                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   January 2, 2001 Session

              STATE OF TENNESSEE, DEPARTMENT OF
        CHILDREN’S SERVICES v. PAMELA COX (GRAVES), ET AL.

                     Appeal from the Circuit Court for Lawrence County
                      No. CC-58498 Robert L. Holloway, Jr., Judge



                     No. M1999-01598-COA-R3-CV - Filed July 17, 2001


This case presents two issues. The first is whether proper notice was given to the mother of a
dependent and neglected child to meet due process requirements and allow adjudication of her right
to visitation and of the goal of the permanency plan for the child. The second issue is whether the
evidence preponderated against the trial court’s decision to change the goal of the permanency plan
to termination of parental rights and terminate the mother’s visitation. We affirm the circuit court
on both issues finding no due process violation and more than adequate evidence to support the trial
court’s decision.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit 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.

David Kozlowski, Columbia, Tennessee, for the appellant, Pamela Cox (Graves).

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

                                            OPINION

        The child at issue in this matter, Pamela Cox, was removed from the custody of her parents
on October 4, 1995 when she was approximately five months old. Following an adjudicatory hearing
on March 13, 1996, the Juvenile Court entered an order finding Pamela dependent and neglected as
to her mother and a victim of severe child abuse by her father. Pamela’s father, Robert Cox, has not
entered an appearance in this matter and has not joined in this appeal. The April 10 order awarded
temporary legal and physical custody of Pamela to the State of Tennessee, Department of Children’s
Services and granted the child’s mother, Pamela Cox (Graves) (hereinafter “Ms. Graves”), two hours
supervised visitation each week with Pamela1, every other visit to be held at the mother’s home.2

        Due to circumstances surrounding Ms. Graves’ home life after she began living with her
current boyfriend, the case worker for the Department of Children’s Services, hereinafter “DCS”,
stopped visitation at Ms. Graves’ home. On May 22, 1998, Ms. Graves filed a Petition to Modify
Orders alleging that DCS was not allowing visitation in her home as required by the April 10, 1996
order and further requesting expanded visitation rights. Prior to a hearing, the parties met and agreed
to a temporary disposition of the matter. The temporary agreement memorialized in the Juvenile
Court’s order of July 21, 1998 provided for expanded visitation to four hours per week with the visits
to be conducted at Ms. Graves’ home or a site away from the DCS office. Visits would continue to
be supervised. The court also ordered a staffing to be held at DCS on July 2, 1998 and scheduled
a permanency planning hearing for July 22, 1998 pursuant to Tennessee Code Annotated section 37-
2-409.

        This permanency planning hearing was held as scheduled on July 22, 1998. No transcript
exists of the juvenile court hearing; however, in a letter of July 28, 1998 to counsel, the court set out
its decision.

               On July 22nd, 1998 this case came to be tried on behalf of the state asking
        this Court to approve a plan of care on behalf of the minor child Pamela Cox. This
        minor came into State custody in October of 1995. The minors’ [sic] date of birth
        is May 14, 1995.

                The reason this child was placed in custody was because of abuse on behalf
        of its Father and neglect on behalf of its Mother failing to protect it.

                The Court makes the following findings: This Child was abused when it was
        a tiny infant and apparently the Mother of this Child turned a blind eye to the abuse
        this child was subjected to by its Father.

                This Child has been in state custody for 2 ½ years and the Department of
        Human Services has attempted and made reasonable efforts to return this Child to its
        natural Mother, who has now divorced the Childs’ [sic] Father. However, the
        Mother repeatedly evidenced an unwillingness to follow a plan visitation even though
        she was unemployed, she would cancel scheduled visits with this Child. These
        scheduled visits were extremely important because they coincided with a time when
        a trained parenting counselor would be present (Ms. Williams with Kings Daughter


        1
         The child in this matter and her mother had the same name, Pamela Cox. However, her mother took back her
maiden name of Graves after divorcing the child’s father.

        2
            At the time of the 1996 he aring, Ms. Graves wa s living with her mother, Barbara G raves.

                                                           -2-
       Program). The Mother has failed to contribute any support for this child even though
       she is a recipient of SSI benefits in the amount of $400.00 monthly.

               The Mother and her live-in boyfriend have less than a stable environment,
       domestic violence being present in the home, and her live-in boyfriend will not
       participate in any counseling dealing with issues of parenting or domestic violence.

              The Mother never attended any parenting counseling even though it was
       scheduled by Department of Human Services and would have been at no cost to her.

