                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON

                                   January 12, 2005 Session

                      IN THE MATTER OF D. B. (d.o.b. 6/2/01)

 STATE OF TENNESSEE DEPARTMENT OF CHILDREN'S SERVICES v.
         RAMONA BOKAN AND AIRE THOMAS DAILEY

                    An Appeal from the Juvenile Court for Benton County
                             No. 3253    Clyde Watson, Judge



                     No. W2004-01915-COA-R3-PT - Filed June 13, 2005


This case is about termination of parental rights. The father was incarcerated, and the mother lived
in a mobile home in abysmal conditions, with no telephone and no transportation. The child was
born on the floor of the mobile home and hospitalized shortly thereafter. Due to the poor living
conditions, the State took custody of the child. Over the next three years, the mother and father
worked with the Department of Children’s Services in an attempt to remedy the conditions that
prevented the child’s return. These conditions included alcohol and drug abuse and domestic
violence. The juvenile court found that the parties continued to engage in physical abuse, and that
the mother nevertheless continued to live with the father, creating unsafe living conditions for the
child. The juvenile court terminated the parental rights of both parents, finding that the conditions
that precluded the child’s safe return to the home still persisted after three years and would likely
continue. The mother appealed. We affirm, finding that the evidence supports the juvenile court’s
finding of persistent conditions.

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

HOLLY M. KIRBY , J., delivered the opinion of the Court, in which W. FRANK CRAWFORD , P.J., W.S.
and DAVID R. FARMER , joined.

Ronald E. Darby, Camden for the respondent/appellant Ramona Bokan

Sharon G. Hutchins, Office of the Attorney General for petitioner/appellee State of Tennessee
Department of Children's Services
                                                     OPINION

        On the day the child in this case was born, June 2, 2001, her mother Ramona Bokan
(“Mother”) lived in a mobile home with no running water, no septic system, and no air conditioning.
The mobile home had electrical wires hanging from the ceiling and dog feces on the floor;
asphyxiating sewage fumes emanated from the nonfunctioning bathroom, blocked only by a door that
Mother had removed from its hinges and placed in the hallway. The child’s father, Aire Thomas
Dailey (“Father”), lived with Mother but they were not married. Father had an extensive criminal
history, including charges for the rape of a child, involving one of Mother’s other two daughters.1
On the day the child was born, Father was incarcerated.

        The child, D.B., was born on the floor of that mobile home. Because Mother had no
telephone and no transportation, after she gave birth to D.B., Mother walked to a neighbor’s house
for help. From there, an ambulance transported D.B. to the hospital, where she was placed on a
ventilator.

      While D.B. was in the hospital, Mother came to the hospital for an overnight stay with her.
When Mother arrived, she had been drinking, and the nurses required her to sober up before seeing
D.B. During the night, Mother had to be awakened by the nurses to care for D.B.

       Mother initially told the DCS investigator, Cindy Curtis (“Curtis”), that she intended to move
in with D.B.’s paternal grandmother, Gladys Daily (“Grandmother”). However, when D.B. was
ready for release from the hospital, Curtis visited Grandmother’s home. Curtis noted that no baby
items or necessities had been moved into Grandmother’s home and saw no indication that Mother
intended to move in with Grandmother. Curtis then sought emergency custody.

        On July 13, 2001, when D.B. was a little over a month old, the State of Tennessee, on behalf
of the Department of Children’s Services (“DCS”) petitioned the Juvenile Court of Benton County
for temporary protective custody of her. The petition asserted that D.B. was a dependent and
neglected child as defined under Tennessee law and that Mother was an improper guardian for her.

        By order entered on July 13, 2001, the Benton County Juvenile Court (“Juvenile Court”)
placed D.B. in protective custody with DCS. After a preliminary hearing on August 14, 2001, the
Juvenile Court adjudicated D.B. dependent and neglected and found that removal from Mother’s
home was the least drastic alternative available. In light of D.B.’s health problems, the Juvenile
Court ordered Mother to complete CPR and Apnea Monitor training. Mother was also required to
attend vocational rehabilitation counseling, have a neurological psychological evaluation, complete
alcohol and drug assessment, and follow the recommendations of the counselors. The Juvenile Court



         1
           Both of Mother’s other daughters had reached majority by the time of trial. The older of the two had lived in
Missouri with the maternal grandmother for over ten years, and had met Father once during that time. The younger of
the two, the subject of the charge, had lived with the maternal grandmother since she was thirteen years old.


