                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON


IN THE MATTER OF:                        )
                                         )
Tamika Nicole Baker,                     ) Shelby Juvenile No. E6404
Brandon Alan Austill,                    )
Michael Christopher Austill,             ) Appeal No. W1998-00606-COA-R3-CV
Kimberly Michelle Austill,               )
Charles Damion Ray Austill,              )
Phillip Hunter Austill,                  )
                                         )
                                                    FILED
      Minor Children                     )
                                         )         December 28, 1999
                                         )
                                         )         Cecil Crowson, Jr.
                                                  Appellate Court Clerk

           APPEAL FROM THE JUVENILE COURT OF SHELBY COUNTY
                        AT MEMPHIS, TENNESSEE
            THE HONORABLE GEORGE BLANCETT, SPECIAL JUDGE




JAMES H. BRADLEY
WEBB A. BREWER
Memphis Area Legal Services, Inc.
Memphis, Tennessee
Attorneys for Appellants, Charles & Linda Austill



SABRINA D. BALL
Memphis, Tennessee
Attorney for Appellee




AFFIRMED




                                                         ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

HOLLY KIRBY LILLARD, J.
        Charles Ray Austill and Linda Christine Baker Austill appeal from the judgment of

the Juvenile Court of Memphis and Shelby County, which terminated the Austill’s parental

rights in regards to six of their minor children.1 We affirm the judgment of the trial court.



                                   I. Facts and Procedural History

        Charles and Linda Austill (“Appellants”) are husband and wife and, except for

Tamika Baker, are the parents of the children subject to the trial court’s termination of

parental rights.2 In February of 1994, the Department of Human Services (“DHS”) filed a

petition in the Juvenile Court of Memphis and Shelby County, alleging that the Austill’s six

minor children were dependent and neglected.3 The petition resulted from twenty-nine (29)

separate referrals to DHS. According to the DHS case manager, there were terrible living

conditions in the home, and the parents were not addressing the children’s physical and

emotional problems. Specifically, the petition alleged that the home contained trash and

“an excess of accumulated piles of dirty clothes.” Some of the children had received

numerous small injuries over a long period of time. Tamika, the oldest child, was said to

have an excess of responsibility in caring for the younger children. Also, Brandon and

Michael were said to be sleeping in the basement of the house where a hole in the wall had

allowed standing water to form on the floor. The petition further stated that reasonable

efforts to prevent removal had been made and that the parents refused referrals to

parenting classes and individual counseling.



        On March 9, 1994, the Juvenile Court awarded temporary custody of the children

to the Tennessee Department of Human Services, and the parties were referred to the

Center for Children in Crisis (“CCC”). A Plan of Care was developed which was intended

to address the array of physical and mental problems of the children, as well as the



        1
         Thr ee ch ildren were born to the Aus tills after the children which are the subject of this appeal were
removed from the hous ehold. It is the u ndersta nding of the court that these three children remain in the
custody and care of the Austills.

        2
           Tamika Baker is the natural child of Linda Baker and an unknown father. A default judgment was
entered against the father of Tamika Baker and the termination of his parental rights is not an issue in the
pres ent a ppe al.

        3
         The children named in the p etition were Tam ika, th en ag e 9, B rand on, 8 , Mich ael, 6, Kimberly, 4,
Charles, 3, and Phillip, 1.

                                                       2
deficiencies in Mr. and Mrs. Austill’s parenting skills. The goal of the plan was reunification

of the family.



        The Center for Children in Crisis interviewed and tested the parties. The CCC

evaluation revealed that Mrs. Austill had been physically, emotionally, and sexually abused

during her childhood and had spent time in foster care.                   Dr. Sonny Gentry testified on

behalf of CCC and opined that Mrs. Austill’s childhood negatively impacted her parenting

ability. The Center concluded that Mr. and Mrs. Austill had very limited parenting skills and

very limited comprehension of the needs of the children. It was recommended that both

parents be referred for parenting classes, anger management, and intensive counseling

on an individual basis. It was also recommended that the children remain in placements

out of the Austill home until Mr. and Mrs. Austill had demonstrated some progress in the

recommended interventions.