                The Father of this child has not visited, supported, or even shown any interest
       in this child since the minor was placed in protective custody.

               Therefore this Court concludes it would be a high risk of irretrievable harm
       to ever attempt to place this child in the home of the parent, a goal that cannot be
       accomplished. To delay the inevitable any longer is a detriment to the health, safety,
       and normal development of this young child. It is therefore Ordered that that the plan
       of care be modified as follows:

               (1) The child will remain in foster care in the Wood[w]ard household.

               (2) Visitation between this Child, and either parent is terminated. The
               State is Ordered to move to terminate the parental rights of both
               parents.

       On November 2, 1998, Ms. Graves appealed the juvenile court order and this matter was tried
de novo before the circuit court on May 11, 1999. Following this hearing, the circuit court found,

       that the Juvenile court was within its jurisdiction to terminate visitation, sua sponte,
       between the child and either parent. Thereby, the Honorable Lee England’s, Juvenile
       Court Judge, ruling on July 22, 1998 was upheld and determined to be in the best
       interest of the child and the public. Further, Pamela Cox Graves[’] motion to
       reinstate visitation with her daughter is denied upon a finding of substantial risk of
       harm to the child due to the mother’s unstable lifestyle and exposure to physical,
       sexual, and emotional abuse.

This appeal subsequently ensued. However, as of the date of this appeal, no petition for termination
of parental rights had been filed.

                                                  I.

       The first issue presented for review is whether Ms. Graves was afforded prior notice and
opportunity to be heard on the issues of termination of her visitation and changes in Pamela’s


                                                 -3-
permanency plan, which were decided by the juvenile court. We find that Ms. Graves had adequate
notice and the opportunity to be heard, not only once but twice, on these issues; as such, this case
does not present a due process violation.

       Defendant herself requested a review of the visitation issue. Although she only requested
expanded visitation or strict enforcement of the previously granted visitation, the court, after
reviewing the pleadings, determined that a permanency planning hearing should be scheduled
pursuant to Tennessee Code Annotated section 37-2-409(1996). With regard to these periodic
hearings the Code provided:

               (a) In addition to the other requirements of this part, the judge or referee shall
       hold a hearing within eighteen (18) months of the date of foster care placement for
       each child in foster care. As long as a child remains in foster care, subsequent
       dispositional hearings conducted pursuant to subsection (b) shall be held no less
       frequently than every twelve (12) months for each child, or as otherwise required by
       federal regulations.

               (b)(1) The purpose of these dispositional hearings shall be to determine the
       future status of the child, including, but not limited to, whether the child should be
       returned to the parent, should be continued in foster care for a specific period, should
       be placed for adoption, or should, because of the child’s special needs or
       circumstances, be continued in foster care on a permanent or long term basis, and
       shall determine the extent of compliance of all parties with the terms of the
       permanency plan, and the extent of progress in achieving the goal of the plan.

Tenn. Code Ann. § 37-2-409(a), (b)(1)(1996). This law provided adequate notice that all issues
regarding the future status of the child were in front of the court, including whether the goal of the
permanency plan should be changed and what steps should be taken in furtherance of that goal.

        Once a child is determined to be dependent and neglected, removed from its family, and
placed in foster care, Tennessee law sets out primary goals of determining the best interest of the
child and placing the child in a permanent stable home at the earliest possible date.

               (a) The primary purpose of this part is protect children from unnecessary
       separation from parents who will give them good homes and loving care, to protect
       them from needless prolonged placement in foster care and the uncertainty it
       provides, and to provide them a reasonable assurance that, if an early return to the
       care of their parents is not possible, they will be placed in a permanent home at an
       early date.

               (b) The secondary purpose of this part is to provide a mechanism to monitor
       the care of children in foster care to insure that everything reasonably possible is
       being done to achieve a permanent plan for the child.


                                                  -4-
               (c) . . . When the interest of a child and those of an adult are in conflict, such
       conflict is to be resolved in favor a child, and to those ends this part shall be liberally
       construed.

Tenn. Code Ann. § 37-2-401 (1996).

       In determining whether the court’s notice that it would hold a permanency planning hearing
was sufficient to provide Ms. Graves with due process, we look to the Tennessee Supreme Court for
the requirements of due process.

       A fundamental requirement of due process is notice and an opportunity to be heard.
       Mullane v. Central Hanover Bank & Trust Co. 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed.
       865 (1950); In Re Riggs, 612 S.W.2d 461, 465 (Tenn.App. 1980). The purpose of
       notice is to allow the affected party to marshal a case . . . .

