       IN THE COURT OF APPEALS OF TENNESSEE
                   AT NASHVILLE
                                                  FILED
                                                   October 16, 1998
STATE OF TENNESSEE,         )
DEPARTMENT OF CHILDREN’S )                       Cecil W. Crowson
SERVICES,                   )                   Appellate Court Clerk
                            )       Cheatham Juvenile
     Plaintiff/Appellee,    )       No. 91-516
                            )
VS.                         )       Appeal No.
                            )       01A01-9709-JV-00476
N.A.A. and J.M.A.,          )
                            )
     Defendants/Appellants. )




                   APPEAL FROM THE JUVENILE COURT
                       FOR CHEATHAM COUNTY
                     AT ASHLAND CITY, TENNESSEE

               THE HONORABLE PHILLIP A. MAXEY, JUDGE




For Plaintiff/Appellee:             For Defendants/Appellants:

John Knox Walkup                    Sam Wallace, Sr.
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 four
children between seven and thirteen years of age. The children were removed from
their parents’ custody in 1991 after their mother was accused of physically abusing
their infant cousin who later died of her injuries. In April 1997 the Tennessee
Department of Children’s Services petitioned the Cheatham County Juvenile Court
seeking to terminate the mother’s and father’s parental rights. The juvenile court
conducted a bench trial and terminated the parents’ parental rights. On this appeal,
the parents assert that the decision is not supported by clear and convincing evidence.
We affirm the judgment terminating the parents’ parental rights because the
Department has presented clear and convincing evidence establishing the statutory
grounds for terminating parental rights and demonstrating that the children’s best
interests will be best served if they can be integrated into a stable and permanent
home as soon as possible.


                                          I.


      N.A.A. and J.M.A. both grew up in the Davidson County area and were
married in the mid-1980s. N.A.A. has an eleventh grade education; while J.M.A. quit
school after completing the eighth grade. They had their first child, J.L.A., in 1984.
Their second son, B.M.A., was born in 1987, and their third son, J.D.A., in 1989.
Throughout most of their marriage N.A.A. did not work outside the home but rather
spent her days cooking, cleaning, sewing, and performing other household duties.
J.M.A. held several jobs during their marriage but at all times relevant to this case
was unemployed due to a back injury. The family’s primary source of income was
derived from government benefits.


      In 1990 N.A.A.’s sister, who was suffering from terminal spinal meningitis,
asked the couple to take her daughter into their home. N.A.A. and J.M.A. agreed to
raise their niece, B.C., who was less than two years old at the time. B.C.’s mother
died soon thereafter, and N.A.A. and J.M.A. were awarded custody of the child. On
June 4, 1991, B.C. died from severe head injuries. An autopsy revealed that the cause
of the child’s death was “multiple blunt trauma to the head,” and the coroner equated
the child’s injuries to “shaken baby syndrome” or to injuries caused by the impact
when a skier hits a tree at a remarkable velocity.

                                         -2-
       N.A.A. insisted that B.C. sustained her injuries by hitting her head on a dresser
while jumping on her bed. Nonetheless, the authorities charged N.A.A. with B.C.’s
death. On June 11, 1991, representatives of the Department of Human Services
removed N.A.A.’s and J.M.A.’s three sons from their home. Family members
initially agreed to care for the children, but the children were eventually placed in
foster homes. In August 1991, while she was incarcerated awaiting trial for the death
of B.C., N.A.A. gave birth to the couple’s fourth child, A.M.A.A.. The baby was
immediately placed in a relative’s home and later in foster care. On February 25,
1992, N.A.A. was convicted of criminally negligent homicide in connection with the
death of B.C.. Although the trial court set aside the conviction, it was later reinstated
on appeal.1 N.A.A. eventually received a one-year suspended sentence and was
placed on probation for one year.


      N.A.A.’s and J.M.A.’s children have lived in foster homes or public facilities
continually since June 1991. They have seen their parents only during periodic
visitation that has been supervised by the Department of Children’s Services. When
the three oldest children were first placed in foster care, they were developmentally
delayed and exhibited severe emotional and behavioral problems, including
aggression toward others and inappropriate sexual conduct. The two oldest boys also
alleged that they had been sexually abused. The youngest child, who has never lived
with her biological parents, is the only child who appears to be happy and well-
adjusted.