        The Austills were referred to Bruce Reed, a counselor at Frayser Family Counseling,

in June of 1994. According to Mr. Reed, the initial referral contained numerous reports

of neglect and physical abuse, as well as allegations of sexual abuse of both Tamika and

Brandon by an uncle.



        Both parents completed the parenting classes.                   However, it is evident from the

record that neither Mr. nor Mrs. Austill was successful in the individual counseling sessions.

Mrs. Austill’s counseling sessions occurred sporadically between September of 1994 and

March of 1996.4 However, after March of 1996, she attended only one session. Mr. Reed

sent a letter to Mrs. Austill in June of 1996 inquiring as to whether she desired to continue

counseling. That letter stated that if Mrs. Austill did not contact Mr. Reed, he would assume

that she no longer desired the services and her case would be closed. Mrs. Austill testified

that she tried unsuccessfully to reach Mr. Reed after receiving his letter. Mr. Reed,

however, testified that he received no reply from Mrs. Austill.                 As a result, he closed the

case for noncompliance in June of 1996.


        4
          Mrs. Austill was scheduled for thirty-four (34) individual therapy sessions, b ut sh e atte nde d only
twenty (20) of those session s.

                                                       3
        The attempts at counseling Mr. Austill reached substantially similar results. His case

was closed for noncompliance on April 7, 1995, after he declined individual counseling and

attended only one marital counseling session. His case was reopened in October of 1995,

but it was subsequently closed again in April of 1996 for noncompliance.5



        The Plan of Care also required the parents to attend meetings at the Center for

Children in Crisis and maintain contact with the Department of Children’s Services. Mrs.

Austill admitted that she missed several of the meetings at CCC. Mrs. Austill also admitted

that she went six to eight months without contacting the Department of Children’s Services.



        On September 17, 1996, the goal in regards to the Austill’s children was changed

to adoption. Also, visitation with the parents was suspended. Ultimately, on May 22, 1997,

the Court Appointed Special Advocate of Memphis and Shelby County, Inc. (“CASA”) filed

a “petition for Termination of Parental Rights” in the Juvenile Court, seeking to terminate

the parental rights of Charles and Linda Austill as to the six children previously removed

from the home.6 The petition asserted two grounds for termination: 1) that the Austills had

substantially failed to comply with the statement of responsibility contained in the

Permanency Plan for the children, pursuant to T.C.A. §§ 36-1-113(g)(2) and 37-2-403; and

2) that all the conditions listed in T.C.A. § 36-1-113(g)(3)(A) were present. The petition

further asserted that termination was in the best interests of the children. By order entered

on October 21, 1998, the Juvenile Court terminated the Austill’s parental rights in regard

to the six children.7       In terminating the Austill’s parental rights, the trial court made the

following pertinent findings:

        11.    It is the finding of the Court that it was the unanimous opinion
        of the professionals at trial that the children would still be at risk if
        placed in the home with the parents.

        12.    The Court finds that the Respondents, Linda Christine Baker Austill
        and Charles Ray Austill, withdrew efforts to rehabilitate and reconcile the
        family when they abandoned the counseling and other services offered to

        5
           App aren tly, Mr. A ustill’s work sch edu le prevented him from attending his sessions. Nevertheless,
his failure to attend the sessions constituted noncompliance.

        6
        The origin al pet ition w as ap pare ntly los t and a dup licate petition was filed in September of 1998
accom panied b y a motion reques ting that the d uplicate pe tition relate bac k to the o riginal date o f filing.

        7
            As previously noted, a default judgment was entered against the unknown father of Tamika Baker.

                                                        4
       them by the Department of Children’s Services.


This appeal followed.



       On appeal, the appellants assert two grounds in support of reversing the decision

of the juvenile court. First, they argue that the decision to terminate their parental rights

was not supported by “clear and convincing” evidence. Second, they argue that the trial

court impermissibly based its decision on evidence that should have been excluded as

hearsay and/or opinion.



                                   II. Law and Analysis

       The decision to terminate parental rights involves fundamental constitutional rights.