               “[D]ue process is flexible and calls for such procedural protections as the
       particular situation demands.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct.
       1187, 1191, 14 L.Ed.2d 62 (1965). In determining what process is due in a particular
       situation, three factors must be considered: (1) the private interest affected by the
       official action; (2) the risk of erroneous deprivation of the interest through the
       procedures used and the probable value, if any, of additional or substitute procedural
       safeguards; and finally, (3) the government’s interest, including the function involved
       and the fiscal and administrative burdens that the additional or substitute procedural
       requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893,
       903, 47 L.Ed.2d 18 (1976). Moreover, the component parts of the process are
       designed to reach a substantively correct result. Elaborate procedures at one stage
       may compensate for deficiencies at other stages. Bignall, 538 F.2d at 246.

Phillips v. State Bd. of Regents, 863 S.W.2d 45, 50 (Tenn. 1993). The Code set out specifically what
issues were before the court during a periodic permanency planning hearing and afforded the parents
the opportunity to come before the judge with counsel to defend their rights and record with regard
to their child.

        When we look at the authority and obligation of the court to periodically review and
determine the status of the child in light of the legislature’s intent to give dependent and neglected
children permanent and stable homes, it is evident that the juvenile court had the authority to review
Pamela’s status and create a permanent plan for her that was in her best interest, offering her the
opportunity for a permanent stable home. It was obvious to the juvenile court that placing Pamela
back with either parent would not be possible; thus, the judge determined that a change in the goal
of the permanency plan was in order. In furtherance of that goal, and in the best interests of Pamela
due to a threat of substantial harm, the juvenile court ordered a termination of visitation.




                                                  -5-
       However, even if the juvenile court’s notice of a permanency planning hearing had provided
inadequate notice of what issues would be before that court, the system provided Ms. Graves with
a second opportunity for a full, de novo, hearing. This matter was retried in the Circuit Court for
Lawrence County.

               The Due Process Clause requires the provision of a hearing “at a meaningful
       time.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 547, 105 S.Ct. at 1496. A
       post-decision hearing will suffice as long as it is held within a reasonable time in
       light of the issues and interests at stake. Although a post-decision hearing is often
       sufficient, the promptness in which one is held is of constitutional concern. Even
       though there is a point at which an unjustified delay in completing a post-deprivation
       proceeding would become a constitutional violation, the significance of such a delay
       cannot be evaluated in a vacuum. No precise rules exist to determine whether a delay
       in holding a hearing rises to the level of a constitutional problem. Rather, the
       importance of the private interest and the harm to this interest occasioned by the
       delay; the government’s interest and its reason for the delay; and the likelihood that
       the pre-hearing decision is erroneous are examined and weighed against each other.

State v. AAA Aaron’s Action Agency Bail Bonds, Inc., 993 S.W.2d 81, 86 (Tenn.Crim.App. 1998)
(citations omitted). There has been no argument that Ms. Graves was unaware of what issues before
the circuit court and we find the ten month delay for review reasonable in light of the nature of the
deprivation and the likelihood that the juvenile court’s decision was erroneous. As such, the
statutory notice of what issues are raised by a periodic review and the opportunity for de novo review
of the juvenile court’s decision by the circuit court provided a full and adequate notice of and
opportunity to be heard on all issues before the court.

                                                 II.

         The second issue presented is whether the circuit court properly terminated Ms. Graves’
visitation with her daughter. We find that the evidence does not preponderate against the circuit
court’s determination that continued visitation posed a substantial risk of harm to the child and that
termination was in Pamela’s best interests. At the circuit court trial, DHS called numerous
witnesses who testified to Ms. Graves’ lack of progress in rectifying the conditions which caused
Pamela to be removed from her parents including Ms. Graves’ lack of parenting skills and her
continual voluntary subjection to physical and sexual abuse.

       Bridget Massey, the DHS worker who handled Pamela’s case from her removal in October
of 1995 through March of 1996, set up a plan of care which involved Ms. Graves obtaining
counseling and attending parenting classes. She was also to obtain employment. Ms. Graves failed
to comply with this plan of care. She did not obtain employment and did not attend parenting classes
or any counseling regarding her domestic violence issues.




