                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                              Assigned on Briefs April 1, 2003

               In The Matter Of: T.B.S. and A.K.S.
STATE OF TENNESSEE DEPARTMENT OF CHILDREN’S SERVICES v.
         NANCY KATHERINE JOHNSON SHORTT, ET AL.

                     Appeal from the Juvenile Court for Jackson County
                  No. 4075A-3-123 and 4075B-3-123     Jimmy White, Judge



                     No. M2002-02920-COA-R3-JV - Filed June 10, 2003


This case concerns the question of what constitutes reasonable efforts to reunify dependent and
neglected children with the birth parents prior to the termination of parental rights. The trial court
held that reasonable efforts were made. This Court affirms the termination as to both parents’ rights.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S., and
PATRICIA J. COTTRELL, J., joined.

Michael Savage, Livingston, Tennessee, for the appellant, Nancy Katherine Johnson Shortt.

Paul G. Summers, Attorney General & Reporter, and Elizabeth C. Driver, Assistant Attorney
General, for the appellee, Tennessee Department of Children’s Services.

                                             OPINION

       The Tennessee Department of Children’s Services commenced this action by filing a Petition
for Temporary Custody on May 17, 2000. In that Petition, the State averred the following as grounds
for temporary custody:

                                                  I
               It is upon Petitioner’s information and belief that the above-named children
       are dependent and neglected children within the meaning of the law in that [T.S.] and
       [A.S.] have previously been in Foster Care due to chronic neglect caused by their
       mother’s mental limitations and inability to parent and their father’s alcoholism. The
       children were returned to the custody of the parents on 7-19-1999 with restrictions
       that the children should not be left alone with Nancy Shortt and the father not to
       consume any alcoholic beverage.
                   On 5-15-2000, a report was received by DCS that Mr. Marvin Shortt was
           highly intoxicated. Patricia Green, Case Manager, DCS and Jackson County Chief
           Deputy, David Pigg went to the house and observed Mr. Shortt in an intoxicated
           condition. Nancy Shortt and the children were at the home of her mother, Mary
           Johnson Boles, who the department does not consider to be a proper custodian of
           children due to her allowing Nancy Shortt to be sexually abused. Nancy’s mental
           limitations prevent her from properly [caring] for the children. Marvin Shortt has a
           history of drunken binges which prevented him from properly caring for the children
           ....

        This petition was accompanied by an affidavit as required by Tennessee Code Annotated
section 37-1-166(c). In that affidavit the State alleges that these children were previously in state
custody and were returned to the parents on July 19, 1999. Counsel and guardian ad litem were
appointed and a Protective Custody Order entered on May 17, 2000.

         The Department drafted, and Mrs. Shortt signed parenting plans for T.B.S. and A.K.S. on
June 15, 2000. On page 4 of T.B.S.’s parenting plan, the barrier to permanency is listed as “Mrs.
Shortt has a psychiatric disorder and developmental disability that seriously impairs the ability to
meet the children’s needs. The children have long history with DCS. The children were removed
during another incident when [A.K.S.]’s formula tested positive with 0/25 V/V%.” Also listed under
the required change portion of the action plan for permanency is the following condition. “Mrs.
Shortt’s condition must be stabilized and she must consistently demonstrate specific skills that show
her ability to parent her child-children (12-01-00).” This plan was approved by the juvenile court
on July 24, 2000. A.K.S.’s plan was approved on the same day and contains the same barrier and
suggested plan of action. In addition, on page nine of A.K.S.’s parenting plan the state lists the
following as barrier to permanency: “The marital relationship of Mr. Shortt and Mrs. Shortt poses
a risk to the children as evidenced by reports of Marvin emotionally abusing Nancy through verbal
comments and by the fact that he was picked up on 08-24-96 due to being intoxicated and he was
afraid he would harm Nancy and [T.B.S.].” Pursuant to the parenting plans executed by the
department and the parents, Mrs. Shortt was to receive psychological evaluation.1 The final hearing
on the petition was postponed several times for the purpose of obtaining a psychological evaluation
of the mother and so that the father could attend Alcoholic’s Anonymous meetings and alcohol and
drug treatment. The adjudication and disposition hearing of this petition for temporary custody
occurred on November 7, 2001. In its order filed July 22, 2002 the trial court found that the children
were dependent and neglected within the meaning of the statutes:

                  Upon the evidence presented, argument of counsel, and the entire record,
           from all of which the Court finds that the above-named children are dependent and
           neglected within the meaning of the law; and victims of severe child abuse
           perpetrated by Marvin Shortt; that Nancy Shortt’s mental incapacity renders her


           1
               Although these plans were subsequently amended, these barriers and action plan were in the subsequent plans
as well.

