                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                           Assigned on Briefs September 10, 2002

          TENNESSEE DEPARTMENT OF CHILDREN’S SERVICES
                 v. FLORENCE HOFFMEYER, ET AL.

                     Appeal from the Juvenile Court for Robertson County
                              No. D-18308     Max Fagan, Judge



                     No. M2002-00076-COA-R3-JV - Filed March 13, 2003


PATRICIA J. COTTRELL, J., concurring.

        I disagree with the conclusion of the majority that the December 30, 1999 order entered in
this cause was not a final order. In that order, the trial court specifically held that the children were
dependent and neglected as defined by Tenn. Code Ann. § 37-1-102(b)(12)(F); found that there had
been severe child abuse; found that the father had sexually battered one minor child and had violated
Tenn. Code Ann. § 39-13-527; and awarded temporary custody of the children to the Department
of Children’s Services.

        Tenn. Code Ann. § 37-1-159(a) provides for the appeal of a final order or judgment in a
dependent and neglect proceeding to circuit court. Subsection (c) of that statute provides a deadline
for hearing an appeal from a juvenile court decision “that involves the removal of a child or children
from the custody of their natural and/or legal parents.” If, after a hearing, a child is found by clear
and convincing evidence to be dependent and neglected, the court may transfer temporary legal
custody to a specified list of individuals or entities, including the Department of Children’s Services.
Tenn. Code Ann. § 37-1-129 (c) & -130(a)(b). Thus, an order finding a child dependent and
neglected and transferring custody, as did the December 30, 1999 order herein, is a final judgment
on those issues. A parent whose child is found to be dependent and neglected and who is removed
from that parent’s custody has a right to immediately appeal such an order.

        Tenn. Code Ann. § 37-1-129(a)(2) requires a court considering a petition alleging that a child
is dependent and neglected to “determine whether the parents or either of them or another person
who had custody of the child committed severe child abuse” and to file written findings of fact which
are the basis of its conclusions on that issue. Such a finding triggers other statutory provisions
including a prohibition on returning the child to the home of any person who engaged in or
knowingly permitted the abuse until the court has received and considered reports and
recommendations, by parties specified in the statute, prepared in light of a possible return of the
child. Tenn. Code Ann. §37-1-130(c). “No child who has been found to be a victim of severe child
abuse shall be returned to such custody at any time unless the court finds on the basis of clear and
convincing evidence that the child will be provided a safe home free from further such brutality and
abuse.” Tenn. Code Ann. §37-1-130(d). The trial court’s December 1999 order includes language
to this effect.

        Simply because the order directs that further action be taken does not affect its finality as to
the findings of dependency and neglect and award of custody. Because temporary custody was
awarded, future activity was required to determine future placement and any eventual award of
permanent custody. In addition to the statutory finding required by Tenn. Code Ann. § 37-1-130(d),
other statutory requirements exist regarding a child found dependent and neglected, and/or the victim
of abuse, and the temporary custody of whom has been transferred from the parents. See, e.g., Tenn.
Code Ann. § 37-1-130(c) & (e). The juvenile court herein ordered evaluations and recommendations
“regarding the possibility and advisability of reunification of the minor children with their parents.”

        When a child is removed from the home and placed with the Department, various reports and
determinations are required, including the development of and a hearing on a permanency plan,
Tenn. Code Ann. § 37-1-166. A foster care placement also requires a permanency plan within thirty
(30) days of placement in foster care. Tenn. Code Ann. § 37-2-403(a)(1). The court is required to
review such a plan. Tenn. Code Ann. § 37-2-403(a)(3). Periodic subsequent hearings are required
for a child placed in foster care to review the permanency plan and goals. Tenn. Code Ann. § 37-2-
409.

        None of these further proceedings regarding a child’s placement make the initial order
finding grounds for award of temporary custody other than final. Such an order provides the legal
basis for the court’s and the department’s continuing involvement in the child’s placement and
obligation to the child. Consequently, I would find that the 1999 order was a final order on the
determination of dependency and neglect, award of custody, and the finding of child abuse.