      During the next six years, the Department offered both N.A.A. and J.M.A.
opportunities to participate in programs that would enable them to regain custody of
their children. These opportunities included individual and family counseling,
parenting classes that focused on effective and appropriate methods of disciplining
their children, and other sessions designed to heighten their awareness of their
children’s special needs. The Department also encouraged N.A.A. and J.M.A. to
confront difficult issues such as the sexual abuse allegations made by their two oldest
sons. Despite their attendance at these sessions, the Department eventually concluded
that N.A.A. and J.M.A. had failed to improve their parenting skills or to remedy the
conditions that led to their children’s removal in the first place. They declined to
accept that J.L.A. is mentally retarded or that any of their children possess special


      1
          See State v. Adams, 916 S.W.2d 471 (Tenn. Crim. App. 1995).

                                              -3-
needs. They also consistently denied that their two oldest sons had been sexually
abused and refused to even discuss their sons’ allegations during counseling sessions.


      On May 1, 1997, the Department filed a petition in the Cheatham County
Juvenile Court to terminate N.A.A.’s and J.M.A.’s parental rights because of severe
child abuse and persistence of the conditions that caused the initial removal. N.A.A.
and J.M.A. responded to the petition by denying that they ever abused, neglected, or
abandoned their children. On July 30, 1997, almost six years after the children had
been removed from their parents’ custody, the children’s guardian ad litem filed a
report with the Juvenile Court concluding that the children were improving in foster
care and that N.A.A. and J.M.A. had not yet acquired the necessary parenting skills
and knowledge to care for their children. Accordingly, the guardian recommended
that the children’s interests would be best served by terminating N.A.A.’s and
J.M.A.’s parental rights and by allowing J.L.A. to remain in therapeutic foster care
and by allowing the remaining children to be adopted by their respective foster
families.


      Following a bench trial, the juvenile court terminated N.A.A.’s and J.M.A.’s
parental rights on four grounds: (1) N.A.A.’s conviction for criminally negligent
homicide, (2) the unsuccessful effort to reunite the family, (3) the psychological tests
indicating that both N.A.A. and J.M.A. exhibited traits of potential child abusers, and
(4) N.A.A.’s and J.M.A.’s refusal to deal with the sexual abuse allegations of their
two oldest sons. The juvenile judge also concluded that all four children, after six
years of instability, deserved an opportunity to be placed in a permanent home and
that the foster families of the three youngest children desired to adopt them.


                                          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.
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) (Supp. 1998); State Dept. of Human
Services 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.

                                          -4-
      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) (Supp. 1998). 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) 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) permits termination of parental rights
if the parent has committed severe child abuse.


      The juvenile court found that the Department established by clear and
convincing evidence two grounds for terminating N.A.A.’s and J.M.A.’s parental
rights - persistence of conditions and severe abuse of B.C. We agree. The evidence
presented to the juvenile court shows that B.C. was abused and that removal of
N.A.A.’s and J.M.A.’s four children from the home was proper.


                                        A.
                       EVIDENCE OF SEVERE CHILD ABUSE

      N.A.A. stands convicted of the criminally negligent homicide of her fifteen-
month-old niece who was living with N.A.A. and J.M.A at the time of her death.
Despite her continuing protestations that she is not responsible for B.C.’s death,
N.A.A.’s culpability has been fully and finally adjudicated by the Court of Criminal
Appeals. This proceeding does not provide an occasion to collaterally attack that
conviction. N.A.A.’s conduct clearly amounts to severe child abuse under Tenn.
Code Ann. § 36-1-113 (g)(4), and thus the Department has proved by clear and
convincing evidence that N.A.A. has engaged in conduct warranting termination of
her parental rights under Tenn. Code Ann. § 36-1-113 (g)(4).


                                      B.
                             PERSISTENT CONDITIONS




                                        -5-
      The Department has also presented clear and convincing evidence that N.A.A.
and J.M.A. have been unable to acquire the parenting skills and knowledge necessary
to care for their children. Despite the Department’s efforts, the parents continue to
refuse to believe that J.L.A. is mentally retarded or that any of their children possess
special needs. They have not learned to discipline the children effectively. N.A.A.
continues to deny any involvement with her niece’s death and refuses to deal with the
issue in counseling. J.M.A. admits that he feels distant from his children and does
not interact with them during visitation.


      The two psychological evaluations administered to N.A.A. and J.M.A. in 1992
and 1995 demonstrate that they have not made progress in improving their parenting
abilities under the Department’s plan of care. The initial evaluation classified both
parents as risks for dysfunctional parenting and as poor candidates for therapy. It
indicated that N.A.A. possessed characteristics signifying tendencies toward child
abuse and that J.M.A. was defensive and mildly paranoid and that he harbored intense
anger. The second evaluation revealed that N.A.A. and J.M.A. continued to
demonstrate risk factors for abuse and had not benefitted from the parenting skills
they had been taught.