                                                         -2-
ruled that, if custody of D.B. were returned to Mother, she could not return to her mobile home.
Further, the Juvenile Court ordered visitation for Mother.

        On August 7, 2001, Mother and Father signed an initial permanency plan (“Plan”). The Plan
noted that Mother and Father had had physical altercations in the past and required Mother and
Father to attend counseling to resolve relationship conflicts. The Plan required that Mother complete
alcohol and drug assessment, receive individual counseling, and receive vocational counseling to
enable her to financially support D.B. The Plan required that Father comply with probation after his
release from prison, complete alcohol and drug assessment, submit to random drug screens, complete
parenting classes, and complete CPR and Apnea monitoring classes. Additionally, the Plan required
Mother and Father to maintain a safe and sanitary home and noted that the home would be subjected
to random home visits by DCS. DCS made provisions for supervised visitation between Mother and
D.B. for at least four hours per month.

        In February 2002, Mother petitioned Juvenile Court for overnight visitation with D.B.
Mother asserted that she had completed the requirements set out by the court, including parenting
classes, drug and alcohol treatment, and counseling sessions. In its March 2002 order, the Juvenile
Court ordered that Mother be allowed overnight visitation with D.B. upon completion of a 28-day
in-patient alcohol treatment program. The March 2002 order denied visitation to Father.

        After a hearing on March 19, 2001, the Juvenile Court granted overnight visitation to Mother.
Father was granted visitation, but the court required Mother or Grandmother to supervise Father’s
visits. The order stated that if visitation were successful, custody would be restored to Mother.

        In April 2002, Mother was charged with domestic assault involving Father.2 Mother spent
eighty days in jail for this offense.

         In December 2002, DCS filed a petition to vacate the June 2002 order, based on Mother’s
domestic violence charge. The petition stated that the Juvenile Court had ordered that Mother have
no contact with Father, and that Mother had violated that order. The petition noted that Father had
admitted to sexually touching Mother’s oldest daughter and that Father was charged with, but not
convicted of, two counts of rape of a child. Based on Father’s admission, DCS asserted, D.B.
should not be returned to a home in which Father resides. The petition requested a hearing regarding
visitation with revised conditions and limitations or, in the alternative, participation by both parents
in intensive counseling to address the substantial risk of sexual abuse.

       After a hearing on December 10, 2002, the Juvenile Court denied DCS’s petition to vacate
the June 2002 order. The Juvenile Court stated that it was impressed with the progress of both
Mother and Father. The Juvenile Court then increased visitation with D.B., but required that the



         2
           The appellate record references several facts related to Mother’s domestic assault charge, but does not contain
the order revoking Mother’s visitation.


                                                          -3-
visitation be supervised by Grandmother. The court indicated that, if the visitation went well, it
would consider returning custody of D.B. to Mother.

         Subsequently, Mother was arrested for assaulting Grandmother, in an incident in which she
broke Grandmother’s hand. In February 2003, the Juvenile Court again revoked Mother’s visitation
because of the criminal charges against Mother stemming from this assault. On January 1, 2003,
Father was incarcerated for reasons not stated in the record. A month later, the court reinstated
visitation between Mother and D.B. in D.B.’s foster home.3

        Also in March 2003, DCS found a new home for Mother, separate from Father, and paid the
first month’s rent and utility deposit. Shortly after moving into the new home, Mother contacted
Father and ended up moving back into Grandmother’s house with Father.

