                 IN THE COURT OF APPEALS OF TENNESSEE
                              AT JACKSON
                                   JULY 23, 2009 Session

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN’S SERVICES v.
                 AMBER NICOLE BENNETT

                                 IN THE MATTER OF:
                                   B.P.B. d/o/b 4/12/04
                                   K.L.B. d/o/b 4/12/04

                  Direct Appeal from the Juvenile Court for Shelby County
                            No. S-5281    Curtis Person, Judge



                    No. W2008-02391-COA-R3-PT - Filed October 8, 2009


This is an appeal from an order terminating a mother’s parental rights on the ground of substantial
noncompliance with a permanency plan, among others. The trial court found that termination was
in the children’s best interest. The mother appeals, and we affirm.


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

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

Shantell S. Suttle, Cordova, TN, for Appellant

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; Douglas
Earl Dimond, Senior Counsel, Nashville, TN, for Appellee
                                                       OPINION

                                     I. FACTS & PROCEDURAL HISTORY

        Amber Bennett ("Mother") gave birth to twin daughters, B.P.B. and K.L.B., on April 12,
2004, at the age of thirty-two. Mother was unmarried but resided with the children's father. On or
about August 20, 2006, when the children were two years old, the Tennessee Department of
Children's Services ("DCS") received a referral alleging that the children were exposed to drugs and
environmental neglect. While at Mother's home responding to a call, police officers had reportedly
found the children alone with a babysitter who did not know Mother's whereabouts or anything about
the family. The babysitter did not even know the children's names. It was also reported that drug
paraphernalia, including uncapped needles, were discovered in Mother's home, and bloody towels
and cat feces littered the floor. The children were taken from the home by the police officers and
placed in the temporary custody of DCS. The children were subsequently placed in a foster home.

        On September 11, 2006, DCS developed a permanency plan for the children. Mother
participated via telephone.1 The stated goal of the permanency plan was "reunify with parent(s)" or
"exit custody to live with relative(s)." The plan set a target date for accomplishing this goal within
one year. Mother was allowed supervised visitation with the children, and the plan required her to
make herself available for such visitation. In addition, the plan provided that Mother needed to
complete a drug treatment program, have a mental health assessment performed, obtain a stable place
of residence and stable employment, and develop a support system.2 The juvenile court approved
the permanency plan on October 31, 2006.

         On or about December 7, 2006, Mother had her first visit with the children since they entered
DCS custody on August 20.3 During the visit, the DCS case manager, Kandis Saulsberry, explained
the criteria and procedures for terminating parental rights to Mother, and Mother signed a document
acknowledging that she had received the explanation and a copy of the criteria.

       On January 12, 2007, the juvenile court adjudicated both children dependent and neglected.
Mother did not appear at the hearing, but her appointed attorney was present. The court's order states
that Mother had outstanding felony charges.

      According to DCS records, Mother was a fugitive from December 2006 until June 2007.
Mother had an extensive criminal record, including charges of felony theft, forgery, possession of


         1
          It is not clear why Mother participated via telephone. Ms. Saulsberry testified that M other was “incarcerated
over the weekends” and “in and out of jail” around the time that the children entered DCS custody.
         2
             Mother was evicted from her residence after the children were removed. She was also unemployed.
         3
            Although Ms. Saulsberry testified at trial that Mother's first visit occurred on December 11, 2006, she also
stated that Mother signed the criteria for terminating parental rights during that visit, and the date beside the signatures
on the document reads December 7, 2006.

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marijuana, possession of cocaine with intent to sell, and aggravated burglary. At some point, she
was ordered by a court to enter a rehabilitation program and was placed on probation for ten years.
Mother entered a one-year drug treatment program in July 2007. On August 12, 2007, the children's
foster mother took them to the rehabilitation center to visit Mother. This was Mother's second visit
with the children since they entered DCS custody in August of 2006. Mother left the rehabilitation
program shortly thereafter.

         On September 20, 2007, a revised permanency plan was developed, as one year had elapsed
since the first plan was entered. Mother did not participate in the development of this permanency
plan, and the plan stated that Mother was "on the run from the law and if she is captured she will
serve prison time." The permanency goal for the children was changed to "adoption" or "exit
custody to live with relative(s)," and the target date for achievement of this goal was set at six
months. Despite the goal change, Mother was still required to maintain contact with DCS, schedule
visitation with the children, obtain stable housing and employment, develop a support system,
complete a drug treatment program, and submit to random drug screenings.

