                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                           September 20, 2006 Session


STATE OF TENNESSEE, DEPARTMENT OF CHILDREN’S SERVICES v.
R.R.’s, IN THE MATTER OF: R.R. JR., (dob 11/17/01), K.P., (dob 04/26/00),
    and R.C., (dob 07/16/96), CHILDREN UNDER 18 YEARS OF AGE


                 Direct Appeal from the Juvenile Court for Hamblen County
                  Nos. 13104, 13105, 12017    Hon. Mindy N. Seals, Judge




               No. E2006-02785-COA-R3-PT - FILED NOVEMBER 29, 2006


Both parents appeal the Trial Court’s termination of their parental rights. We hold the State
established by clear and convincing evidence statutory grounds for terminations, and the terminations
were in the children’s best interests.


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


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which D. MICHAEL SWINEY ,
J., and SHARON G. LEE, J., joined.

J. Eric Harrison, Morristown, Tennessee, for appellant.

Paul G. Summers, Attorney General and Reporter, and Amy T. Master, Assistant Attorney General,
Nashville, Tennessee, for appellee.



                                            OPINION


               On January 11 and 17, 2006, the Hamblen County Juvenile Court entered Orders
terminating the parental rights of R.R. and R.R. and awarding control and guardianship of the three
minor children to the Department of Children’s Services (“DCS”). Both parents have appealed.
               The following is a summary of the issues raised on appeal by the parents:

               Whether the Juvenile Court abused its discretion in refusing to admit an evidentiary
               deposition?

               Whether there was clear and convincing evidence of a statutory ground for
               termination?

               Whether DCS utilized reasonable efforts to reunify the mother with her children and
               the father with his son?

               Whether there was clear and convincing evidence that termination of parental rights
               is in the children’s the best interests?

                When terminating parental rights, courts are required to “enter an order that makes
specific findings of fact and conclusions of law.” T.C.A. § 36-1-113(k) (2005). We review specific
findings of fact de novo with a presumption of their correctness unless the evidence preponderates
to the contrary. Tenn. R. App. P. 13(d); In re Valentine, 79 S.W.3d at 546–49. We “must determine
whether the facts, either as found by the trial court or as supported by the preponderance of the
evidence, clearly and convincingly establish the elements required to terminate a biological parent’s
parental rights.” In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); see also In re
Valentine, 79 S.W.3d at 546–49. The trial court’s conclusions of law are reviewed de novo with no
presumption of correctness. State Dep’t of Children’s Servs. v. A.M.H., 198 S.W.3d 757, 761 (Tenn.
Ct. App. 2006) at 762.

                Both parents argue that the Juvenile Court erred in refusing to admit into evidence
the deposition for proof of Dr. Cleland Blake, M.D. The father’s counsel attempted to admit Dr.
Blake’s testimony in order to prove that R.R. Jr. and K.C.P. were never sexually abused. The Trial
Court denied the request “based upon the fact that the court had found at the [prior] adjudicatory
hearing that the two children had been sexually abused.”

               Admission of evidence is entrusted to the sound discretion of the trial court, and a
               trial court’s ruling on evidence will be disturbed only upon a clear showing of abuse
               of discretion. A trial court’s exercise of discretion will not be reversed on appeal
               unless the court “applied an incorrect legal standard, or reached a decision which is
               against logic or reasoning that caused an injustice to the party complaining.”

State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004) (quoting State v. Shuck, 953 S.W.2d 662, 669
(Tenn.1997)) (citation omitted).

               The State counters that the doctrine of collateral estoppel bars consideration of
whether the children suffered sexual abuse because the Juvenile Court previously ruled at the
adjudicatory hearing that R.R. Jr. and K.C.P. both suffered sexual abuse. The parents argue that


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collateral estoppel does not apply because the prior adjudicatory hearing was not a final order.

                The Juvenile Court’s order, resulting from the adjudicatory hearing, finding that the
children were dependent and neglected and that R.R. Jr. and K.C.P. were sexually abused was a final
order and was appealable as of right. T.C.A. § 37-1-159(a) (2005); Tenn. R. Juv. P. 36. The parents
did not appeal that order, and we hold that they are bared from raising this issue. The Juvenile Court
did not abuse its discretion. See Massengill v. Scott, 738 S.W.2d 629, 631 (Tenn. 1987); Beaty v.
McGraw, 15 S.W.3d 819, 824 (Tenn. Ct. App. 1998).

               The Juvenile Court found clear and convincing evidence of two statutory grounds for
termination of the parents’ parental rights, i.e., the parents’ substantial non-compliance with the
permanency plan and that the children had been removed for more than six months, the conditions
requiring removal still persisted and would not likely be remedied in the near future, and
continuation of the parent–child relationship diminished the children’s chances for integration into
a permanent home. See T.C.A. § 36-1-113(g)(2)–(3). Both parents deny that such evidence exists.