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         unable to parent and care for the children; and due to Marvin Shortt’s alcoholism,
         failure to properly control and parent the children, physical violence and sexual abuse
         or exploitation of the children; that there is no less drastic alternative to removal
         and/or to make it possible for the children to return home in that the D.C.S. entered
         into a safety plan while the children were in the parents’ home; but the parents’
         violation of that safety plan necessitated the children being returned to foster care;
         continuation of the children in the parent or legal guardian’s custody is contrary to
         the best interest of the children; and that it is in the best of said children and the
         public . . . that the State of Tennessee, Department of Children’s Services, retain
         temporary legal custody of said minor children along with the authority to consent
         to necessary medical, surgical, hospital, institutional care, or educational enrollment,
         pending further order of this Court.

        Consistent with prior orders of the Court, Dr. William R. Sewell preformed an evaluation of
the Appellant mother, Nancy Katherine Shortt, on June 8, 2001. In that evaluation the doctor made
the following recommendations:

         It is recommended that if the Department of Children’s Services decides to return the
         children to this home that there be a functional adult as a care manager for the
         children. Ms. Shortt’s level of intelligence, her tendency toward erratic emotional
         expressions, her weakness in demonstrating satisfactory disciplinary measures in
         parent-child settings, her unwillingness to engage in treatment, and her dependent
         personality characteristics indicate that counseling be recommended in this case.
         However, it should be noted that the success of counseling would be extremely
         limited due to the low intellectual level, lack of trust of others and unwillingness to
         engage in treatment activities.

        On April 30, 2002, the Department filed a Petition for Termination of Parental Rights
alleging as grounds for the termination the parental rights of Marvin Shortt, willful failure to visit
or to contribute to the support of the children.2 The Department alleged that Nancy Katherine Shortt,
along with Marvin Shortt, made no reasonable efforts to provide a suitable home. In addition, the
Department alleged the following facts:

                 The Defendant (mother), Nancy Katherine Shortt, has not substantially
         complied with the provisions of the permanency plan, which is attached as Exhibit
         A. Specifically, she has not successfully completed parenting classes, she has not
         stabilized her condition or demonstrated her ability to properly parent her children,
         she continues to have relationships with men and A&D issues and she has not
         participated in a domestic violence course.



         2
            Marvin Shortt is not be fore the Court on appe al of the termination order. T he M other Nancy K atherine Sho rtt
is the only party ap pellant.

                                                            -3-
                Nancy Katherine Shortt was advised on June 15, 2000 and May 21, 2001 that
       failure to comply with permanency plan was grounds for termination of parental
       rights.
                The Defendant (father), Marvin Lloyd Shortt, has not substantially complied
       with the provisions of the permanency plan, which is attached as Exhibit A.
       Specifically, he has not successfully completed A&D treatment, he continues to
       consume alcoholic beverages, he refuses to go for a psychosexual evaluation, he has
       not successfully completed parenting classes, he has not completed counseling for
       domestic violence and he has not visited the children as required.
                Marvin Lloyd Shortt was advised on June 15, 2000 and May 21, 2001 that
       failure to comply with the permanency plan was grounds for termination of parental
       rights.

       This Petition was heard on July 22, 2002. Although counsel for the mother was present, the
mother absented herself from the proceedings. As a result the court heard testimony from the
mother’s case worker Angelia Bullock and Nancy Kington, the children’s foster mother. In addition,
the court considered the deposition of Dr. Sewell and Dr. Sanger. Of particular interest is the
testimony of Angelia Bullock. Upon direct examination by Ann Austin counsel for the Department,
Ms. Bullock gave the following testimony concerning the efforts taken by the Department and by
Ms. Shortt concerning establishing home for the children:

               Q.     During the four months following removal on May 17th, 2000, did the
       Department of Children’s Services make every reasonable effort to provide services
       to Marvin Lloyd Shortt and Nancy Katherine Shortt to assist them in establishing a
       home suitable for these children?
                A.    Yes.
                Q.    And did they, were they able to make or did they make reasonable
       efforts themselves to establish a suitable home for these children?
                A.    No.
                Q.    And does it appear likely that they will be able to establish a suitable
       home for their children in the near future?
                A.    No.
                Q.    Nancy Katherine Shortt, is it true that she has not substantially
       complied with the provisions of her permanency plan?
                A.    Yes.
                Q.    She’s not successfully completed parenting classes, has she?
                A.    No.
                Q.    And she’s not stabilized her condition or demonstrated an ability to
       properly parent the children, is that correct?
                A.    Yes, that’s correct.
                Q.    Does she continue to have relationships with men with alcohol and
       drug issues and who are also violent towards her?
                A.    Yes.