      The most serious failure to address and remediate problems similar to those
that led to the children’s original removal from the home involves N.A.A.’s and
J.M.A.’s continuing ambivalence about their eldest sons’ sexual abuse complaints.
In spite of strikingly similar accounts of abuse given by J.L.A. and B.M.A., who have
not lived together since leaving their parents’ custody, N.A.A. and J.M.A. refuse to
acknowledge that any abuse could have occurred or to even discuss these allegations
in counseling. Instead, they continue to assert that their sons were induced to make
these allegations by representatives of the State. The parents’ unwillingness to deal
with this serious problem is a condition that prevents their children from being
returned to their custody.


      The reactions of the children regarding visitation with their parents also
provide a basis for concluding that N.A.A. and J.M.A. have not remedied the
problems that caused the children to be removed from their home. J.L.A. and B.M.A.
become noticeably anxious and agitated when informed of their parents’ planned
visits, and their agitation continues sometimes for three weeks following visitation.
Both boys have expressed fear of their parents and have expressed fear that N.A.A.

                                            -6-
and J.M.A. might discover where they were living. B.M.A. has made frequent
references to B.C. and has expressed concern that he too might be harmed. Visitation
has only reinforced B.M.A.’s fears because N.A.A. has told him that he would be
coming home soon and that he would be punished if he did not stop talking about her
and if he did not recant the allegations of abuse. A.M.A.A. also became anxious after
visits due to inappropriate conversations with her mother.


      We acknowledge that N.A.A. and J.M.A. have tried to cooperate as best they
can with the Department during the past six years. They have visited their children
and have submitted to tests and counseling. However, we concur with the juvenile
court’s conclusion that their efforts have been insufficient. Therefore, we find that
the record contains clear and convincing evidence that N.A.A. and J.M.A. have not
adequately improved the conditions that led to the children’s removal and that it is
unlikely that they will be able to do so in the near future.


                                          III.


      The juvenile court also determined that J.L.A.’s interests would be served best
by enabling him to remain in state custody. It also determined that the interests of
B.M.A., J.D.A., and A.M.A.A. would be best served by enabling them to be adopted
by their foster families. We find that the record contains clear and convincing
evidence to support this conclusion.


      When J.L.A. was initially placed in foster care, he was developmentally
delayed and behaved aggressively and violently. It was quickly determined that he
had a low I.Q. stemming from the lack of intellectual stimulation rather than an
inability to learn. He was extremely aggressive toward other children and adults and
engaged in self-mutilation, including injuring himself with household objects and
scratching himself with his fingernails until he bled.          He was eventually
institutionalized after being removed from two foster homes because of his aggressive
behavior toward the other children in the home. Sadly, J.L.A. has spent the majority
of his life being moved between nine separate foster homes and public care facilities.


      The two younger boys, J.D.A. and B.M.A, were also developmentally delayed,
hostile, and aggressive when they were first removed from their parents’ home. The
Department placed them in the same foster home where they have lived ever since.

                                          -7-
B.M.A. displayed inappropriate sexual behavior toward dolls indicating that he had
witnessed or been made a party to sexual acts by one of his parents. J.D.A. suffered
from stress-related eating and drinking disorders, although these have improved over
time.


        The behavior of the three oldest children has improved significantly since June
1991. J.L.A. currently resides in a therapeutic foster home where he is receiving the
care and attention necessary for his continuing psychological problems. He has made
significant progress in that environment. With the help of nurturing foster parents
and therapy, both B.M.A. and J.D.A. have improved significantly and have become
much more well adjusted children. Both boys are doing well in school. B.M.A. plays
football for his elementary school, where his younger sister, A.M.A.A., is a
cheerleader for his team. Their foster parents are eager to adopt the two brothers.


        A.M.A.A. has lived with her foster family since she was less than three months
old. She is the only child who has grown up to be happy, outgoing, and well-
adjusted. Supervised visits are the only exposure that A.M.A.A. has had to her
biological parents. The record indicates that she has required some psychiatric care
because of inappropriate conversations she has had with her mother during these
visits. A.M.A.A.’s foster parents are eager to adopt her, and A.M.A.A. has expressed
a desire to live with them permanently.


        Six years have passed since these four children were removed from their
parents’ home. Since 1991, the children have had the opportunity to be integrated
into stable and healthy homes. Based on our review of the record, we concur with the
trial court’s conclusion that it is time these children live in permanent homes and that
their interests will be served best by permitting them to be adopted by their respective
foster families.


                                          IV.


        We affirm the judgment terminating the parental rights of N.A.A. and J.M.A.
and remand the case to the juvenile court for whatever further proceedings may be
required. We tax costs of this appeal to N.A.A. and J.M.A., jointly and severally, and
their surety for which execution, if necessary may issue.



                                          -8-
                                     ____________________________
                                     WILLIAM C. KOCH, JR., JUDGE

CONCUR:


________________________________________
BEN H. CANTRELL, PRESIDING JUDGE, M.S.


________________________________________
WILLIAM B. CAIN, JUDGE




                               -9-