        Mother was incarcerated in October of 2007. The court approved the revised permanency
plan on October 30, 2007, noting that the previous plan's goal of "return to parent" was no longer
appropriate due to Mother's incarceration. The court also noted that Mother had only visited with
the children twice during the fourteen months that they had been in DCS custody.

        On December 21, 2007, DCS filed a petition to terminate Mother's parental rights on the
grounds of abandonment, failure to substantially comply with the permanency plans, and persistence
of conditions. At trial, on August 15, 2008, only three witnesses testified – the children's foster
mother, Ms. Saulsberry from DCS, and the children's father.4 Mother did not present any proof. The
court entered an order on September 18, 2008, terminating Mother's parental rights on the grounds
of abandonment and substantial noncompliance with the permanency plans. The court found
insufficient evidence to support the ground of persistent conditions. Mother timely filed a notice of
appeal.

                                           II. ISSUES PRESENTED

       Mother presents the following issues on appeal:

1.     Whether there is clear and convincing evidence to support the trial court’s decision to
       terminate Mother’s parental rights based on substantial noncompliance with the permanency
       plan.
2.     Whether there is clear and convincing evidence that Mother abandoned her children by
       willfully failing to visit.
3.     Whether there is clear and convincing evidence that termination of Mother’s parental rights
       was in the best interest of the children.


       4
           The children's father's parental rights were also terminated in these proceedings, but he has not appealed.

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        DCS presents the following additional issue:

4.      Whether the trial court erred in not finding that Mother had failed to remedy the persistent
        conditions in her life that prevented her children’s return to her at an early date.

For the following reasons, we affirm the decision of the trial court.

                    III.   STANDARDS FOR REVIEWING TERMINATION CASES

        "A biological parent's right to the care and custody of his or her child is among the oldest of
the judicially recognized liberty interests protected by the Due Process Clauses of the federal and
state constitutions." In re J.C.D., 254 S.W.3d 432, 437 (Tenn. Ct. App. 2007); In re Audrey S., 182
S.W.3d 838, 860 (Tenn. Ct. App. 2005). Although the parent's right is fundamental and superior to
the claims of other persons and the government, it is not absolute. Id. A parent's right "continues
without interruption only as long as a parent has not relinquished it, abandoned it, or engaged in
conduct requiring its limitation or termination." Id.; see also In re M.J.B., 140 S.W.3d 643, 653
(Tenn. Ct. App. 2004).

         In Tennessee, proceedings to terminate a parent's parental rights are governed by statute.
"Parties who have standing to seek the termination of a biological parent's parental rights must prove
two things." In re Audrey S., 182 S.W.3d at 860; see also In re M.J.B., 140 S.W.3d at 653. First,
they must prove the existence of at least one of the statutory grounds for termination, which are
listed in Tennessee Code Annotated section 36-1-113(g). Id. Second, they must prove that
terminating parental rights is in the child's best interest, considering, among other things, the factors
listed in Tennessee Code Annotated section 36-1-113(i). Id. Because no civil action carries graver
consequences than a petition to sever family ties forever, both of the elements for termination must
be proven by clear and convincing evidence. Id. at 860-61. In sum, "[t]o terminate parental rights,
a trial court must determine by clear and convincing evidence not only the existence of at least one
of the statutory grounds for termination but also that termination is in the child's best interest." In
re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006) (citing In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002)). Clear and convincing evidence has been defined as evidence that "eliminates any serious
or substantial doubt concerning the correctness of the conclusion to be drawn from the evidence."
In re L.J.C., 124 S.W.3d 609, 619 (Tenn. Ct. App. 2003) (quoting In the Matter of: C.D.B., S.S.B.,
& S.E.B., 37 S.W.3d 925, 927 (Tenn. Ct. App. 2000)). It produces a firm belief or conviction in the
fact-finder's mind regarding the truth of the facts sought to be established. In re Audrey S., 182
S.W.3d at 861.