                                                -4-
        Q.       Tell us the last incident she has told you, Nancy Shortt, regarding a
paramour, a live-in paramour that had alcohol or drug issues and violence towards
her.
        A.       Yes. She’s [sic] currently has a paramour that lives with her. I don’t
know if you want me to say his name or not.
        Q.       Go ahead.
        A.       Jerry Byrd Smith is his name. And I sort of had my suspicions that
he may drink and stuff when I’d do visits. Because he would shake uncontrollably
and all of that stuff. Well, she admitted to me - - it was in May, the month of May.
        Q.       May of 2002?
        A.       Yes, of this year. That he does physically abuse her. And even worse
when he drinks liquor, she said.
        ....
        Q.       And the Court at the last hearing made a finding that he did; they were
victims of severe child abuse based on this sexual abuse, is that correct?
        A.       Yes.
        Q.       Based on your observations of Katherine, Nancy Katherine Shortt, is
she mentally competent to provide for the care of these children?
        A.       No.
        Q.       What have you seen that concerns you about her competency to care
for these children?
        A.       Appointments that I’ve made for her, I would be concerned. Because
she won’t get on the bus, or she forgets. [T.] and [A.] both have to see a psychiatrist
once a month. And I would be so scared that she wouldn’t get them to their
appointments every month, as well as school. Her friend, Melissa, pays all of her
bills for her. Her neighbor friend, Melissa. And gives her the change left over.
Because Ms. Shortt told me she can’t count.
        Q.       Let me interrupt you. Is this friend Melissa an individual who
provides her transportation to court and other places she needs to go?
        A.       Yes. She takes her yard-saling, too, every Saturday.
        Q.       Go ahead.
        A.       That would be my concern, that she wouldn’t be able to get them to
these appointments. My other concern, of course, is living with Mr. Jerry Byrd
Smith. He’s still on her lease at the subsidized housing she lives at.
        Q.       Let me interrupt a minute there. Have there been other men that Ms.
Shortt had live with her or stay in her home for periods of time that have also caused
you concern before Mr. Smith came into the picture?
        A.       Oh, yes. There was another male figure. I’ll have to look at the
paperwork. It was sometime last year that when I did a home visit, he was on the
floor on a mattress. And when I knocked on the door, Nancy opened it. And he
jerked the covers over him, and there was beer bottles laying around everywhere. His
name was Bill Spivey. He is deceased now. Then there was another man that I went
in on a home visit. And there was beer bottles laying everywhere, the quart-sized


                                          -5-
       beer bottles. And when I asked his name, she told me she didn’t know his name.
       She couldn’t remember.
               Q.     Did she identify what his relationship was with her, this man?
               A.     Yeah. That he was her new boyfriend. Yes.
               Q.     In your opinion, is there any likelihood that these conditions would
       be remedied at an early date so the children can be returned to either parent in the
       near future?
               A.     No.

        The pertinent findings of fact as memorialized in the decree signed the 11th of October 2002
are as follows:

       6.      Nancy Katherine Shortt has not demonstrated acceptable responses
               to typical child behavior and continues to live with men who abuse
               alcohol and abuse her. The Court finds that all of these requirements
               are reasonable and related to the reasons the children came into foster
               care or reasons that prevent the children from returning to Ms.
               Shortt’s care. Both of these requirements are of significant
               importance in determining whether the children can be safely returned
               home. Ms. Shortt has complied with the requirement that she have
               a psychological evaluation and parenting assessment, but while these
               are necessary to determine if Ms. Shortt is capable of parenting
               children, compliance is not of significant importance as to whether
               the children can be safely returned to Ms. Shortt. Nancy Katherine
               Shortt has been substantially non-compliant with the statement of
               responsibilities in the permanency plans.