        In April 2003, Mother and Father signed a revised permanency plan (“revised plan”).
(Exhibit 18) The revised plan changed the goal to adoption. The revised plan stated that the goal had
changed because of the length of time that the case had been pending, and the fact that Mother
continued to be in and out of jail, continued to be involved in domestic violence situations, and had
no stable housing and no financial means for caring for D.B. Additionally, the revised plan included
objectives for Mother and Father, the achievement of which could have resulted in their regaining
custody of D.B. The objectives for Mother included obtaining and maintaining a stable home for
D.B., working with a vocational counselor in order to provide financially for D.B., and continuing
alcohol and drug treatment. The objectives identified for Father were to stay out of jail, submit to
random drug screens, attend Alcoholics Anonymous meetings, and remain drug free. Mother and
Father were advised to have no more physical altercations that resulted in injury or police
involvement.

        Finally, in September 2003, DCS filed a petition to terminate Mother and Father’s parental
rights. As grounds for termination, DCS alleged persistent unremedied conditions that prevented
D.B.’s safe return to their custody, substantial noncompliance with the permanency plan, willful
abandonment by Father for failure to visit or engage in more than token visitation for four months
immediately preceding the filing of the petition, and willful abandonment by Mother for failure to
pay child support.

        The Juvenile Court hearing on the termination petition was held on April 27, 2004 and April
29, 2004. Both Mother and Father testified, as well as the DCS caseworker, Terri Prater (“Prater”).
In her testimony, Prater acknowledged that Mother had made progress on some requirements in the
permanency plan; Mother had received, but had not completed, treatment for alcohol and drug abuse,
had received training on Apnea monitoring, and had completed parenting classes. Prater also
acknowledged that Father had completed a 90-day drug rehabilitation program. Prater maintained,


         3
            For reasons that are not apparent in the record, this order states that “the Petition against [Father] is dismissed
and . . . [Father] shall have visitation with the child upon his making arrangements with [DCS].” The petition to which
it refers is not specified.


                                                             -4-
however, that Mother and Father’s home had remained an unsafe environment for D.B. for three
years, despite the services DCS provided, and that the conditions that led to D.B.’s removal still
existed. Prater noted that both parents still had alcohol and drug problems and that when Mother
and Father engage in physical altercations, Mother was forced to leave Father’s house and had no
place for her and D.B. to live. Prater testified that, in light of the fact that Mother had been arrested
several times for domestic disputes with Father, DCS caseworkers had advised Mother that her
chances of regaining custody of D.B. were much better if she separated from Father. Despite the
physical abuse from Father, Prater said, Mother defended him, noting that he was D.B.’s father and
saying that she wanted them to be a family.

        Father testified that he and Mother had been together off and on for about eleven years.
Father maintained that he and Mother were getting along better than ever, though he conceded that
the police had been called to their house approximately three weeks before the hearing. Father
acknowledged that, in the past five years, he had been arrested four to six times as a result of
domestic violence. Father asserted that the reason he had not visited D.B. over the last ten months4
was that he had no transportation to the scheduled visitations. Father could not drive due to poor
vision and relied on Grandmother for transportation. In December 2003, however, Grandmother
died. She died intestate, survived by Father and his six siblings. Father continued to live in
Grandmother’s house. Father testified that Grandmother’s estate had never been probated, and that
he continued to pay the mortgage. He claimed that his brother and sisters were not interested in
Grandmother’s house.

        During her testimony, Mother acknowledged that her two older daughters, now grown, had
both left her home in their early teens to live with their maternal grandmother. She admitted that the
younger of the two had accused Father of sexual abuse. Mother, however, claimed that her daughter
had later told her that the accusation was a lie, and that the daughter had gone to live with the
maternal grandmother because Mother and Father “wouldn’t let her get away with everything.”

        Mother admitted that, in May 1998, she was convicted of driving while impaired and, in
August 2003, she was convicted of public intoxication. Mother acknowledged that in January 2003
she had pled guilty to assaulting Grandmother and had been under a restraining order as a result of
the assault charge. In April 2003, Mother conceded, she was convicted of assault against Father.
Mother allowed that Father still drank alcohol. Mother admitted that she had accused Father of
assaulting her, but said that she had lied about the alleged assault because she was angry at Father.
While acknowledging that her relationship with Father was the cause of many of her problems,
Mother testified that she did not intend to leave him.