O’Daniel v. Messier, 905 S.W.2d 182, 186 (Tenn. Ct. App. 1995). Therefore, the court

must find that the grounds for termination of parental rights have been established by

“clear and convincing evidence.” See Tenn.Code Ann. § 36-1-113(c)(1) (1996); State

Dept. of Human Servs. v. Defriece, 937 S.W.2d 954, 960 (Tenn. Ct. App. 1996). Clear and

convincing evidence is evidence which “eliminates any serious or substantial doubt

concerning the correctness of the conclusion to be drawn from the evidence.” O’Daniel,

905 S.W.2d at 186.



       Parental rights can be terminated in only a limited number of statutorily defined

circumstances and then, only if a court determines that termination is in the child's best

interests.   See Tenn.Code Ann. § 36-1-113(c)(2) (1996).           Parental rights may be

terminated only when continuing the parent-child relationship poses a substantial threat of

harm to the child. See Petrosky v. Keene, 898 S.W.2d 726, 728 (Tenn. 1995). As

pertinent in this case, T.C.A. § 36-1-113 allows the termination of parental rights in two

instances. Parental rights may be terminated if: (1) the child has been removed from the

home of the parent by court order for six months and (2) the conditions which led to the

removal or other similar conditions still persist, are unlikely to be remedied in the near

future, and the continuation of the parent-child relationship greatly diminishes the child's

chances of early integration into a stable and permanent home.          Tenn.Code Ann. §

                                             5
36-1-113(g)(3)(A).8 Also, parental rights may be terminated if “there has been substantial

noncompliance by the parent or guardian with the statement of responsibilities in a

permanency plan or a plan of care pursuant to the provisions of title 37, chapter 2, part 4.”9

Tenn.Code Ann. 36-1-113(g)(2).



         Although there is evidence of noncompliance and the petition for termination alleged

substantial noncompliance as a basis for termination, the trial court’s order of termination

seems to rest on T.C.A.§ 36-1-113(g)(3)(A). Since we affirm the decision on that basis,

we do not reach the question of substantial noncompliance as an independent basis for

terminating the Austill’s parental rights.10



                             Termination under T.C.A. § 36-1-113(g)(3)(A)

         The issue before us is whether the evidence presented to the trial court satisfied the

“clear and convincing” standard required for termination of parental rights. We entertain

this issue in light of the criteria enumerated in T.C.A. § 36-1-113(g)(3)(A). In that regard,

         8
             Section 36-1-113(g)(3)(A) states:

                   “(g) Initiation of termination of parental or guardianship rights may be based upon
                   any of the following grounds:

                          (3)(A) The child has been rem oved from the hom e 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 th e paren t(s) or gua rdian(s), s till 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
                   relatio nsh ip greatly diminishes the child's chances of early integration into a safe,
                             stable an d perm anent ho me.”


         9
             T.C.A. §37-2-403(a)(2)(C) provides:

                   “Substantial noncompliance by the parent with the statement of responsibilities
                   provides grounds for the term ination of parental rights, notwithstanding other
                   statutory provisions for termination of parental rights, and notwithstanding the
                   failure of the parent to sign or to agree to such statement if the court finds the
                   parent was informed of its contents, and that the requirements of the statement are
                   reasonable and are related to rem edying the conditions which necessitate foster

                   care plac eme nt.”

         10
           W e point ou t, as the trial co urt seem ed to rec ognize, tha t the Aus till’s failure to com ply with the plan
of care is evidence that some of the conditions which led to the removal of the children, namely the Aus till’s
parenting skills, have not been remedied.

                                                            6
the relevant questions on appeal are whether there was clear and convincing evidence

that: 1) the children had been removed from the home for more than six(6) months, 2) the

conditions which led to the children’s removal still persist, 3) there is little likelihood that the

conditions will be remedied, and 4) the continuation of the parent/child relationship

diminishes the chances of these children’s placement in a home.11



           The main thrust of appellants’ argument is that the conditions which led to the

removal of the children have been remedied. It must be conceded, as appellee does, that

the Austills have made some improvements in their living conditions. They have moved

to a new home that appears to be substantially better than the home from which the

children were removed. However, the mere fact that the appellants have moved to a new

home does not mandate a finding that the conditions have changed. See In the Matter of

M.W.A., Jr., C.D.A., P.C.A., K.M.A., and A.K.A., 980 S.W.2d 620, 623 (Tenn. Ct. App.

