                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                        October 11, 2004 Session

     IN THE MATTER OF: D.C. AND S.C., STATE OF TENNESSEE
  DEPARTMENT OF CHILDREN'S SERVICES v. KAREN CAREY, ET AL.

                   A Direct Appeal from the Juvenile Court for Benton County
                      No. 3007    The Honorable Clyde W. Watson, Judge



                      No. W2004-00472-COA-R3-PT - Filed November 3, 2004


        This is a termination of parental rights case. Mother appeals from the order of the Juvenile
Court of Benton County, terminating her parental rights on the grounds of persistence of conditions.
Specifically, Mother asserts that the trial court erred in admitting evidence of an event that occurred
after the Petition to Terminate had been filed, that the termination of her parental rights is not
supported by clear and convincing evidence in the record, and that termination is not in the best
interest of the children. We reverse and remand.


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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,
J. and DAVID R. FARMER , J., joined.

Jason W. Pearcy, Camden, For Appellant, Karen Carey

Paul G. Summers, Attorney General and Reporter; Julie Randall Pablo, Assistant Attorney General,
For Appellee, Tennessee Department of Children's Services

                                                   OPINION

        Karen Carey (“Carey,”“Mother,” or “Appellant”) is the mother of the two minor children at
issue in this case, D.C. (d.o.b. 5/8/91) and S.C. (d.o.b. 9/29/92). The natural father of D.C. and S.C.
is Frank Carey.1




         1
           On April 28, 2004, a Default Judgment was entered against Frank Carey, terminating his parental rights. He
is not a party to this appeal.
        On November 5, 2001, the Department of Children’s Services (“DCS,” or “Appellee”) filed
a “Petition for Temporary Custody,” based upon the following information:

               ...[I]t has been reported that the mother of the children, Karen Carey,
               is an alcoholic and beats the children when she is drunk. The
               children have stated that their mother drinks all the time, becomes
               belligerent when she is drunk, and physically abuses them. [D.C.] has
               reported that her mother has attempted to choke her and hits her with
               her fists. The children report that there are often men in the house
               when their mother drinks and later passes out. Both children have
               made statements that indicate possible sexual abuse by these men. It
               has been reported that these children roam the neighborhood when
               their mother is passed out and, on one occasion, a neighbor found
               [S.C.] on Interstate 40 attempting to hitchhike. The home had
               cockroaches, bags of garbage throughout, and an outdoor toilet inside
               the house. Karen Carey does not have a job at this time, having been
               terminated from her last job for being drunk at work. There have
               been several arrangements made to help Karen Carey enter treatment,
               but she has refused to enter treatment.

A “Protective Custody Order” was entered that same day, placing the children in the temporary
custody of their aunt, Rosemary Strickland. At a November 6, 2001 hearing, the trial court found
probable cause of dependency and neglect due to alcohol use, physical abuse, and lack of supervision
on the part of Carey and entered an “Interim Order” on December 31, 2001, by which the children
were to remain in Ms. Strickland’s custody and counsel was appointed for Carey. At a December
18, 2001 hearing, Carey agreed to have custody remain with Ms. Strickland. She further agreed to
participate in an inpatient treatment program and to attend AA meetings, parenting classes, and anger
management counseling. These requirements were set out in the trial court’s Order of February 12,
2002. Additionally, the Order required Carey to have a stable home, seek employment, pay support
after procuring a job, and remain sober.

         The parties returned to court on April 9, 2002. At that time, the trial court found that Carey
had not remained sober. By Order of June 18, 2002, overnight visitation was suspended, supervised
visitation was reinstated, Carey was ordered to avoid contact with any users of alcohol, to submit to
random alcohol screens three times per month, and to continue working on the goals set forth in the
previous orders. Following a July 16, 2002 hearing, the trial court entered an Order on September
17, 2002 allowing Carey unsupervised visitation with the children once per week, and reiterating that
Carey was to comply with all requirements contained in previous orders. Following a hearing, on
October 8, 2002, custody of the children was given to DCS and Carey was ordered to pay child
support in the amount of $53.00 per week.