                  “[S]ubstantial noncompliance by a 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” is a ground for terminating parental rights. T.C.A. § 36-1-113(g)(2) (2005). This statutory
ground requires a two prong analysis. First, the court “must find that the requirements of a
permanency plan are ‘reasonable and related to remedying the conditions which necessitate foster
care placement.’” In re Valentine, 79 S.W.3d 539, 547 (Tenn. 2002) (quoting T.C.A.
§ 37-2-403(a)(2)(C)). Second, the court must find “that the parent’s noncompliance is substantial
in light of the degree of noncompliance and the importance of the particular requirement that has not
been met.” In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004).

                  After the adjudicatory hearing in April 2003, the Juvenile Court issued findings of
fact listing the conditions which necessitated placement of the children with DCS. The Court found
that the father had previously assaulted the mother and hit and struck K.C.P., the parents had allowed
the children to be kept by relatives who were suspected sexual perpetrators, R.R. Jr. and K.C.P. had
been sexually abused. The father had a history of DUI convictions, and the parents had no stable,
appropriate housing. The parents did not seek medical care for their children in a timely manner,
the children “were filthy when taken into care” and did not have appropriate shoes. Finally, the
“mother ha[d] no concept of budgeting money.”

                DCS prepared three sets of permanency plans imposing responsibilities upon the
parents, directed toward remedying these conditions. The parents argue that only the most recent
plans should be examined. When facing various permanency plans, this Court examines those
requirements which are consistently present in the various plans. See In re M.J.B., 140 S.W.3d at
646–48, 657.

               The permanency plans consistently required the mother to provide a safe home and


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environment for the children by ensuring that no one living in or visiting the home would pose a
threat of harm, participate in therapy to address her pattern of unstable relationships with
inappropriate men and her history of abuse and domestic violence; demonstrate improved parenting
skills; and improve her finances and maintain stable, appropriate family housing.

                 On appeal, the mother argues that only the last of these requirements is relevant
because this was the “only ground[] for lack of substantial compliance stated in the petition [to
terminate parental rights]” and the petition was never amended. A review of the mother’s Answer
to the petition and closing argument reveals that she made no objection to this alleged deficiency in
the petition prior to the appeal. “It is well-settled that issues not raised at trial may not be raised for
the first time on appeal.” State Dept. of Human Servs. v. Defriece, 937 S.W.2d 954, 960 (Tenn. Ct.
App. 1996). Assuming arguendo that this issue was properly raised before the Trial Court, the
petition clearly alleges that the mother failed to comply with the permanency plan requirements in
general. The subsequent, specific discussion of the mother’s financial management responsibilities
did not narrow the grounds for substantial noncompliance, but was intended only as an illustrative
example of the mother’s failures.

                 As to the mother’s responsibility to provide for her children’s safety, she testified that
she understood the importance of keeping physically or sexually abusive individuals away from her
children. Yet, she admitted that while her children were in DCS custody she continued a relationship
with a boyfriend despite warnings from DCS that he was a suspected sexual perpetrator. She
testified that she did not believe DCS and that she did not end the relationship until she discovered
that he was having a relationship with another woman. According to one of the mother’s parenting
counselors, the mother allowed this boyfriend to purchase Christmas presents for the children, and
such conduct does not comply with the mother’s responsibility to provide a safe environment for the
children by ensuring that no one living in or visiting the home would pose a threat of harm.

               A consistent theme in the permanency plans was that the mother was to attend
counseling to address, among other issues, her pattern of unstable relationships with inappropriate
men and her history of abuse and domestic violence. The plans also required her to follow the
recommendations of her counselor. Her counselor recommended that she attend two sessions per
month, but at the termination hearing, the mother admitted that during the year prior to the hearing
she had attended only 5 of 24 scheduled counseling sessions. This conduct is not compliant with the
mother’s responsibility to address her history of abuse and domestic violence.

                 The plans also required the mother to demonstrate improved parenting skills, actively
participate in parenting training, and attend the children’s appointments. The evidence established
that the mother had difficulty supervising the children, and that her counselors testified that the
mother showed inconsistent improvement in her parenting skills because she would not retain what
she was taught. She would improve in one area for a period of time, but would eventually revert
back to her previous habits. The evidence establishes that during the ten months preceding the
termination hearing, the mother failed to attend 8 out of 18 scheduled parenting skills classes, and
she failed to attend numerous children’s school meetings and doctors appointments. The evidence


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is clear and convincing that the mother failed to demonstrate the ability to provide a safe
environment for the children, failed to participate in therapy to address her pattern of unstable
relationships with inappropriate men, and failed to demonstrate improved parenting skills. The
mother’s failure to satisfy these essential requirements constitutes clear and convincing evidence that
she was in substantial noncompliance with the responsibilities in the permanency plans for purposes
of T.C.A. § 36-1-113(c), (g)(2).

               The permanency plans consistently required the father to refrain from abusing alcohol
and using illegal drugs, attend counseling to address anger management and domestic violence
issues, demonstrate improved parenting skills, and obtain safe, appropriate housing for himself and
his son. These requirements relate to the conditions which necessitated placement of R.R. Jr. with
DCS, and they are reasonable prerequisites for reunifying the father with his son.