        Because of the heightened burden of proof in parental termination cases, on appeal, we must
adapt our customary standard of review as set forth in Tennessee Rule of Appellate Procedure 13(d).
In re Audrey S., 182 S.W.3d at 861. First, we review each of the trial court's specific factual
findings de novo in accordance with Rule 13(d), presuming the finding to be correct unless the
evidence preponderates against it. Id. Second, we must determine whether the facts (either as found
by the trial court or as supported by the preponderance of the evidence) clearly and convincingly
establish the elements required to terminate parental rights. Id. Whether a statutory ground has been


                                                  -4-
proven by the requisite standard of evidence is a question of law to be reviewed de novo with no
presumption of correctness. In re R.L.F., 278 S.W.3d 305, 312 (Tenn. Ct. App. 2008) (citing In re
B.T., No. M2007-01607-COA-R3-PT, 2008 WL 276012, at *2 (Tenn. Ct. App. Jan. 31, 2008)).

                                         IV. DISCUSSION

                                  A. Substantial Noncompliance

        Several grounds for termination are listed in Tennessee Code Annotated section 36-1-113(g),
but the existence of any one of the grounds enumerated in the statute will support a decision to
terminate parental rights, In re S.R.C., 156 S.W.3d 26, 28 (Tenn. Ct. App. 2004); In re J.J.C., 148
S.W.3d 919, 925 (Tenn. Ct. App. 2004), provided that termination is in the best interest of the child.
In re Audrey S., 182 S.W.3d at 862. One ground at issue in this case, listed in subsection (g)(2),
authorizes the termination of parental rights when "[t]here has been substantial noncompliance by
the parent or guardian with the statement of responsibilities in a permanency plan[.]" The term
"substantial noncompliance" is not defined by the termination statute, but the use of the word
"substantial" requires that the parent's noncompliance be "[o]f real worth and importance." In re
Valentine, 79 S.W.3d at 547 (quoting Black's Law Dictionary 1428 (6th ed. 1990)). "Trivial, minor,
or technical deviations from a permanency plan's requirements will not be deemed to amount to
substantial noncompliance." In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct. App. 2007) (quoting In
re M.J.B., 140 S.W.3d at 643). In addition, the trial court must find that the requirements of the
permanency plan that the parent allegedly did not satisfy were reasonable and related to remedying
the conditions which necessitated foster care placement. In re R.L.F., 278 S.W.3d at 312 (quoting
In re Valentine, 79 S.W.3d at 547). This may include conditions related both to the child's removal
and to family reunification. In re Valentine, 79 S.W.3d at 547.

         Mother argues on appeal that "there is no clear and convincing evidence that [she] had not
substantially complied with the permanency plan." Again, the permanency plans required Mother
to visit the children, obtain stable housing and employment, develop a support system, complete a
drug treatment program, submit to random drug screens, and have a mental health assessment
performed. We note that Mother does not contend that her responsibilities under the permanency
plan were unreasonable. The trial court found that Mother's obligations and responsibilities outlined
in the permanency plans were "reasonable and related to the reasons necessitating foster care."

        As evidence of her compliance with the permanency plans, Mother points to the fact that she
participated in two months of inpatient drug treatment. However, considering the fact that the
program required one year of treatment, she clearly failed to comply with the permanency plan's
requirement that she "complete a drug treatment program." (emphasis added). Mother's attorney
stated during closing arguments that Mother had completed a drug treatment program in jail.
However, no proof was presented to substantiate her statement. Statements made by attorneys are
not evidence. Houston v. Houston, No. W2002-02022-COA-R3-CV, 2003 WL 22326970, at *10
(Tenn. Ct. App. May 29, 2003). Ms. Saulsberry testified at trial that DCS had no record of Mother
completing any drug or alcohol treatment program.


