                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     April 3, 2001 Session

      IN THE MATTER OF: A.M.B., D.O.B. 6-13-95, A CHILD UNDER
                 EIGHTEEN (18) YEARS OF AGE

                      Appeal from the Juvenile Court for Putnam County
                           No. 162-TC     John P. Hudson, Judge


                      No. M2000-01130-COA-R3-CV - Filed June 1, 2001


The only question involved in this appeal is whether it was in the best interests of a minor child to
terminate the parental rights of the child’s mother. The Juvenile Court of Putnam County found that
fact against the mother. We affirm.

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

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

Mary Dee Allen, Cookeville, Tennessee, for the appellant, R.B.

Paul G. Summers, Attorney General and Reporter; Douglas Earl Dimond, Assistant Attorney
General, for the appellee, State of Tennessee, Department of Children’s Services.

                                             OPINION

                                                  I.

        R.B. a sixteen-year-old unmarried woman, gave birth to a male child, A.M.B., on June 13,
1995. In February of 1997 R.B. married A.F. Approximately one week later Putnam County
paramedics responded to an emergency call and found A.M.B. near death. An examination revealed
injuries to the child that were consistent with severe child abuse that had occurred over several days.
R.B. said the child had fallen down the stairs and had the flu.

        The State Department of Children’s Services (DCS) petitioned the Juvenile Court of Putnam
County for custody of the child based on medical opinions that his injuries were the result of abuse.
A.F., the stepfather, ultimately entered a guilty plea and received an eleven year prison sentence for
his part in the abuse. R.B. entered a best interest plea to child abuse and received a four year
suspended sentence.
        In March of 1997 DCS developed a plan of care to help R.B.obtain custody of A.M.B. Her
responsibilities included attending counseling sessions to address three issues: the failure to protect
A.M.B., the failure to obtain medical treatment for him, and who was the perpetrator. R.B.
completed a parenting class, but the class did not address the issue of child abuse. She attended
other counseling sessions sporadically, although the fault for the irregular schedule was not entirely
hers. The critical fact that emerged from these sessions, however, was her failure to identify A.F.
as the perpetrator of the abuse. Although she divorced A.F. in January of 1999, R.B. continued to
be ambivalent about whether he had actually abused the child. As late as April of 1999 R.B. spoke
fondly of A.F. and how loving and caring he had been to the boy. At times she maintained that he
had been hurt in the fall. At other times she conceded that it was possible A.F. had been the
perpetrator.

                                                  II.

         Parents have a fundamental right to the care, custody, and control of their children. Stanley
v. Illinois, 405 U.S. 645 (1972); Nale v. Robertson, 871 S.W.2d 674 (Tenn. 1994). To terminate that
right the State must show by clear and convincing evidence that grounds exist for the termination
and that it is in the best interest of the child. Tenn. Code Ann. § 36-1-113(c)(1)(2); In Re Drinnon,
776 S.W.2d 96 (Tenn. Ct. App. 1988). One of the grounds listed in the statute is severe child abuse.
Tenn. Code Ann. § 36-1-113(g)(4). R.B. does not deny that the State has met that requirement by
clear and convincing evidence. She does attack the proof used to establish the fact that termination
of her parental rights is in the best interest of the child.

       In making a best interest decision the legislature has established some factors for the courts
to consider.

       (i) 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:
       (1) Whether the parent or guardian has made such an adjustment of circumstance,
       conduct, or conditions as to make it safe and in the child’s best interest to be in the
       home of the parent or guardian;
       (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;
       (3) Whether the parent or guardian has maintained regular visitation or other contact
       with the child;
       (4) Whether a meaningful relationship has otherwise been established between the
       parent or guardian and the child;
       (5) The effect a change of caretakers and physical environment is likely to have on
       the child’s emotional, psychological and medical condition;
       (6) Whether the parent or guardian, or other person residing with the parent or
       guardian, has shown brutality, physical, sexual, emotional or psychological abuse, or
       neglect toward the child, or another child or adult in the family or household;



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      (7) Whether the physical environment of the parent’s or guardian’s home is healthy
      and safe, whether there is criminal activity in the home, or whether there is such use
      of alcohol or controlled substances as may render the parent or guardian consistently
      unable to care for the child in a safe and stable manner;
      (8) Whether the parent’s or guardian’s mental and/or emotional status would be
      detrimental to the child or prevent the parent or guardian from effectively providing
      safe and stable care and supervision for the child; or
      (9) Whether the parent or guardian has paid child support consistent with the child
      support guidelines promulgated by the department pursuant to § 36-5-101.