                  Between the filing of the petition to terminate the father’s parental rights and the
termination hearing, the father was convicted of public intoxication on four separate occasions. Two
of these arrests occurred on two consecutive days, and at the termination hearing, the father testified
he could not remember these arrests and explained that he “must have been really out of it or
something.” He further testified that he did not have a drinking problem and that he would have to
be arrested for public intoxication about 24 to 30 times before he would believe he had a problem.
The permanency plans required the father to refrain from using illegal drugs, but he only testified
that he had not used marijuana in the two or three months preceding the hearing. He admitted that
he refused to sign a release that would provide DCS with access to his alcohol and drug assessment,
and it is clear that the father has not complied with his responsibility to refrain from alcohol and drug
abuse.

               The plans required the father to attend counseling to address anger management and
domestic violence issues, yet he did not begin counseling until one or two months prior to the
termination hearing, and he did not attend any sessions during the three weeks prior to the hearing.
His minimal attendance is evidenced by the fact that he could not remember his therapist’s name.
The evidence demonstrates that the father did not establish a lifestyle free of drugs and alcohol
abuse, he failed to address his issues with anger management and domestic violence, failed to
demonstrate improving parenting skills, and failed to obtain safe, appropriate housing for himself
and his son. The foregoing constitutes clear and convincing evidence that the father was in
substantial noncompliance with the responsibilities in the permanency plans for purposes of T.C.A.
§ 36-1-113(c), (g)(2). Moreover, there is clear and convincing evidence of the persistency of these
conditions.

                 Both parents argue that DCS failed to utilize reasonable efforts to reunify the family.
The Juvenile Court found that DCS did utilize reasonable efforts. In a termination proceeding, this
issue is best addressed within the framework of T.C.A. § 36-1-113(i)(2). See In re A.W., 114 S.W.3d
541, 545 (Tenn. Ct. App. 2003); State Dep’t of Children’s Servs. v. Malone,
No. 03A01-9706-JV-00224, 1998 WL 46461, at *1 (Tenn. Ct. App. Feb. 5, 1998). Within this
framework, whether DCS utilized reasonable efforts is only one of many factors the court must


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consider in the best interests analysis. T.C.A. § 36-1-113(i). The statute requires “reasonable
efforts” not herculean efforts. Malone, 1998 WL 46461, at *2.

               The record established, that as the needs of the mother and her children evolved, DCS
modified the permanency plans on two separate occasions, and arranged for counseling to address
domestic violence, parenting skills, decision making, and other issues. Through these efforts, the
mother received 32 counseling sessions, although more than this number were made available to her.
DCS arranged for the mother individualized parenting skills training, budgeting, and how to maintain
a clean safe home. Numerous hours were spent with the mother by the instructor, and the evidence
clearly supports that DCS made reasonable efforts to reunite the family.

               As to the father, DCS began its efforts with an initial set of permanency plans and
provided the father with individualized parenting skills training similar to that provided to the
mother. Considerable time was spent with the father getting visitation with his son, and parental
training was available to the father every other week.

                Specifically, the father argues that DCS failed to utilize reasonable efforts when it
refused to grant the father in-home visitations with his son. The record established that DCS refused
in-home visitations because it suspected the father to be a sexual perpetrator, and the father’s home
is immediately adjacent to his father’s house, and the father himself suspects his father is capable
of abuse. We conclude that the evidence does not preponderate against the Juvenile Court’s specific
finding that DCS utilized reasonable efforts to reunify the father with his son.

                 We find there is clear and convincing evidence that the termination of parental rights
of both parents was in the children’s best interest. The evidence establishes that the mother had
recently been romantically involved with a suspected sexual predator, and was arrested for assault
a week prior to the termination hearing. The psychological evaluation of the mother indicated that
she has “borderline intellectual functioning” and probably has a “dependent personality disorder.”
The evidence is clear and convincing that termination of the mother’s parental rights is in the best
interest of the children for purposes of T.C.A. § 36-1-113(c)(2).

                 Like the mother, the father’s substantial nonconformance with the requirements in
his permanency plans evidence his failure to make a sufficient adjustment of “circumstance, conduct,
or conditions.” See T.C.A. § 36-1-113(i)(1). This establishes that the father lacks appropriate
parenting skills, and abuses alcohol and illegal drugs. Returning R.R. Jr. to the father’s custody
would have a detrimental effect on R.R. Jr.’s emotional and psychological condition. See T.C.A.
§ 36-1-113(i)(5). Despite the father’s suspicions that his father was abusive, the father continues to
live in a poorly maintained, one-bedroom home immediately adjacent to his father’s residence. The
foregoing constitutes clear and convincing evidence that termination of the father’s parental rights
would be in the best interests of the child for purposes of T.C.A. § 36-1-113(c)(2).

               The Juvenile Court’s orders terminating the parental rights of the parents is affirmed,
and the cause remanded, with the cost assessed equally to the two parents.


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      ______________________________
      HERSCHEL PICKENS FRANKS, P.J.




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