simmons’s testimony, Mother did participate in a clinical assessment, a
parenting assessment, and anger management.9 She testified that the assessment10 concluded
that Mother was limited in her ability to care for and nurture the children, and if the children
were to be placed in her custody, it was recommended that she have continued in-home
counseling, both individual and family, with specific emphasis on abuse and avoiding contact
between the children and anyone with whom Mother was romantically involved until that
person could participate in family counseling. Ms. Simmons expressed doubt that any further
services would enable Mother and Father to be able to have custody of the children, noting
that neither parent had been able to move to unsupervised visits.

        Although DCS established desirable and appropriate goals in Shyan’s permanency
plan, we do not find clear and convincing evidence that the specific individualized services
identified in the permanency plan and/or provided by DCS constitute reasonable efforts. At
the hearing, Ms. Simmons testified that her biggest concerns about Father were “a legal




        8
         Mother’s mother provided ongoing financial assistance to allow Mother to maintain housing
beginning in October 2008. Mother could not live with her mother because of the presence of her stepfather,
a convicted child abuser.
        9
         No parenting assessments, clinical assessments, or records documenting other services appear in
the record.
        10
          It is unclear whether Ms. Simmons is referring to the clinical interview for mental health purposes
or the parenting assessment.

                                                    -9-
means of income and safe and suitable housing.”11 Yet, on Father’s permanency plan for
Shyan, DCS is not listed as a responsible party with respect to housing or a legal means of
income. DCS provided Father with a list of felon-friendly employers, but this court has
previously stated that DCS “must do more than simply provide the parents with a list of
services and send them on their way.” In re Giorgianna H., 205 S.W.3d at 519. When asked
about the possibility of providing employment rehabilitation and training, Ms. Simmons was
not knowledgeable about the available services.

       According to the testimony of Ms. Simmons, the main barrier to Mother’s
reunification with the children was her apparent inability to provide for their needs. At the
time of the October hearing, Mother had been in her own housing for 13 months with
financial support from her mother. DCS would not accept Mother’s dependence upon her
mother for support because this was not a reliable source. In May 2009, Mother had
provided proof of income12 and a receipt from her landlord for one month, but the
permanency plan required her to do so for three months. Ms. Simmons stated that if the
children were returned to Mother, DCS would accept public assistance as a source of income.
She testified that she did not take Mother to the Department of Human Services to get an
estimate of the resources available to her. On the final day of the hearing in October 2009,
Ms. Simmons stated that she had not provided Mother any more assistance regarding finding
employment (since taking her around to employers prior to the May 2009 hearing).

        We further note that, with respect to Mother, DCS expressed significant concerns
about her parenting abilities.13 In light of Mother’s compliance with the parenting
assessment, visitation, and training, DCS seems to be taking the position that Mother is
incapable of adequately parenting her children. We do not consider the present record to
contain clear and convincing evidence of such irreparable deficits. While several witnesses,
including the parenting trainer, testified about their reservations concerning Mother’s
capacity to supervise and care for the children, the visitation supervisor acknowledged that
Mother might do better in a home environment rather than being at McDonald’s for several
hours. No records from parenting assessments, clinical assessments, or individual counseling
for either parent were presented at the hearing. While Mother may indeed have cognitive and
emotional deficits that impair her ability to care for her children, DCS has failed to provide
clear and convincing evidence to support this claim.


       11
            At the time of the hearing, Father was living with his grandparents.
       12
            Ms. Simmons testified that Mother later lost this job.
       13
         In addition to the witnesses already mentioned, DCS introduced testimony of another residential
case manager concerning Mother’s poor parenting skills at visitations.

                                                     -10-
        Nothing in this opinion should be interpreted as approving the actions of the parents
in this case. The preponderance of the evidence supports the trial court’s factual findings
concerning the deplorable situation of the three oldest children when they were taken into
custody and the continuing instability of the parents at the time of the hearing. We cannot
find, however, based upon the deficient state of the record, that DCS met its burden of
proving by clear and convincing evidence that it made reasonable efforts toward
reunification.

                                       C ONCLUSION

      The judgment of the trial court is reversed. Costs of the appeal are assessed against
DCS, for which execution may issue if necessary.


                                                   _________________________________
                                                   ANDY D. BENNETT, JUDGE




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