       7.      The children have been removed from the custody of the parents more
               than six (6) months. The conditions that led to the children’s removal
               still exist or other conditions exist which would in all probability
               subject the children to further neglect or abuse if returned home.
               There is little likelihood that these conditions will be remedied at an
               early date so that the children could be returned to the Defendant in
               the near future. The continuation of the parent/child relationship
               greatly diminishes the children’s chances of early integration into a
               stable and permanent home. Nancy Katherine Shortt’s mental
               incapacity to care for the children on her own and Marvin Lloyd
               Shortt’s alcoholism are conditions that caused the children’s removal
               that still exists. The deposition of William R. Sewell, Ph.D. was
               admitted as an exhibit. Dr. Sewell opined that Nancy Katherine
               Shortt was not capable of providing for the care of these children
               without extraordinary services, such as a competent adult living full
               time in the home with her and providing full time care for the


                                                -6-
              children. DCS is not required to have someone in the home 24 hours
              a day, seven days a week in order for Nancy Shortt to have the
              children live in her home. Other conditions also exist that prevent the
              children from returning home. The deposition of Maureen Sanger,
              Ph.D. was admitted as an exhibit. From the testimony of Dr. Sanger
              and the foster mother, Nancy Kington, there are sufficient facts to
              find that Marvin Shortt sexually abused these children. Nancy Shortt
              has admitted to Angie Bullock that she is currently living with a man
              who abuses alcohol and beats Nancy.

               ....

       10.     It is in the best interest of these children that all the parental rights of
               said Defendants to said children be forever terminated and that the
               complete custody, control, and guardianship of said children be
               awarded to the State of Tennessee, Department of Children’s
               Services, with the right to place said children for adoption and to
               consent to said adoption in loco parentis. Marvin Lloyd Shortt and
               Nancy Katherine Shortt have not made an adjustment of
               circumstances, conduct or conditions as to make it in the children’s
               best interest to return to either’s home in the foreseeable future.
               Marvin Shortt and Nancy Shortt’s mental or emotional status would
               be detrimental to the children and prevent them from effectively
               providing for the care and supervision of the children . . . .

        From the Order terminating her parental rights, Ms. Shortt appeals. Ms. Shortt argues on
appeal that since no Affidavit of Reasonable Efforts was filed in the termination proceeding, no
competent evidence exists of reasonable efforts taken on behalf of DCS to reunify the family. She
relies on Tennessee Code Annotated section 37-1-166(c), which states:

       To enable the court to determine whether such reasonable efforts have been made the
       department, in a written affidavit to the court in each proceeding where the child’s
       placement is at issue, shall answer each of the following questions: (1) is removal
       of the child from the child’s family necessary in order to protect the child, and, if so,
       then what is the specific risk or risks to the child or family that necessitates removal
       of the child?; (2) What specific services are necessary to allow the child to remain in
       the home or to be returned to the home?; (3) What services have been provided to
       assist the family and the child so as to prevent removal or to reunify the family?; and
       (4) Has the department had the opportunity to provide services to the family and the
       child, and, if not, then what are the specific reasons why services could not have ben
       provided?”




                                                   -7-
        It is well settled that the fundamental rights to care, custody and control of children as
enumerated in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), are not
absolute. Upon clear and convincing evidence showing that the best interests of the children would
be served by the termination under the applicable statute, these rights may be terminated. See
Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re: Drinnon, 776
S.W.2d 96, 97 (Tenn. Ct. App. 1988); Tennessee Dep’t of Human Services v. Riley, 689 S.W.2d 164,
165 (Tenn. Ct. App. 1984). See also, Riley, 689 S.W.2d at 169. Clear and convincing evidence
establishes ample grounds for terminating the parental rights of Nancy Katherine Johnson Shortt.
In Re C.W.W., 37 S.W.3d 467, 474 (Tenn.Ct.App. 2000). The court had ample evidence of the
efforts taken by the Department to secure counseling, evaluation and treatment with an
uncooperative mother. The court likewise had ample evidence of the mother’s continued behavior
contrary to that provided for in the permanency plans. This Court’s Eastern Section considered this
argument in State of Tennessee, Dep’t of Children’s Services v. Malone, No. 03A01-9706-JV-00224,
1998 WL 46461 * 1-2 (Tenn. Ct. App. E.S., Feb. 5, 1998). In considering that argument the Court
found the proper standard that enumerated in section 113 to be:

       (1) 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)(2)(2002).

       This standard has been uniformly applied throughout the state. See generally In Re C.W.W.,
37 S.W.3d 467 (Tenn. Ct. App. 2000); Stokes v. Arnold, 27 S.W.3d 516 (Tenn. Ct. App. 2000); see
also Jones v. Garrett, 92 S.W.3d 835 (Tenn. 2002).


        Having reviewed the record on appeal this Court finds that clear and convincing evidence
exists to support the finding of the trial court and the termination of mother’s rights. The Order of
the court is affirmed in all respects; the cause is remanded for further proceedings as necessary.

       Costs of this cause are assessed against Appellant.




                                                      ___________________________________
                                                      WILLIAM B. CAIN, JUDGE


                                                -8-