                                                 -6-
        During this period Ms. Graves moved in with a Mr. Charles Smithson and subjected herself
to continual domestic violence at his hand. Ms. Massey also testified to further abuse of Pamela by
Ms. Graves. Visitation, which had previously taken place at the home of Ms. Graves’ mother, was
changed due to this incident of abuse wherein Pamela was returned from visitation with injuries to
her bottom. Ms. Graves was charged with child abuse following that incident.

         From March of 1996 until August of 1996 Pamela’s case was handled by Jan Hill. Ms. Hill
testified to developing a second plan of care that contained the same responsibilities initially
determined by Ms. Massey to be necessary for reunification to occur. These responsibilities included
continued visitation with the child, counseling, a stable home life, employment, and parenting
classes.

        During Ms. Hill’s period of work with this case, Ms. Graves demonstrated an inability to
properly care for Pamela. She would overfeed Pamela until she threw up. She would also feed her
inappropriate foods for a child her age including french fries, Coke and large amounts of chocolate
and cookies. She further demonstrated bizarre behavior in interacting with the child, changing the
child’s clothes numerous times during a two hour visit.

        Ms. Hill testified that Ms. Graves informed her of domestic violence occurring at the hand
of Mr. Smithson, with whom she was living. Ms. Graves was forced to obtain a restraining order
against Mr. Smithson during several periods and admitted to Ms. Hill that she feared for her life.
Ms. Hill provided a ‘diary’, which was admitted into evidence and which was given to her by Ms.
Graves. This diary contained Ms. Graves’ harrowing account of seven days of physical and sexual
abuse beginning on approximately April 27, 1996. When Ms. Hill began working with Pamela’s
case, DHS attempted visitation at the home of Ms. Graves and Mr. Smithson; however, the domestic
violence prohibited continued visits in the home and DHS changed all visitation to their office. Ms.
Hill further testified that, during the visits at Ms. Graves and Mr. Smithson’s home, there was a
video camera set up in the home which appeared to make Ms. Graves extremely nervous.

         Tracy Oden of the Lawrenceburg Police Department testified to a domestic abuse complaint
received from Ms. Graves on January 19, 1997. Ms. Oden took a statement from Ms. Graves
wherein Ms. Graves stated that she had been struck by Mr. Smithson in the ribs with his fist and had
been whipped with a belt across the back and choked. Photos were taken of the bruises and marks
left by this abuse. Ms. Oden proceeded to the home of Mr. Smithson to arrest him for this abuse and
found him passed out on the couch with a loaded gun in his hand and one on his waist. He also had
75 to 100 rounds of ammunition in a stack near where he had passed out.

       The next case manager to handle Pamela’s case was Jenny Horton. The plan of care devised
by Ms. Horton contained the same elements as the previous plans of care. Ms. Horton testified that,
during her year of work with Pamela, Ms. Graves did not comply with the plan of care and her
circumstances did not change. She testified that visits were conducted at the DHS office when she
began working on the case due to the domestic violence issues. However, a large number of the



                                                -7-
scheduled visits were cancelled. During those which Ms. Graves attended, she would often lose
interest in Pamela prior to the end of the visit.

        Eventually visits resumed at Ms. Graves’ home; however, Ms. Horton also testified to the
bizarre home life which included a video camera set up in the home and Ms. Graves showing her an
album that contained pictures of Ms. Graves clothed in a see-through nightgown as well as pictures
of Mr. Smithson clothed in the same nightgown. Ms. Horton also testified to Ms. Graves’ continued
inability to properly care for her child. Problems with overfeeding and vomiting continued. She
further demonstrated lack of concern for Pamela by scaring her with a bird and then abusing the bird
in front of the child.

        Although Ms. Graves was allowed to have longer visits with Pamela and was allowed visits
supervised by family members during her time with this case, Ms. Horton did not feel that Pamela
would be safe if returned to her mother. She felt that Ms. Graves did not make an effort to comply
with the plan of care nor did she make any effort to assist Nancy Williams, the state worker tutoring
and counseling Pamela.

       Ms. Williams, an early intervention worker, testified that Pamela had motor and language
delays which she felt were caused by environmental conditions prior to her being taken from her
parents. She also testified to Pamela making great gains in foster care, to the point intervention was
no longer needed.

        On August 9, 1998, Ms. Graves made another call to the police department for domestic
abuse. Patrolman David Moore was called to the scene and testified at the trial regarding this
incident. Mr. Smithson had assaulted Ms. Graves and she informed Officer Moore that she intended
to leave Mr. Smithson. Officer Moore waited while Ms. Graves obtained some of her things. She
left with him in the police car. However, Ms. Graves failed to file any charges against Mr. Smithson
and returned to his home within 24 hours.