       On October 24, 2002, Permanency Plans were entered for both the children. The Permanency
Plans were signed by Carey and incorporated all of the requirements that Carey was ordered to


                                                 -2-
complete in the trial court’s previous orders. A Quarterly Review was conducted on November 19,
2002 and it was noted that no progress had been made toward reducing risks that necessitate
continued foster care. Additional reviews were conducted on April 15, 2003 and November 16,
2003. At both of these subsequent reviews, it was noted that Carey had made no progress toward
reducing the risks that necessitated removal of her children.

         On December 4, 2002, Carey was arrested in Benton County for her third DUI.2 According
to the record, the children were in the vehicle with her at the time. Carey pled guilty to this offense
and was sentenced to eleven months and twenty-nine days in jail. All but one-hundred twenty days
were suspended.

       A hearing was held on December 10, 2002, at which the Permanency Plans were approved
by the trial court and the children were found to be dependent and neglected due to Carey’s
noncompliance with several previous court orders and because Carey was scheduled to begin her jail
sentence on December 11, 2002. An Order to this effect was entered on February 18, 2003.

        On September 29, 2003, DCS filed a “Petition to Terminate Parental Rights” (the “Petition”)
DCS asserted numerous grounds, including Carey’s willful failure to obey the trial court’s orders,
willful abandonment based on failure to provide more than token support, showing a wanton
disregard for the welfare of the children, failure to maintain suitable housing, despite DCS’
reasonable efforts to assist, failure to substantially comply with the Permanency Plans, and
persistence of conditions. A Guardian Ad Litem was appointed by Order of November 13, 2003.
Carey answered the Petition on November 14, 2003.

       On October 21, 2003, Carey was arrested in Benton County for her fourth DUI offense. At
the time of the hearing in this case, Carey’s criminal case was still pending.

       This matter was heard by the trial court on November 17, 2003. An “Order Terminating
Parental Rights and Decree of Guardianship” (the “Final Order”) was entered on January 12, 2004.
The Final Order reads, in pertinent part, as follows:

                [T]he Court finds upon clear and convincing evidence that the
                Petition To Terminate Parental Rights filed by the State of Tennessee,
                Department of Children’s Services, is well taken as to Respondent,
                Karen Carey, and should be sustained and relief granted thereunder
                for the causes therein stated, and the Court makes the following
                findings of fact and conclusions of law.

                      Regarding the requirements in the permanency plan that Ms.
                Carey will have another alcohol and drug assessment, will comply


        2
          Carey’s first DUI was on July 19, 1993 in Hickman County. Her second offense was on February 2, 2000
in Benton County.

                                                     -3-
with its recommendations, including attending short term or long
term in-house treatment if recommended, and attend AA meetings
once per week, Ms. Carey did have another assessment in October
2003. There was testimony presented that recently Ms. Carey has not
substantially attended AA meetings and that she did not find the
meetings worth attending. The plan requires that counseling include
sessions on anger management, parenting, learning to communicate
without making threats, and random alcohol screens. Ms. Carey
signed release forms and participated in a parenting class in October
2003. There were alcohol screens done which were not positive, but
she did not submit to the blood alcohol test following her arrest on
charges of fourth offense DUI. The plan requires that Ms. Carey will
learn to understand the dangers of exposing the girls to people who
are drinking excessively, and the Court is unsure that she complied
with that in any way. The plan requires that Ms. Carey provide
information regarding the father of the children, which she has done.
The Court finds that Ms. Carey did comply with several of the tasks
in the permanency plan.

       However, the Court finds that Ms. Carey has not been
completely truthful to the Court. Ms. Carey testified that she has had
nothing to drink for two years. However, the officer testified that, at
the time of her most recent arrest she smelled of alcohol, that she
staggered when she walked, she had slurred speech, and she refused
to submit to the blood alcohol test.