       I am troubled, however, by the Department’s use of the prior finding of child abuse as a
ground for termination of parental rights, coupled with its position that it was not required to use
reasonable efforts to reunite this family, under the facts of this case.

        It is accurate that one of the statutory grounds for termination of parental rights is “the parent
or guardian has been found to have committed severe child abuse as defined in § 37-1-102, under
any prior order of a court . . . .” Tenn. Code Ann. § 36-1-113(g)(4). Consequently, the ground itself
is proved by a prior court order finding severe child abuse. Under a fair reading of the statute, the
issue of whether abuse occurred does not need to be relitigated at the termination hearing.
Apparently, neither the trial court nor this court is to go behind the order, absent a properly granted
motion for relief from the judgment.1


         1
          However, there are issues of the standard of proof. Un like a decision to terminate parental rights or a finding
of dependency and neglect, a finding of severe child abuse does not appa rently have to be made upon a showing of clear
and convincing evidence. The December 1999 order does not state that such a standard was applied; in fact, the language
of the order implies that the court was troubled by the quality of evidence provided.

                                                           -2-
        A finding of severe child abuse carries significant consequences, and a parent who is the
subject of such a finding should be advised of those consequences at a time and in a manner that
allows a meaningful decision on whether to appeal. The record before us does not indicate that,
during the time available to them to appeal, the parents were informed that the finding of severe child
abuse constituted a basis, in and of itself, for termination of their parental rights, regardless of their
later conduct. To the contrary, the December 1999 order specifically mentions recommendations
on reunification of the family. In addition, according to the Department “shortly after” the child was
removed from the home, the Department and the parents entered into a permanency plan, the goal
of which was to return the child to the family home.

         A permanency plan for any child placed in foster care must include a goal of: (1) return of
the child to the parent; (2) placement of the child with relatives; (3) adoption; (4) permanent foster
care; or (5) emancipation. Tenn. Code Ann. § 37-2-403(a)(1). Such a plan must include a statement
of the responsibilities between the parents, the agency and the caseworker. Tenn. Code Ann. § 37-2-
403(a)(1). The court must review a proposed permanency plan, and may approve it or make
necessary modifications. Tenn. Code Ann. § 37-2-403(a)(2)(a). A hearing is required, and deadlines
exist. Tenn. Code Ann. § 37-2-403(a)(3). Such plans are subject to modification and shall be
reevaluated and updated at least annually. 2 Tenn. Code Ann. § 37-2-403 (a)(1).

       Although the record before us does not reflect the entirety of the court’s and the Department’s
involvement with this child and this family, it does give us a more complete picture than just the two
orders at issue. According to documents in the record, the child first came into custody of the
Department in February of 1999. The first permanency plan in the record is dated March 8, 1999,
and was signed by the child, the DCS caseworker, the parents, and the mother’s attorney on March
9, 1999.

        Thus, the November 1999 hearing which resulted in the December 1999 order finding the
child dependent and neglected was held ten months after the child was placed in temporary custody
of the Department3 and nine months after the Department and the parents entered into agreement on
a permanency plan which had a goal of reunification of the family. That order included direction
from the court that it receive recommendations on reunification of the family. The order does not
address the March 1999 permanency plan, and that plan was never approved by the court.

        The record includes another permanency plan, introduced through the Department, dated June
16, 2000. This plan included a statement that “The Department will assist the family and child in
completing the permanency plan.” It also stated that the parents will receive counseling and admit
their role and responsibility in abuse and named as the party responsible for those steps “counselor,
DCS and placement.” The caseworker admitted that the plan did not state that the mother was

         2
          This requirement does not apply where a long term agreement for foster care has been reached in accordance
with statutory requirements.

         3
         This explains the co urt’s reference to the inadequacy of the Department’s investigation even though it had ten
months to do that investigation.

                                                          -3-
responsible for contacting a counselor. The plan was signed by the child, the parents, the case
manager and the foster parent. The goal of this plan remained “Return to parent.” The plan was
never approved by the court.