                                                 -5-
        Mother also claims that DCS failed to use reasonable efforts to assist her with visitation
because no one brought her children to the jail to visit her after she was incarcerated in October of
2007. Mother notes that she sent a letter to Ms. Saulsberry after she was incarcerated, and that Ms.
Saulsberry failed to respond. At trial, Ms. Saulsberry acknowledged that she received a letter from
Mother in which Mother stated that she was incarcerated and did not want her children to be
adopted. However, Ms. Saulsberry also testified that Mother did not call or write to set up visitation,
and Mother presented no proof to the contrary. Mother then notes that her jail counselor contacted
Ms. Saulsberry about inmate visitation. Ms. Saulsberry testified that a counselor did contact her
approximately three months prior to trial regarding visitation, and that she returned the counselor's
phone call, but the counselor never responded. Ms. Saulsberry testified that the DCS team did not
feel that visitation at the jail was appropriate, but that visitation could possibly have been arranged
if the counselor would have responded to her message.

       DCS has an affirmative duty to make "'reasonable efforts' to preserve, repair, or restore
parent-child relationships whenever reasonably possible." In re R.L.F., 278 S.W.3d at 313 (quoting
In re C.M.M., No. M2003-01122-COA-R3-PT, 2004 WL 438326, at *6 (Tenn. Ct. App. Mar. 9,
2004)). However, DCS "does not have the sole obligation to remedy the conditions that required the
removal of the children from their parents' custody." In re Giorgianna H., 205 S.W.3d 508, 518
(Tenn. Ct. App. 2006). When reunification of the family is a goal, the parents share responsibility
for addressing the conditions that led to removal. Id. Reunification is a "two-way street," and the
law does not require DCS to carry the entire burden of this goal. State Dep't of Children's Servs.
v. S.M.D., 200 S.W.3d 184, 198 (Tenn. Ct. App. 2006). If parents desire the return of their children,
they must also make "reasonable and appropriate efforts to rehabilitate themselves and to remedy
the conditions that required the Department to remove their children from their custody." In re
Giorgianna H., 205 S.W.3d at 519 (citing State Dep't of Children's Servs. v. B.B.M., No. E2004-
00491-COA-R3-PT, 2004 WL 2607769, at *7 (Tenn. Ct. App. Nov. 17, 2004); In re C.M.M., 2004
WL 438326, at *7; In re R.C.V., No. M2001-02102-COA-R3-JV, 2002 WL 31730899, at *12 (Tenn.
Ct. App. Nov. 18, 2002)).

        “Reasonable efforts” by DCS means “the exercise of reasonable care and diligence ... to
provide services related to meeting the needs of the child and the family.” Tenn. Code Ann. §
37-1-166(g)(1) (2005). In making such reasonable efforts, “the child's health and safety shall be the
paramount concern.” Id. What is “reasonable” depends on the circumstances of each case, but the
factors that courts use to determine the reasonableness of DCS's efforts include:

       (1) the reasons for separating the parent from his or her children, (2) the parent's
       physical and mental abilities, (3) the resources available to the parent, (4) the parent's
       efforts to remedy the conditions that required the removal of the children, (5) the
       resources available to the Department, (6) the duration and extent of the parent's
       remedial efforts, and (7) the closeness of the fit between the conditions that led to the
       initial removal of the children, the requirements of the permanency plan, and the
       Department's efforts.



                                                  -6-
In re Giorgianna H., 205 S.W.3d at 519 (citing In re C.M.C., No. E2005-00328-COA-R3-PT, 2005
WL 1827855, at *9 (Tenn. Ct. App. Aug. 3, 2005); State Dep't of Children's Servs. v. B.B.M., 2004
WL 2607769, at *6; In re C.M.M., 2004 WL 438326, at *7). We must determine whether DCS
presented "sufficient evidence regarding its reunification efforts to enable the trier-of-fact to
conclude, without any serious or substantial doubt, that the Department's remedial efforts were
reasonable under all the circumstances." In the Matter of J.L.E., No. M2004-02133-COA-R3-PT,
2005 WL 1541862, at *12 (Tenn. Ct. App. June 30, 2005) (citing In re C.M.M., 2004 WL 438326,
at *8).