Tenn. Code Ann. 36-1-113(i).

       After hearing the proof, the trial judge made the following findings of fact:

                The Court finds that the Defendant, R.B.F., has willfully abandoned the minor
       child, A.M.B., in that for the four (4) months following removal DCS has made
       reasonable efforts to assist the parent in establishing a suitable home for the child, but
       the parent has made no reasonable effort to provide a suitable home and has
       demonstrated a lack of concern for the child to such a degree that it appears unlikely
       that she will be able to provide a suitable home at an early date; that she has been
       substantially non-compliant with the statement of responsibilities in the permanency
       plan in that she has not successfully completed mental health counseling that
       addressed the issues of her failing to protect the child from severe abuse, failing to
       obtain timely medical treatment for the child and identification of the perpetrator of
       severe abuse against the child; that the child has been removed from the custody of
       the parent more than six (6) months; that the conditions that led to the child’s
       removal still exist or other conditions exist which would in all probability subject the
       child to further neglect or abuse if returned home, in that R.B.F. has not successfully
       completed mental health counseling and has never taken responsibility for her role
       in this child’s severe abuse and has not taken responsibility for her failure to obtain
       timely medical treatment for this child, which almost resulted in this child’s death;
       there is little likelihood that these conditions will be remedied at an early date so that
       the child could be returned to the Defendant in the near future; that the continuation
       of the parent/child relationship greatly diminishes the child’s chances of early
       integration into a stable and permanent home; that she has committed severe child
       abuse as defined by T.C.A. 37-1-102 against A.B. by either severely abusing the child
       or failing to protect the child from severe abuse and by neglecting to obtain timely
       medical treatment for this severely injured child, which almost result in this child’s
       death; that she has been sentenced to more than two (2) years’ imprisonment for
       conduct against A.B. which is found to be severe child abuse; that A.B. has adjusted
       well in his foster home, has bonded with the foster parents, who are willing to adopt
       him if he becomes available for adoption and is in great need of permanency as soon
       as possible according to his mental health counselor; and it is, therefore, in the best
       interest of said child and the public that all of the Defendant’s parental rights to said
       child be forever terminated and that the complete custody, control, and guardianship


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         of said child should now be awarded to the State of Tennessee, Department of
         Children’s Services, with the right to place said child for adoption and to consent to
         such adoption in loco parentis.

         R.B. does not attack the findings directly; her chief complaint is that DCS did not provide
her with proper counseling. In her brief she argues that “[T]hrough no fault of her own [she] was
never able to establish any type of relationship with any counselor.” One counselor, however, who
met with R.B. from December of 1998 to May of 1999 testified that R.B. never acknowledged that
she hurt the child or that she would have allowed anyone else to do so. She repeatedly went back
to her story that he fell down some steps the day before, that she had a dental appointment on the day
he became critically ill, and that it was not until about 10:00 p.m. when he stopped breathing that
she knew he was in acute distress. In light of the medical evidence of the child’s injuries, this view
of what happened hardly seems rational, and the counselor testified that the failure to acknowledge
what actually happened would pose a great danger to the child if he were to be returned to R.B.

        We think the evidence sustains the trial judge’s finding that the State used reasonable efforts
to provide counseling to R.B.1

        Having crossed that barrier we think the evidence is clear and convincing that the best
interest of the child will be served by terminating R.B.’s parental rights. He has now been in State
custody for four years, and he is at a critical stage, the early part of his education. He needs the
stability that only a family can provide. If R.B. has been unable to come to terms with her role in
the events that led to the child’s removal, there is no future in sight for the child as long as she has
a parental role.

       The judgment of the court below is affirmed and the cause is remanded to the Juvenile Court
of Putnam County for any further proceedings that may be necessary. Tax the costs on appeal to
R.B.



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




         1
           The State contends that they were not under an obligation to provide counseling to R.B. bec ause her abuse of
the child amounted to “aggra vated circumstances” under Tenn. Code Ann. § 36-1-102 (48). The requirement of making
reasonab le efforts to preserve and reunify families is removed under these circumstances by 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 R.B. and the child.

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