         The technical record herein contains no record of court action during this time. However,
at the termination hearing herein, the case manager testified to several events or conversations taking
place when she and the parents appeared in court on August 23, 2000. The case manager’s notes,
entered into evidence, include a notation dated 8/23/00 stating the parents appeared in court that day.
“This was a review of the termination of parental rights on [the child]. We are scheduled to reappear
in court on 9/13/00. At that time Referee Flemming wants the petition filed.” Obviously, this
notation is not an official record of court action, but does confirm the case manager’s testimony that
the parents and the state appeared in a court hearing on that date.

       The case manager testified that the last time she spoke with the parents was August 23, 2000,
when they were in court for the hearing. She also testified that she found out at that time that the
parents had moved, but she never visited them at the new address or did a home study there. At the
termination hearing, the caseworker testified there had been regular visits at the DCS office until
sometime the year before, stating, “I believe we have a court order for them not to visit anymore.”
The record before us contains no such order, and the June 2000 permanency plan indicates visitation
had been ordered, was occurring, and was to continue.

        Three months after the last permanency plan was signed, on September 7, 2000, the
Department filed its first Petition to Terminate Parental Rights, alleging as grounds the prior finding
of severe child abuse. Although the Department later took the position that a finding of severe child
abuse relieves it of any responsibility to use reasonable efforts to help the parents meet their
responsibilities under a permanency plan or to reunify the family, attached to the original petition
is an “Affidavit of Reasonable Efforts.” In that affidavit, the case manager testifies that the
Department had provided the parents visitation with the minor child, psychological assessments,
names of resources or agencies to provide housing and other help. The affidavit also states, “We
provided the Hoffmeyers with a copy of the permanency plan which outlines barriers to permanency,
services needed and action steps.”

        Again, the record is devoid of any records of the court reflecting activity for a number of
months after the petition for termination was filed. Somewhat inexplicably, though perhaps in an
attempt to comply with the requirements regarding review of permanency plans,4 the Department
filed a Notice of Permanency Planning Hearing on June 27, 2001, nine months after filing the initial
petition to terminate parental rights. That notice stated that a permanency planning hearing had been
scheduled “for further dispositional hearing to comply with . . . T.C.A. § 37-2-403 and 409.” The
notice stated:


         4
           In addition to the initial permanency plan, within ninety (90) days after a child is placed in foster care and at
least every six (6) months thereafter, a report on progress made in achieving the goals of the plan must be submitted to
the appropriate court or board. Tenn. Code Ann. § 37-2-404.

                                                            -4-
        The purpose of this hearing shall be to determine the future status of the child,
        including, but not limited to, whether the child should be returned to the parent,
        should be continued in foster care for a specified period, should be placed for
        adoption, or should, because of the child’s special needs or circumstances, be
        continued in foster care on a permanent or long-term basis, and shall determine the
        extent of compliance of parties with the terms of the permanency plan, and the extent
        of progress in achieving the goal of the plan.

         Based on the language of that notice, it would appear that the Department, nine months after
filing a petition to terminate parental rights on the basis of a prior finding of abuse, still considered
all the options for the goal of the permanency plan to be open for consideration and available,
including a return to the parents. The record does not include any new plan or order or other
indication of the result of the hearing, which was set for July 11, 2001. However, the record includes
an order from the juvenile court, dated July 19, 2001, reflecting only that the matter of the subject
child “came on for review” and, in the space for other orders, reflects a notation “Atty. review on
8/2/01 at 9:00 to set hearing for termination.”

        An Amended Petition to Terminate Parental Rights was filed August 6, 2001, ten months
after the initial petition to terminate parental rights was filed. The amended petition alleged as
grounds: (1) the failure of the parents to comply with their responsibilities under the permanency
plans “entered into by said Defendants with the State of Tennessee, Department of Children’s
Services;” and (2) the continued existence of the conditions which led to removal or the existence
of other conditions which in all probability would prevent the child’s safe return to the home, that
there was little likelihood these conditions will be remedied in the near future, and that continuation
of the parent-child relationship greatly diminished the child’s chance of early integration into a stable
and permanent home. Tenn. Code Ann. § 36-1-113(g)(3)(A).