         Pamela’s first foster parent, Ms. Julie Parker, testified to some of the bizarre behavior and
lack of parenting skills witnessed to by the DCS workers. She saw injuries to Ms. Graves including
black eyes on several occasions. During visitation, when she took Pamela to Ms. Graves’ house, she
testified to seeing the video camera set up in the home and being shown the pictures of Ms. Graves
and Mr. Smithson in the see-through nightie. She also testified to Ms. Graves’ poor parenting skills
including overfeeding Pamela till she threw up and purchasing clothes inappropriately sized for her.

        Ms. Parker had custody of Pamela at the time of the incident of abuse at Ms. Graves’
mother’s house when Pamela was approximately six months old. She stated that Ms. Graves’
mother was supposed to be supervising the visit and telephoned her very upset stating that her
daughter had tried to leave with Pamela. When Pamela was returned to Ms. Parker, the inside of her
bottom was black. The doctor who treated Pamela informed Ms. Parker that she had been slammed
in the bottom. She was later told by Ms. Graves’ mother that Pamela had been slammed into the car
seat by Ms. Graves when she attempted to leave with the child.


                                                 -8-
        The last case manager to handle Pamela’s case was Catherine Bryant. When Ms. Bryant first
took over managing Pamela’s case the goal was reunification. Her plan was virtually the same as
previous plans and included counseling, parenting classes, the need for a job and a stable home
environment. She supervised 3 visits prior to termination of Ms. Graves’ visitation and testified to
seeing the video camera at the home of Ms. Graves and Mr. Smithson. However, Ms. Bryant was
only able to interact with Ms. Graves for less than two months, as she took over the case on June 1,
1998 and termination of Ms. Graves’ visitation followed the permanency planning hearing in July
1998. After this hearing, the plan’s goal was changed to termination of parental rights and visitation
ceased.

       Ms. Bryant also testified to the last foster care review which was held in November of 1998.
At that time, the foster care review board determined that reunification was not appropriate and
recommended termination of parental rights and adoption.

       Ms. Graves’ mother, Barbara Graves, expressed her concern over her daughter’s domestic
violence situation and recounted the incident of child abuse which occurred at her home. Ms.
Graves’ mother stated that she had offered to let Ms. Graves live with her on many occasions, but
she had refused to leave Mr. Smithson. Although Ms. Graves has “left” him on two or three
occasions after domestic violence incidents, she never stayed with her mother more than one day and
always returned to the home of Mr. Smithson.

         Pamela has been in foster care with Martha Woodward since April 11, 1993. Ms. Woodward
testified that Pamela had nightmares after visits with her mother and that these nightmares stopped
after visits with her mother ceased. She, along with Janice Myers from Child Protective Services,
also testified to another incident of possible child abuse. This occurred on approximately March 26,
1998. Pamela was returned to her foster mother after visitation with an injury to her left shoulder.
When questioned by Ms. Woodward and Ms. Myers, Pamela stated that “Mama Cox hit” her. She
was told by a physician that Pamela had been jerked by the arm.

       Ms. Graves, Pamela’s mother, also testified at the hearing. She stated that she did not know
anything about the shoulder injury, but she had previously pled guilty to the child abuse when she
threw Pamela into the car seat. She had finally completed parenting classes in April 1999. Her
testimony was that Mr. Smithson was not abusive, although he had been in the past. She stated that
Mr. Smithson had ceased any abusive activity and that she did not want to live with her mother,
Barbara Graves, because they “did not get along”.

        After hearing all of this evidence, the circuit court found that visitation was properly
terminated considering the mother’s history of violence, her denial of this violence, as well as her
lack of parenting skills. The court found that visitation posed a substantial risk of harm to the child
due to the mother’s unstable lifestyle and exposure to physical, sexual, and emotional abuse. The
DCS was ordered to file a petition for termination of parental rights as soon as possible.




                                                 -9-
       Our standard of review in this matter is “de novo upon the record of the trial court
accompanied by a presumption of correctness of the finding, unless the preponderance of the
evidence is otherwise.” State v. Conatser, 1990 WL 15540 at * 3 (Tenn.Ct.App.); see also Hass v.
Knighton, 676 S.W.2d 554 (Tenn. 1984). The facts as presented at the trial of this matter do not
preponderate against the circuit court’s finding that Ms. Graves’ visitation posed a substantial threat
of harm to Pamela and that termination of visitation was in her best interests.