        The Guardian Ad Litem, John Whitworth, pointed out what
the Court finds is the most important issue in this case, that the
children were taken from Ms. Carey because she was endangering the
children with her alcohol and/or drug use. The Guardian Ad Litem
pointed out that after the children had been removed from the home
approximately one year, the children were allowed to return for a
period of visitation. Ms. Carey had the children in the vehicle with
her when she was arrested and convicted of a third offense of driving
under the influence. Ms. Carey says that it was due to the
prescription drugs that she was using, but the Court has some
question after hearing all the testimony and hearing from the girls as
to whether or not that was true. Now she has a pending fourth
offense DUI and Driving on a Revoked License.

       The case worker has testified that when she talked with Ms.
Carey to try to help her and to tell her what she needed to do, she was
argumentative. The case worker testified that Ms. Carey refused to


                                 -4-
listen. The Court finds that Ms. Carey did not absorb anything the
case worker was trying to tell her.

        Obviously the children have been removed from the home of
the parent by order of this Court for a period of six (6) months; a
condition which led to the children’s removal still persists, which in
all reasonable probability would cause the children to be subjected to
further abuse and neglect and which, therefore, prevent the children’s
safe return to the care of Karen Carey; there is little likelihood that
these conditions will be remedied at an early date so that these
children can be returned safely to Karen Carey in the near future; and
the continuation of the legal parent and child relationship greatly
diminishes the children’s chances to return to a safe and stable
permanent home.

       The Court finds that [DC] and [SC] are obviously outgoing
and very intelligent. They deserve a chance in life.

        The Court finds by clear and convincing evidence that it is
also in the best interest of the children, . . . for reasons stated above,
that the parental rights of Karen Carey to the children be forever
terminated and that custody, control, and partial guardianship of the
children be awarded to the State of Tennessee, Department of
Children’s Services, with the right to place the children for adoption
and to consent to such adoption in loco parentis ....

        The Court finds that the Department of Children’s Services
has exercised reasonable efforts to prevent removal and reunify the
family.

                *               *                *

     IT IS, THEREFORE, ORDERED, ADJUDGED AND
DECREED:

                *               *                *

2. That all parental rights of Karen Carey, to the children, . . . are
hereby forever terminated; that the complete custody, control, and
partial [sic] guardianship of said children is hereby awarded to the
State of Tennessee, Department of Children’s Services, with the right
to place the children for adoption and consent to such adoption in
loco parentis....


                                    -5-
        Carey appeals and raises three issues as stated in her brief:

                1. Whether the trial court erroneously terminated the Appellant’s
                parental rights based on “persistence of conditions.”

                2. Whether the trial court erroneously admitted evidence that
                occurred after D.C.S. had filed the Petition to Terminate the
                Appellant’s Parental Rights.

                3. Whether the trial court erroneously held that it was in D.C. and
                S.C.’s best interest to terminate their mother’s parental rights.

        Since this case was tried by the court sitting without a jury, we review the trial court’s factual
findings de novo accompanied by a presumption of correctness unless the preponderance of the
evidence is otherwise. Tenn. R. App. P. 13(d); Campbell v. Fla. Steel Corp., 919 S.W.2d 26, 35
(Tenn.1996). The trial court’s legal conclusions are reviewed de novo with no presumption of
correctness. Campbell, 919 S.W.2d at 35. When the resolution of the issues in a case depends upon
the truthfulness of witnesses, the trial judge, who has the opportunity to observe the manner and
demeanor of the witnesses as they testify, is in a far better position than an appellate court to
determine credibility. McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.1995); Whitaker v.
Whitaker, 957 S.W.2d 834, 837 (Tenn.Ct.App.1997). Therefore, the weight, faith, and credit to be
given to any witness’ testimony will be given great weight by the appellate court. In re Estate of
Walton v. Young, 950 S .W.2d 956, 959 (Tenn.1997); Whitaker, 957 S.W.2d at 837.