         The Amended Petition did not re-adopt, incorporate, or refer to the single ground alleged in
the original complaint. Other than the word “Amended” in its title, the document did not refer to the
original petition at all. The amended petition repeated the various preliminary information and
jurisdictional statements contained in the original petition. In short, the amended petition, on its
face, is a substitute for the original petition. At the beginning of the trial, when the question of what
grounds were at issue was raised, the trial court stated that, “even though the pleadings may be
deficient in the form in the reference to the prior pleading” he would allow the Department to orally
amend the petition to include the ground of a prior finding of severe child abuse “based on the fact
that the record is clear that there has been a prior finding.”

       The court viewed this ruling as eliminating the need for proof of any other ground and
making the only issue the best interest of the child. The Department indicated it wanted to provide
proof on the other two grounds. The trial court dismissed the ground of failure to comply with the
permanency plan because there was no existing permanency plan which had been approved by the
court.



                                                  -5-
        Despite its prior actions and disregarding the permanency plans it had agreed to, at the
termination hearing the Department took the position that it was not required to use reasonable
efforts to help the parents comply with the plan with the goal of reunification of the family, as
required by Tenn. Code Ann. § 37-1-166.5 Presumably, the Department’s position also includes the
reasonable efforts consideration in a termination proceeding, as required by the following provision:

        In determining whether termination of parental or guardianship rights is in the best
        interest of the child pursuant to this part, the court shall consider, but is not limited
        to, the following:

                                                          ....

        (2) Whether the parent or guardian has failed to effect a lasting adjustment after
        reasonable efforts by available social services agencies for such duration of time that
        lasting adjustment does not reasonably appear possible;

Tenn. Code Ann. § 36-1-113(i).

        As the Department maintains, Tenn. Code Ann. § 37-1-166(g)(4)(A) provides that reasonable
efforts to reunify a family are not required to be made if a court has determined that a parent has
subjected the child or a sibling to severe child abuse. However, there is nothing in the language of
the statute to prevent the Department from making such efforts, as it claims it did here.

        We find no statement or intent of the legislature that a finding of severe child abuse must
always result in the termination of parental rights. Instead, the statutory system leaves to the
discretion of the Department and the courts the determination of whether termination is to be sought
and granted under the particular facts of the situation. The Department has the initial discretion to
determine whether a particular situation is amenable to efforts to reunify the family. The statute
regarding the Department’s obligations to use reasonable efforts to make it possible for a child to
safely return home provides, in pertinent part, that if reasonable efforts “are not made” because of


        5
            That statute p rovid es, in pertinent part:

        (a) At any proceeding of a juvenile court, prior to ordering a child committed to or retained within the custody
        of the department of children’s services, the co urt shall first determine w hether reasonable efforts have been
        made to:
                                                          ....

        (2) Make it possible for the child to return home.

        (b) W henever a juvenile court is making the determination required by subsection (a), the department
        has the burden of demonstrating that reasonable efforts have been made to prevent the need for
        removal of the child or to make it possible for the child to return home.

Tenn. Code Ann. § 37-1-166.

                                                          -6-
a court determination that one of the situations which obviates the reasonable efforts requirement
exists,6

         (A) A permanency hearing shall be held for the child within thirty (30) days after the
         determination; and

         (B) Reasonable efforts shall be made to place the child in a timely manner in
         accordance with the permanency plan, and to complete whatever steps are necessary
         to finalize the permanent placement of the child.

Tenn. Code Ann. § 37-1-166(g)(5). The “determination” triggering the permanency plan hearing is
the court determination that one of the situations exist in which reasonable efforts to preserve and
unify families are not required, herein the finding of severe child abuse.

        Thus, the legislature envisioned a decision that reunification is not possible within thirty days
of the determination of severe child abuse. In that situation, the Department is not obligated to use
reasonable efforts to reunify the family; such efforts would be inconsistent with the permanency
goals for the child. See Tenn. Code Ann. § 37-1-166(g)(3).