        Considering all the circumstances of this case, we conclude that DCS's efforts were
reasonable and Mother's were not. Ms. Saulsberry testified that DCS offered Mother referrals for
drug and alcohol treatment, provided her with information regarding the mental health assessment,
provided her with housing information, and attempted to arrange visitation.5 Mother failed to show
up at one scheduled visit, and she cancelled another visit. DCS supervised one visit at the drug
rehabilitation center. Ms. Saulsberry explained that DCS was hindered in its attempts to further
assist Mother due to the fact that her whereabouts were unknown for months at a time. Ms.
Saulsberry testified that she attempted to contact Mother through one of Mother's friends on
numerous occasions, but she was unsuccessful. When DCS finally learned Mother’s whereabouts,
she was incarcerated. We have previously recognized that DCS may be limited in the services it can
provide to a parent when the parent is repeatedly incarcerated. See, e.g., In re Jeremiah T., No.
E2008-02099-COA-R3-PT, 2009 WL 1162860, at *9 (Tenn. Ct. App. Apr. 30, 2009). Such is the
case here. Even if Mother expressed a desire to visit with her children after she was incarcerated in
October 2007, she failed to substantially comply with the permanency plan's visitation requirement
during the year prior to her incarceration. Between August 2006 and October 2007, Mother had only
two two-hour visits with the children. In addition, Mother failed to comply with every other
requirement of the permanency plans. She did not obtain stable housing or employment, develop
a support system, complete a drug treatment program or mental health assessment, or even maintain
contact with DCS.

       From our careful review of the record, we conclude that DCS used reasonable efforts to assist
Mother, under the circumstances, yet she failed to substantially comply with the permanency plans.
Thus, grounds existed for the termination of her parental rights. We need not address the other
grounds alleged by DCS.



                                          B. Best Interest
        "The ultimate goal of every proceeding involving the care and custody of a child is to
ascertain and promote the child's best interests." In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App.



        5
           DCS provided other services to the children, such as assessments for developm ental delays, and it also
obtained ICPC evaluations for possible placement of the children with Mother's relatives in two other states.

                                                       -7-
2005). Tennessee Code Annotated section 36-1-113(i) provides a list of some factors to consider
in determining whether termination of parental rights is in the best interest of the child:

       (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;
       (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.

We must determine the child's best interest from the child's, rather than the parent's, perspective. In
re Marr, 194 S.W.3d at 499.

         Having reviewed the aforementioned factors and the entire record in this case, we readily
conclude that termination of Mother’s parental rights is in the children’s best interest. Mother clearly
has not adjusted her circumstances or conduct as to make it safe and in the children's best interest
to reside with her. Mother is currently incarcerated. Although Mother's attorney reported that she
would be eligible for parole soon, even if Mother is paroled, she has not maintained stable housing
or employment in several years. In addition, there was evidence that the children suffered from
neglect while in Mother's care. Ms. Saulsberry and the children's foster mother testified that the
children were covered in flea bites and head lice when they entered DCS custody and that their
condition required treatment for over a month. The children's father admitted that he and Mother
were using cocaine and syringes in the home, and that he was also selling drugs. The foster mother
testified that when the children came to live with her, they were unable to talk, had problems eating,
and did not know what shoes were. She also testified that the children were "scared to death" when


                                                  -8-
left in a room alone. She testified that the children were doing well at the time of trial, and that they
had learned the alphabet and some numbers. However, she said the children still had some issues
about being alone. Ms. Saulsberry said the children had "blossomed" in the care of their foster
mother.

        Mother had failed to maintain visitation or contact with the children since they entered DCS
custody in 2006. Mother did not financially support the children or send letters, with the exception
of a card on their fourth birthday, after the termination petition was filed. She had visited with the
children for only four hours over the two-year period, and Ms. Saulsberry and the children's foster
mother both testified that the children did not recognize Mother during their two visits with her. Ms.
Saulsberry explained that when Mother approached the children and tried to pick them up, the
children began crying and moved away from her. Ms. Saulsberry and the foster mother both testified
that the children had no bond with Mother and referred to their foster mother as "Mommy." The
foster mother wished to adopt the children, and Ms. Saulsberry stated her opinion that removing the
children from the foster home would have a detrimental effect on them.

       In sum, we find clear and convincing evidence to support the trial court's conclusion that
termination of Mother's parental rights is in the children's best interest.

                                          V. CONCLUSION

        For the aforementioned reasons, we affirm the decision of the trial court. Costs of this appeal
are assessed against Amber Bennett, for which execution may issue if necessary.



                                                        ___________________________________
                                                        ALAN E. HIGHERS, P.J., W.S.




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