        The standard for the termination of parental rights is well settled. The United States Supreme
Court has recognized the important nature of cases involving the termination of parental rights,
stating that “[f]ew consequences of judicial action are so grave as the severance of natural family
ties.” M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v. Kramer, 455 U.S. 745 (1982)
(Rehnquist, J., dissenting)). Accordingly, “the interest of parents in their relationship with their
children is sufficiently fundamental to come within the finite class of liberty interests protected by
the Fourteenth Amendment.” Id. The constitutional protections of the parent-child relationship
require certain safeguards before the relationship can be severed. See O'Daniel v. Messier, 905
S.W.2d 182, 186 (Tenn.Ct.App.1995) (rev'd on other grounds, In re: Swanson, 2 S.W.3d 180
(Tenn.1999)).

        As a safeguard, courts are required to apply the heightened “clear and convincing” proof
standard. See Santosky, 455 U.S. at 769; O'Daniel, 905 S.W.2d at 186. To justify the termination
of parental rights, the grounds for termination must be established by clear and convincing evidence.
See Tenn.Code Ann. § 36-1-113(c)(1) (Supp.2003); State Dep't of Human Servs. v. Defriece, 937
S.W.2d 954, 960 (Tenn.Ct.App.1996). Although it does not require as much certainty as the “beyond
a reasonable doubt” standard, the “clear and convincing evidence” standard is more exacting than
the “preponderance of the evidence” standard. O'Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn.
Ct. App.1995); Brandon v. Wright, 838 S.W.2d 532, 536 (Tenn. Ct. App.1992). In order to be clear


                                                   -6-
and convincing, evidence must eliminate any serious or substantial doubt about the correctness of
the conclusions to be drawn from the evidence. Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901
n. 3 (Tenn.1992); O'Daniel v. Messier, 905 S.W.2d at 188. Such evidence should produce in the
fact-finder’s mind a firm belief or conviction as to the truth of the allegations sought to be
established. O'Daniel v. Messier, 905 S.W.2d at 188; Wiltcher v. Bradley, 708 S.W.2d 407, 411
(Tenn. Ct. App.1985). In contrast to the preponderance of the evidence standard, clear and
convincing evidence should demonstrate that the truth of the facts asserted is “highly probable” as
opposed to merely “more probable” than not. Lettner v. Plummer, 559 S.W.2d 785, 787
(Tenn.1977); Goldsmith v. Roberts, 622 S.W.2d 438, 441 (Tenn. Ct. App.1981); Brandon v.
Wright, 838 S.W.2d at 536.

         As a threshold matter, we will first address Appellant’s second issue, concerning the trial
court’s admission of evidence surrounding Carey’s arrest for the fourth DUI on October 21, 2003.
Carey argues that this evidence should have been excluded since it arose after the Petition was filed
on September 29, 2003. It is well settled that the trial court is afforded wide discretion in the
admission or rejection of evidence, and the trial court’s action will be reversed on appeal only when
there is a showing of an abuse of discretion. Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439
(Tenn.1992). The paramount concerns in a child custody case are the welfare and best interest of
the child. See Whitaker v. Whitaker, 957 S.W.2d 837, 837 (Tenn. Ct. App. 1997). It is, therefore,
incumbent upon the court to admit all evidence that is relevant to that inquiry. Because of the grave
and special nature of termination proceedings, no relevant evidence should be excluded. Here, the
testimony of Officer Bolan is relevant as it goes directly to the question of Carey’s continued
drinking, which is at the heart of this termination proceeding. It is true that Carey is constitutionally
cloaked with a presumption of innocence on this fourth DUI charge until such time as the matter is
adjudicated in the criminal court; however, when faced with Carey’s objection at the hearing, the
trial court gave the following explanation for allowing the evidence:

                ...I’m going to allow [Officer Bolan] to testify concerning any
                personal knowledge he has of your client [Carey]. Again, we’re not
                looking for guilt or innocence in the case, but he has a right to tell the
                Court any information that he has concerning things that he may have
                seen your client do involving [the] termination of her parental rights
                to these children.

        The trial court was correct in its assessment and, consequently, did not abuse its discretion
in allowing testimony concerning the fourth DUI.