        The record herein does not indicate that any such hearing was requested or held within thirty
days of the trial court’s finding of abuse. Instead, the Department proceeded with a permanency plan
with the goal of reunification, not one of permanent placement elsewhere, and continued on that
path, at least until the first petition to terminate parental rights was filed, and perhaps beyond. The
record does not include any permanency plan or testimony to indicate that a plan with a different goal
was ever presented to the parents, agreed to, or approved by the court.

        While the Department may not be required, in specified situations, to use reasonable efforts
to rehabilitate the parents so that a child could safely return to the home, once the Department agrees
to a permanency plan outlining the parents’ and its responsibilities, its ability to rely on Tenn. Code
Ann. § 37-1-166(g)(4) is limited. Once the Department agrees to responsibilities under a
permanency plan whose goal is reunification of the family, it waives its option to refuse assistance
to reunify that family until the permanency goal is modified.7

       I would find that once the Department took action toward reunification of the family, and the
family relied upon the plan agreed to by the Department, the Department’s obligations to use


         6
          One of those determinations is that the parent has subjected the child to aggravated circumstances. Tenn. Code
Ann. § 37-1-166(g)(4)(A). The definition of “aggravated circumstances” includes severe child abuse. Tenn. Code A nn.
§ 36-1-102(9 ).

         7
           W here a plan, or a modified plan, with a goal other than reunification is agreed to or ordered, continuation of
reaso nable efforts to reunify the family would be inconsistent with the new permanency plan. Thus, where the goal of
the plan is something other than a reunification of the family, then the reasonable efforts required are those necessary
to finalize a permanent placement of the child. Tenn. Code Ann. § 37-1-166 (g)(3).

                                                           -7-
reasonable efforts were triggered, and it can no longer rely on Tenn. Code Ann. § 37-1-166(g)(4)(A)
to excuse its lack of action. This court has taken a similar position before. See In re A.M.B., No.
M2000-01130-COA-R3-CV, 2001 Tenn. App. LEXIS 408, at *9 n. 1 (Tenn. Ct. App. June 1, 2001)
(no Tenn. R. App. P. 11 application filed) (stating that although the state asserted it was not required
to provide counseling to the mother because its duty to use reasonable efforts to preserve and reunify
families is removed where “aggravated circumstances” exist under Tenn. Code Ann. § 37-1-
166(g)(4)(A), “We are not content to base our decision on that statute, however, since the State did
establish a program designed to reunify [the mother] and the child”).

       Consequently, I would hold that the Department agreed to use reasonable efforts to reunify
the family and was obligated to continue those efforts or modify the permanency goal for this child
so that its efforts could be properly directed toward the new goal, whether that be adoption,
placement with a relative, long-term foster care, or something else. After two and a half years of
custody of this child, and at least two permanency plans with a goal of returning the child to her
parents, the Department waived its ability to rely on Tenn. Code Ann. § 37-1-166(g)(4)(A).

       The Department’s failure to use reasonable efforts to reunify the family can result in denial
of termination of parental rights, especially where the failure is directly related to an allegation by
the Department that the parent failed to meet his or her requirements under a plan or to remedy
conditions which prevent the safe return of the child to the home. See In re D.D.V., No. M2001-
02282-COA-R3-JV, 2002 Tenn. App. LEXIS 126 (Tenn. Ct. App. Feb. 14, 2002) (no Tenn. R. App.
P. 11 application filed).

        As discussed above, such failure to use reasonable efforts also is relevant to a determination
of whether to terminate parental rights on the basis of a prior finding of child abuse where the
Department has elected to proceed with efforts to reunify the family. 8 While a prior finding can,
standing alone, provide the grounds for termination when the Department or the court takes action
consistent with an intent to proceed toward such termination, inconsistent action should make
reliance on the statute no longer available.