        Two supreme court cases make clear the standards under which juvenile courts must operate
when dealing with dependent and neglected children. Although parents’ have a right to raise, care
for and have the companionship of their child under both Tennessee and U. S. Constitutions, these
rights can be infringed upon if the court finds substantial harm threatens a child’s welfare.

               Tennessee courts have historically held that,

               a parent is entitled to the custody, companionship, and care of the
               child, and should not be deprived thereof except by due process of
               law. It is a natural right, but not an inalienable one. The parents are
               trusted with the custody of the child upon the idea that under the
               instincts of parental devotion it is best for the child.

              Hawk v. Hawk, 855 573, 577 (Tenn. 1993) (quoting State ex rel. Bethell v.
       Kilvington, 100 Tenn. 227, 236, 45 S.W. 433, 435 (1898)). In Nale v. Robertson, 871
       S.W.2d 674, 680 (Tenn. 1994), the Court stated:

               This Court found in Davis v. Davis, 842 S.W.2d 588, 600 (Tenn.
               1992), that “there is a right of individual privacy guaranteed under
               and protected by the liberty clauses of the Tennessee Declaration of
               Rights.” This constitutional right of privacy includes parental rights.

                               In light of this right to privacy, we believe that
                       when no substantial harm threatens a child’s welfare,
                       the state lacks a sufficiently compelling justification
                       for the infringement on the fundamental right of
                       parents to raise their children as they see fit.

               Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993); see also
               Broadwell v. Holmes, 871 S.W.2d 471 (Tenn. 1994).

                Therefore, in a contest between a parent and a non-parent, a parent cannot be
        deprived of the custody of a child unless there has been a finding, after notice
        required by due process, of substantial harm to the child. Only then may a court
        engage in a general “best interest of the child” evaluation in making a determination
        of custody.


                                                 -10-
In re: Adoption of Female Child, 896 S.W.2d 546, 547-48 (Tenn. 1995).

        In 1993, the Tennessee Supreme Court approved a two step process to deal with child neglect
cases leading to placement in foster care.

               We, too, agree that neither the legislature nor a court may properly intervene
       in parenting decisions absent significant harm to the child from those decisions. In
       so holding, we approve the logic of Santosky v. Kramer, 455 U.S. 745, 102 S.Ct.
       1388, 71 L.Ed.2d 599 (1982), which applied a two-step process to child neglect cases
       leading to foster family placement. In Santosky, the Supreme Court approved New
       York’s bifurcated proceeding requiring the state first to establish parental unfitness
       before placing a child in foster care. This procedure assures parents that a “best
       interests of the child” analysis will not pit them against potential foster parents;
       rather, the state cannot consider a child’s “best interests” until the natural parents
       have been declared unfit. Id. at 759-61, 102 S.Ct. at 1397-98. An approach requiring
       a court to make an initial finding of harm to the child before evaluating the “best
       interests of the child” works equally well in this case to prevent judicial second-
       guessing of parental decisions.

Hawk, 855 S.W.2d at 581.

        The court made clear that there must be a threshold finding of harm before the state can
intervene in a parent-child relationship; however, once this finding of harm to the child is made, a
determination of custody is made based on the “best interest of the child”. This threshold finding
of substantial harm was made when Pamela was found by the juvenile court to be abused, dependent,
and neglected and removed form the custody of her parents and placed in foster care.

        Under Tennessee’s statutory scheme, once a child is placed in the foster care system the court
must conduct periodic reviews to continually determine the child’s best interests, setting out future
goals for providing the child with a permanent home and determining how those goals can best be
accomplished. It was determined by the judge that the best interest of the child would be served by
changing the goal of Pamela’s permanency plan to adoption rather than reunification, as reunification
was an impossibility. The circuit court further determined that visitation would pose a substantial
risk of harm to Pamela due to her mother’s continued subjection to physical, sexual and emotional
abuse, her mother’s denial of this abuse, as well as her unstable and erratic lifestyle. The evidence
provided proof of Ms. Graves’ lack of progress in over four years and of her continued subjection
to, and denial of, abuse. This evidence does not preponderate against the circuit court’s decision to
change the goal of the permanency plan and terminate visitation. However, at this time her parental
rights have not been terminated, so once a petition for termination of parental rights is filed, Ms.
Graves will have the opportunity to address that issue. The circuit court’s decision is affirmed.
                                                      ___________________________________
                                                      WILLIAM B. CAIN, JUDGE



                                                -11-