Termination of Parental Rights

        T.C.A. § 36-1-113(c)(Supp. 2003) governs termination of parental rights and requires that
such termination be based upon:




                                                   -7-
               (1) A finding by the court by clear and convincing evidence that the
               grounds for termination [of] parental or guardianship rights have been
               established; and
               (2) That termination of the parent's or guardian's rights is in the best
               interest of the child.

The trial court terminated Carey’s parental rights on the ground of persistence of conditions, which
is codified at T.C.A. § 36-1-113(g)(3)(A)(Supp.2003):

               (3)(A) The child has been removed from the home of the parent or
               guardian by order of a court for a period of six (6) months and:
               (i) The conditions which led to the child's removal or other conditions
               which in all reasonable probability would cause the child to be
               subjected to further abuse or neglect and which, therefore, prevent the
               child's safe return to the care of the parent(s) or guardian(s), still
               persist;
               (ii) There is little likelihood that these conditions will be remedied at
               an early date so that the child can be safely returned to the parent(s)
               or guardian(s) in the near future; and
               (iii) The continuation of the parent or guardian and child relationship
               greatly diminishes the child's chances of early integration into a safe,
               stable and permanent home.

        As noted above, the trial court based its decision to terminate Carey’s parental rights upon
a finding that she continued to drink excessively and to make unwise choices when she was under
the influence. The record indicates that Carey has completed two, twelve-week alcohol and drug
treatment programs. At the time of the hearing, Carey had found a job and had maintained her
employment for over seven months. DCS’ witness, Corene Gossage, Carey’s neighbor, testified that
she had been in Carey’s home and that, to her knowledge, there was no alcohol present. In addition,
Ms. Gossage had attended neighborhood parties where there was drinking and had not seen Carey
there. Furthermore, Belinda Dickinson, an employee of Carey Counseling, testified that Carey,
pursuant to the Permanency Plans, had submitted to an alcohol and drug assessment. On October
17, 2003, Ms. Dickinson sent a letter to DCS, which reads, in relevant part, as follows:[ex 11]

               Dear Ms. Prather:

               The following report concerns an Alcohol and Drug Evaluation
               completed on Karen Carey by the undersigned on October 17, 2003.
               This evaluation consisted of the administration of the Substance
               Abuse Screening Inventory, Version 3 (SASSI-3). The time period
               covered by this inventory was for the past six months.




                                                 -8-
                 The SASSI-3 is a self-report, standardized screening instrument
                 designed to identify respondents who have a high probability of
                 having a Substance Dependence Disorder. The SASSI-3 identifies
                 respondents as having a Substance Dependence Disorder, even if
                 those respondents do not openly acknowledge a problem with
                 substance misuse, or deliberately attempt to conceal such a problem.
                 Research has demonstrated the SASSI-3 correctly identifies 93% of
                 respondents who do not have a Substance Dependence Disorder. Ms.
                 Carey’s profile on the SASSI-3 indicates a “Low Probability of
                 having a Substance Dependence Disorder.” However, Ms. Carey’s
                 defensiveness score is relatively high, it is not significantly high
                 enough to indicate denial or an attempt to conceal a Substance
                 Dependence Disorder.

                 According to Ms. Carey, she denies use of alcohol in the past six
                 months. Due to the results of the SASSI-3, it is my recommendation
                 that Ms. Carey not be required to participate in Alcohol/Drug
                 treatment....

        We concede that Ms. Dickson’s opinion letter is not completely dispositive in that the
SASSI-3 assessment does not account for the fact that a person may abuse alcohol from time to time
without being dependent upon it. However, it does create some doubt as to the correctness of the
trial court’s conclusion about Carey’s continued relationship with alcohol.

        The most troubling evidence in this record is clearly Carey’s third conviction for DUI and
her fourth arrest for the same offense. Concerning the third DUI, Carey testified that she was not
under the influence of alcohol but, rather, had taken prescription medication for a leg injury.
Although the trial court did not give credence to Carey’s testimony, if the issue here is her abuse of
alcohol and she was not abusing alcohol but was under the influence of a prescribed medication,
then, applying the clear and convincing standard, that creates some question in this Court’s mind as
to whether the third DUI evinces a continued abuse of alcohol.3 There was also testimony that the
children were in the truck with Carey when she was cited for this third DUI; however, there is no
indication in the record that Carey was charged with child endangerment in relation to this event.