         It is fundamentally unfair for the Department to lead parents to believe they can once again
regain custody of their children by complying with specified obligations and then, months or years
later, deny any responsibility of its own and seek termination on the basis of a finding made before
the permanency plan to achieve reunification was agreed to. It is not consistent with the best
interests of the child to visit with and maintain a relationship with parents, while adjusting to a foster
home, with the child participating in planning for reunification of the family, when such reunification
can be prevented by use of the prior finding regardless of the parents’ or the Department’s
compliance with their respective obligations under the plan.

       Although the General Assembly has directed the Department to file a petition to terminate
parental rights in specified circumstances, including “if a juvenile court has made a finding of severe


        8
            See Tenn. Cod e Ann. § 36-1-113(i) (regarding considerations on best interest).

                                                          -8-
child abuse as defined at § 37-1-102,” Tenn. Code Ann. § 36-1-113(h)(1)(D), it has also recognized
that the Department can choose, instead, to work toward reunification of the family. In addition,

        (2) At the option of the department, the department may determine that a petition to
        terminate the parental rights of the child’s parents shall not be filed . . . , if one of the
        following exists:

                                                    ....

        (C) The department has not made reasonable efforts under § 37-1-166 to provide to
        the family of the child, consistent with the time period in the department permanency
        plan, such services as the department deems necessary for the safe return of the child
        to the child’s home.

Tenn. Code Ann. § 36-1-113(h)(2).

        In the case before us, the Department could have determined that the abuse was severe
enough to warrant a plan of termination of parental rights before it allowed the parents to believe
otherwise. That does not appear to be the case, herein, however. It appears that the Department was
originally of the opinion that the child’s return to the home might be possible if certain remedial
measures were taken. Thus, it is not really the prior finding of child abuse which triggered the
Department’s petition to terminate parental rights. Instead, it was the Department’s later
determination that sufficient improvement had not taken place and was unlikely to take place.

        In its brief before us, the Department emphasizes the parents’ failure to undergo substantive
counseling to address the abuse suffered by their children or the issues that led to that abuse. We
agree that counseling is an important precondition to returning a child to a home where abuse has
occurred. In fact, Tenn. Code Ann. § 37-2-403(a)(5) requires that in cases involving child abuse or
child neglect, where such child is placed in foster care, the parenting plan shall stipulate that the
abusing or neglecting parent shall receive appropriate rehabilitative assistance through mental health
consultation if so ordered by the court.

        That argument by the Department indicates, however, the Department’s concern was with
the conduct of the parents after the removal of their child. Thus, it is not the prior finding that is the
real ground for termination. Rather, it is the Department’s belief that sufficient remedial measures
have not been taken by the parents to allow the safe return home of the child. Accordingly, the
Department filed the amended petition alleging essentially that: after more than two years, the
parents had not remedied conditions to the extent that the child could return home and, rather than
continuing the uncertainty of the child’s future, the best interests of the child were served by
termination of the parents’ parental rights.




                                                    -9-
       The trial court ruled that this ground was shown by clear and convincing evidence, and the
majority opinion herein does not address this finding. The existence of only one ground need be
proved to warrant termination of parental rights. In re C.W.W., 37 S.W.3d 467, 473-74 (Tenn. Ct.
App. 2000). Therefore, we must review that finding.

        It is apparent that the trial court was disturbed by the Department’s lack of effort to help this
family meet the goal of reunification or help remediate the conditions or situation which prevented
the return of the child to the home, stating “the state has not facilitated matching this family with
resources to try to get them to attempt to ratify the problems that brought the children before the
court.” In addition, the court found, “There are still conditions that persist that the Court does not
know if they could have been effectively remedied.” Despite the court’s finding regarding the
Department’s lack of help to the family, the trial court still found there was little likelihood the
conditions would be improved.

        The trial court however, appears to have been persuaded that the Department was not
required to use reasonable efforts to reunify this family and did not place the burden of proving such
efforts on the Department.

        Therefore, I would vacate the judgment terminating parental rights and remand for a hearing
on persistence of conditions ground, using the appropriate standards. Thus, I agree with the majority
that the judgment should be vacated, but for different reasons.



                                                __________________________________________
                                                PATRICIA J. COTTRELL, JUDGE




                                                  -10-