        After the testimony, the trial court judge issued an oral ruling. He found that, although Father
stated that he loved D.B., he chose to buy beer rather than a phone card to call his child. The judge
noted that at the time of the trial in April 2004, Father had not seen D.B. since June 2003. The trial
court found that, if Father had really wanted to visit D.B., he could have found a way to do so. The

        4
            At the hearing in April 2004, Father testified that he had not seen D.B. since her last birthday on June 2, 2003.


                                                             -5-
judge then cited Tennessee Code Annotated § 36-1-102, which defines abandonment as a willful
failure to visit a child for a period of four months preceding the filing of a petition to terminate the
parental rights.5 The judge found that Father’s actions clearly fell within the statutory definition of
abandonment, which was grounds for termination of parental rights.

         As to Mother, the trial judge first found that Mother “lies whenever it suits her purpose.” The
trial judge acknowledged that Mother had attended the counseling sessions required by DCS, had
visited D.B. and sent her letters, and had tried to be with D.B. whenever she could. However, the
trial judge stated that, based on Mother and Father’s history and the domestic violence that had
occurred only a few weeks before the trial, he had no doubt that the domestic abuse would continue.

        The trial court found that the grounds for termination existed pursuant to Tennessee Code
Annotated § 36-1-113 (g)(3)(A), noting that D.B. had been removed from the home for a period
greater than six months and found that the conditions that led to her removal still persisted and were
unlikely to change and prevented her safe return to the care of Mother and Father. The trial judge
found that the continuation of the parental relationship greatly diminished D.B.’s chance of early
integration into a stable permanent home.6 Thus, the judge found grounds for termination of
Mother’s parental rights.

        After finding grounds, the trial court determined that termination of parental rights was in
D.B.’s best interest. The trial judge cited Tennessee Code Annotated § 36-1-113(i)(1), which states
that the court should consider “[w]hether the parent or guardian 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 or guardian.” Tenn. Code Ann. § 36-1-113(i)(1). The trial court found that “the
parents still drink, that alcohol is used in the home; that the parties still argue; that parties still call
the sheriff’s department concerning domestic abuse, and they certainly - - that’s not in the best

        5
            Section 36-1-102(1)(A)(i) states that, for the purpose of terminating parental rights, “abandonment” means:

        For a period of four (4) consecutive months immediately preceding the filing of a proceeding or
        pleading to terminate the parental rights of the parent(s) or guardian(s) of the child who is the subject
        of the petition for termination of parental rights or adoption, that the parent(s) or guardian(s) either
        have willfully failed to visit or have willfully failed to support or make reasonable payments toward
        the support of the child.

T.C.A. § 36-1-102(1)(A)(i) (2001).

        6
          The relevant statute states that termination may be based on the following grounds:
     The child has been removed from the home of the parent or guardian by order of the 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.
         T.C.A. § 36-1-113(g)(3)(A) (2001).


                                                          -6-
interest of the child.” Pursuant to Tennessee Code Annotated § 36-1-113(i)(2), the trial court also
found that the parents had failed to effect a lasting adjustment after reasonable efforts by available
social services agencies and that lasting adjustment did not appear possible, noting that despite DCS,
Mother had failed to secure suitable housing apart from Father. The trial court observed that Father
and Mother were living in Grandmother’s house, with no legal title, and that Father’s siblings could
force them out at any time. The trial judge noted that Mother had maintained contact with D.B. and
had established a meaningful relationship with her, but Father had not. Emphasizing the fact that
Mother had no intent to live apart from Father, the trial court said:

       There is no hope for these two parties living together. To put a three-year-old back
       in that condition, that would be the wors[t] thing I could possibly do. . . .
                                                 ***
       I . . . find that [Mother] continues to live in the home, continues to have domestic
       problems with [Father], refuses to leave the home. . . . She has stated that she loves
       [Father]; I believe that. I believe that she loves [Father] more than she loves the
       child. She’d much rather be with [Father], in the court’s opinion than she had to be
       with the child. So I’m giving her that opportunity.