        Concerning the arrest for the fourth DUI, Officer Bolan testified that the vehicle Carey was
occupying was experiencing engine trouble and was not actually moving at the time he and his
partner stopped to offer an assist. He also testified that Carey failed three field sobriety tests, which
were videotaped. Officer Bolan testified that it was his partner, Officer Flowers, who conduct the
sobriety tests. Officer Flowers did not testify, nor was the videotape admitted into evidence. Carey



        3
           T.C.A. §55-10-401, under which Carey was charged, indicates that an intoxicant may include either alcohol
or drug or both.

                                                        -9-
did not submit to a blood test and, at the time of the hearing, she had not been convicted of this
offense.

        From all of the evidence in this record, it is clear to us that Carey has been guilty at times of
poor parenting and bad judgment. We do not condone her conduct; however, we must follow the
dictates of the legislature in making our ruling in this case. Therefore, we respectfully disagree that
there is clear and convincing evidence that grounds exist for termination in this case under T.C.A.
§ 36-1-113(g)(3)(A).

        Furthermore, at the time of the hearing, D.C. was twelve years old and S.C. was eleven years
old. As the trial court pointed out, they appeared to be “outgoing and very intelligent.” In terms of
what is in the best interest of these children, it is not clear from the children’s own testimony, or
from the record as a whole, that termination of Carey’s parental rights is the best choice here.
Although we concede that the bond between this mother and her children is not the strongest, D.C.
and S.C’s respective testimony indicates that each is not completely at ease with the prospect of not
seeing their mother:

                Q. Of course, you [D.C.] might not get to see your mom again until
                18 and you get out of high school. Do you understand that?

                A. Yes.

                Q. Taking that all into consideration, would you like to keep visiting
                with your mom?

                A. I guess.

S.C. testified likewise as follows:

                Q. ...[S.C.], do you understand what I was telling your sister about
                this might be the last time you get to see your mom?

                A. Yes, sir.

                Q. The Judge is sitting here and he’s going to listen to what ya’ll say.
                What are you telling the Judge to do? That you don’t want to see
                your mom any more or you’d still like to see her just even if it had to
                be at McDonald’s or the park or something like that? What do you
                want to do?

                A. I guess so at the park or something.




                                                  -10-
               Q. So you’d like to keep the visits going? Maybe not move in with
               her but do the visits?

               A. Maybe visit or something.

        In addition to the children’s testimony, the record supports the trial court’s conclusion that
Carey has made substantial steps in complying with the Permanency Plans. Carey has maintained
a job for at least seven months. She pays a substantial portion of her income in child support. She
exercises her visitation rights with the children and often gives them money and small gifts at these
visits. She has been able to procure more adequate housing and has attended counseling. From the
testimony of the DCS case worker and from Carey’s testimony and her actions, it is apparent that
she cares about these children. In addition, the children’s foster parent testified that she and her
husband have no present intention to adopt D.C. and S.C. This testimony, coupled with the fact that
D.C. and S.C. are now teenagers, does not bode well for their chances of being adopted in the near
future.

        For the foregoing reasons, we find that the evidence before us does not assuage this Court
of its doubts about the correctness of the trial court’s conclusion that Carey continues to abuse
alcohol or that such abuse makes her an unfit mother to these children, especially in light of the
progress Carey has made and the fact that there are no adoptive parents waiting in the wings.
Applying the clear and convincing standard, we reverse the Order of the trial court, terminating the
parental rights of Carey. We remand the case for such further proceedings as may be necessary,
including determination of visitation and custody. Costs of this appeal are assessed against the
Appellee, State of Tennessee Department of Children’s Services.



                                               __________________________________________
                                               W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.




                                                -11-