1998) (“Although the parents have improved their living conditions with a clean,

well-furnished home, they have not demonstrated that their parenting skills have improved

or will likely improve in the near future even with additional support”). Additionally, there

is evidence that the new three-bedroom home is not being fully utilized. Mrs. Austill and

one of her children sleep in the living room while one of the bedrooms is devoted solely to

storage. Therefore, the Austill’s move to a new home does not constitute a change of

conditions sufficient to preponderate against the trial court’s decision.



           In support of their claim that conditions have been improved, the appellants’ point

out that three children remain in the home.12 This argument rests on the assumption that

the Department of Children’s Services would not allow these children to remain in the

home if conditions were less than adequate. We find this line of reasoning unpersuasive

because the conditions of the two sets of children are not necessarily the same. The fact

that the six children were removed from the home does not mean that the three remaining


           11
            There is no dispute that the children have been removed from the home for more than six months.
In fact, the children h ave bee n in the cu stody of the State since 1994. Therefore, we need only consider the
remaining factors.

           12
                These are the children that were born after the removal of the children that are the subj ect o f this
app eal.

                                                            7
children should be removed. Similarly, the fact that three children remain in the home is

not evidence that the other children should be returned. Each situation is independent of

the other and should be judged as such.



       There is little, if any, evidence to show that the Austills are any more equipped to

deal with their children’s problems now than they were when the children were removed.

It would be impossible to accurately list the numerous allegations that were made

regarding the Austills and their children.        Likewise, the many physical and mental

deficiencies of the children are too numerous and varied to list. While we are not blind to

the fact that improvements have been made, the overwhelming majority of the evidence

shows that the improvements are minor in comparison to the deficiencies that remain. Mr.

and Mrs. Austill have their own problems for which they were unwilling to seek counseling.

While they did attend the parenting classes, they never completed the anger management

counseling or the individual counseling sessions. The evidence leaves little doubt that

most of the conditions which led to the removal of the children remain. Our review of the

record shows that there is clear and convincing evidence to sustain the termination of the

Austill’s parental rights.



       The trial court found that there was little likelihood that the conditions which led to

removal will be remedied. We find no error in this determination. These children were

removed from the home in 1994. We find no basis for believing that these conditions can

be remedied in the near future given the fact that the Austills had several years to make

the necessary changes and failed to do so. Similarly, we agree with the trial court’s finding

that the continuation of the parent/child relationship greatly diminishes the children’s

chances of early integration into a stable and permanent home. In fact, some of the

children’s foster parents have already indicated a willingness to adopt.



       Having determined that the statutory elements for termination of parental rights

found in T.C.A. § 36-1-113(g)(3)(A) were satisfied, the trial court found that termination was

in the best interests of the children. Based on our review of the record, we find no error



                                              8
in that conclusion.




                                    Hearsay Objections

       The appellants argue that the trial court impermissibly based the termination of

parental rights on inadmissible hearsay. This hearsay took the form of various letters and

reports generated by the guardian ad litem. In response, the appellee argues that the

majority of the information found in these reports was propounded to the court through

other witnesses and was, therefore, a duplication of that evidence. Alternatively, the

appellee argues that any error in admitting the reports was harmless.



       We are unable to say whether all of the information contained in the guardian ad

litem reports came in through other witnesses. We can, however, say that there was

sufficient evidence, unrelated to the guardian ad litem reports, to sustain the trial court’s

decision. As such, any error in the admission of these reports was harmless. See

Tennessee Rules of Appellate Procedure, Rule 36(b).



                                      III. Conclusion

       For the reasons stated herein, we affirm the decision of the trial court. Costs of

this appeal are taxed to the appellants, Charles and Linda Austill, for which execution

may issue if necessary.




                                                         HIGHERS, J.

CONCUR:



CRAWFORD, P.J., W.S.



LILLARD, J.




                                             9