Based on this analysis, the judge terminated the parental rights of Mother and Father. From this
judgment, Mother now appeals.7

       On appeal, Mother asserts that the trial court did not have clear and convincing evidence to
terminate her parental rights and that DCS did not make reasonable efforts to enable D.B. to return
home.

        The standard of review of a trial court’s decision to terminate parental rights is de novo upon
the record with a presumption of the correctness of the findings of fact, unless the preponderance of
the evidence is otherwise. Tenn. R. App. P. 13(d). The trial court’s conclusions of law are given
no such presumption of correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.
1996).

        Termination of parental rights are governed by Tennessee Code Annotated § 36-1-113(c)(1),
which requires the court to first find grounds for termination by clear and convincing evidence and
then determine by clear and convincing evidence that termination is in the best interest of the child.8
Tenn. Code Ann. § 36-1-113(c)(1) (2001). In O’Daniel v. Messier, 905 S.W.2d 182 (Tenn. Ct. App.
1995), this Court stated that

       [t]he “clear and convincing evidence” standard defies precise definition. While it is
       more exacting than the preponderance of the evidence standard, it does not require


       7
           The notice of appeal in this case was filed by Mother only; Father is not a party to this appeal.

       8
           Grounds for termination of parental rights are set forth in Tennessee Code Annotated § 36-1-113(g).


                                                           -7-
        such certainty as the beyond a reasonable doubt standard. Clear and convincing
        evidence eliminates any serious or substantial doubt concerning the correctness of the
        conclusions to be drawn from the evidence. It should produce in the fact-finder’s
        mind a firm belief or conviction with regard to the truth of the allegations sought to
        be established.

O’Daniel v. Messier, 905 S.W.2d 182 (Tenn. Ct. App. 1995), superceded by statute on other
grounds.

          Mother asserts that the State has not proven its case by clear and convincing evidence. In
this case, the trial court judge terminated Mother’s parental rights based on the grounds of persistent
conditions, pursuant to Tennessee Code Annotated § 36-1-113 (g)(3)(A). Mother argues that D.B.
was removed from her home due to the filthy conditions of the home into which D.B. was born.
Mother notes that she left this home and moved in with Grandmother as directed by DCS, so this
ground is not applicable. The statute, however, states that grounds for termination are established
not only if the original conditions which led to removal still exist, but also if “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) . . . still persist. . . .”
There is ample evidence to support the trial court’s conclusion that Mother had failed to establish
a home and financial stability apart from Father, and that so long as Mother and Father were residing
together there would be drinking and domestic problems in the home. Clearly this precludes the safe
return of D.B. to their care.

         Mother asserts that she completed the permanency plan. Clearly Mother made significant
efforts and in fact completed portions of the plan’s requirements. However, the trial court noted that
Mother failed to complete significant portions of the permanency plan, most notably those
addressing the domestic abuse issue. The evidence clearly supports the finding that domestic abuse
still continues three years after D.B. was taken into state custody. As such, we find no error on this
issue.

        Mother asserts the DCS did not make reasonable efforts to return the child to the home, as
required by Tennessee Code Annotated § 37-1-166. Specifically, Mother argues that DCS did not
make a reasonable effort to relocate her. The record shows that DCS relocated Mother to her own
home and paid rent for one month and the utility deposits. After this, Mother returned to
Grandmother’s house to live with Father. DCS then suggested that Mother move to Missouri and
live with her mother. Mother claimed that there was not enough room for her in Missouri. However,
the trial court judge did not believe Mother’s assertion, finding that she “lies whenever the
opportunity should present itself.” The trial court’s credibility determination and its factual finding
are well supported by the evidence. Under all of these circumstances, we must conclude that the trial
court did not err in finding by clear and convincing evidence that grounds for terminating Mother’s
parental rights existed and that such termination was in D.B.’s best interest.




                                                   -8-
     The decision of the trial court is affirmed. Costs of this appeal are taxed to Appellant,
Ramona Bokan, for which execution may issue, if necessary.




                                                   ___________________________________
                                                   HOLLY M. KIRBY, JUDGE




                                             -9-
