STATE OF TENNESSEE, DEPARTMENT            )
OF CHILDREN’S SERVICES,                   )
                                          )    Davidson Juvenile
      Petitioner/Appellee,                )    File Nos.   08-04-58
                                          )                9419-11131
VS.                                       )                9419-11130
                                          )
AMY DIANE BOTTOMS and BRIAN               )
BOTTOMS, SR.,                             )    Appeal No.
                                          )    01A01-9706-JV-00249
      Respondent/Appellant.               )
                                          )
IN THE MATTER OF:                         )
BRIAN SCOTT BOTTOMS, JR.                  )
ISRAEL VAUGHN BOTTOMS                     )
ELIJAH KEANE BOTTOMS                      )

                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE

          APPEAL FROM JUVENILE COURT OF DAVIDSON COUNTY
                     AT NASHVILLE, TENNESSEE

                 HONORABLE ANDREW J. SHOOKHOFF, JUDGE


JOHN KNOX WALKUP
Attorney General and Reporter

DOUGLAS EARL DIMOND, BPR No. 17953
Assistant Attorney General
425 Fifth Avenue, South
Cordell Hull Building, 2nd Floor
Nashville, TN 37243-0499
ATTORNEY FOR PETITIONER/APPELLEE


LESLIE BARRETT KINKEAD, BPR No. 13299
P.O. Box 270683
Nashville, TN 37227-0683
ATTORNEY FOR RESPONDENT/APPELLANT, AMY DIANE BOTTOMS

J. MICHAEL O’NEAL, BPR No. 014654
P.O. BOX 60125
Nashville, TN 37206
ATTORNEY FOR RESPONDENT/APPELLANT, BRIAN SCOTT BOTTOMS, SR.


                        AFFIRMED AND REMANDED.


                                HENRY F. TODD
                                PRESIDING JUDGE, MIDDLE SECTION

CONCUR:
SAMUEL L. LEWIS, JUDGE
BEN H. CANTRELL, JUDGE
STATE OF TENNESSEE, DEPARTMENT                        )
OF CHILDREN’S SERVICES,                               )
                                                      )       Davidson Juvenile
       Petitioner/Appellee,                           )       File Nos.   08-04-58
                                                      )                   9419-11131
VS.                                                   )                   9419-11130
                                                      )
AMY DIANE BOTTOMS and BRIAN                           )
BOTTOMS, SR.,                                         )       Appeal No.
                                                      )       01A01-9706-JV-00249
       Respondent/Appellant.                          )
                                                      )
IN THE MATTER OF:                                     )
BRIAN SCOTT BOTTOMS, JR.                              )
ISRAEL VAUGHN BOTTOMS                                 )
ELIJAH KEANE BOTTOMS                                  )



                                     OPINION

       Brian Bottoms, Sr., and Amy Bottoms have appealed from the judgment of the Juvenile

Court, terminating their parental rights in respect to Brian Scott Bottoms, aged 7, Israel Vaughn

Bottoms, aged 5, and Elijah Keane Bottoms, aged 2, and placing them in the legal guardianship

of AGAPE with the right to place them for adoption.



       The parties have waived oral argument and have submitted the case to this Court upon

the record and briefs.



       The guardian ad litem of Brian Bottoms, Sr., has not filed a brief in this Court.



       The brief of appellants’ contains no “Statement of the Issues Presented for Review.”

However, appellants’ argument contains the following summary of their complaints:

                       I.      The State and AGAPE failed to produce
               legally sufficient evidence that they made reasonable efforts
               to reunify the family.

                      II.    The Department of Children’s Services and
               AGAPE failed to follow State and Federal mandates to place
               the children in the least restrictive placement available,
               namely the home of the maternal grandparents.




                                             -2-
                        III.   The father’s right to due process was violated
               by the failure of the trial court to require his physical presence
               at the termination of parental rights hearing.


       On August 5, 1994, appellants’ voluntarily placed the three subject children in the

custody of AGAPE, a suitable child care and placement agency.



       On August 8, 1994, appellants’ signed a “plan of care” wherein they agreed to perform

seven conditions of the agreement. The agreement was not performed. Appellants’ did not visit

the children regularly.



       A number of subsequent plans of care were violated by appellants who refused assistance

in arranging treatment for their own disabilities.



       On February 21, 1995, the parents of Mrs. Bottoms were notified by the Court to file a

petition if they desired to assume custody and care of the children. On June 12, 1995, a petition

was filed. Following a study of the home of the petitioners, the petition was denied.



       At the termination hearing, the father of Mrs. Bottoms testified of her violent knife attack

upon him, of his fear of her and of his desire to abandon his renewed petition for custody.



       On May 30, 1996, after nearly two years of intensive efforts to rehabilitate and reunite

the family, the present action was filed in Juvenile Court. The cause was heard by the Juvenile

Judge on October 4, 9, 10 and 14.



       Experts in mental health testified of extensive mental disabilities of appellants.



       At the time of the trial, Mr. Bottoms was in federal custody. His custodians declined to

produce his presence at trial. A guardian ad litem was appointed for him, and he was represented

by appointed counsel. The Court offered the opportunity of testimony by video disposition. A

                                                -3-
telephone connection was arranged whereby Mr. Bottoms was enabled to hear and participate

in the proceedings, and he did so.



       The Technical Record consists of 456 pages.



       The Transcript consists of 575 pages of testimony, 403 pages of depositions, including

those of Mr. and Mrs. Bottoms, a video tape of Mr. Bottom’s deposition and a storage box filled

with exhibits.



       On December 20, 1996, the Juvenile Judge filed a “Memorandum Opinion and Final

Order” including the following:

                                      FINDINGS OF FACT

                         Brian Scott Bottoms, Jr. came into state custody on
                 March 9, 1995. He had previously been placed voluntarily
                 with AGAPE on August 8, 1994 by the parents due to the
                 parents’ homelessness and inability to provide for the
                 children. On March 9, 1995 the Court found Brian Scott
                 Bottoms, Jr. to be a dependent and neglected child due to the
                 parents’ failure to secure housing and employment , their
                 sporadic visiting, and the mother’s diagnosis with a bi-polar
                 disorder.
                                              ----
                         Israel and Elijah came into the custody of AGAPE on
                 August 8, 1994 as a result of being voluntarily placed there by
                 the parents due to their homelessness, and have continuously
                 been in AGAPE’s custody since August 8, 1994.
                                              ----
                         On June 12, 1995, a review was held. The Court
                 found that Mrs. Bottoms had only made two visits with Brian
                 and the other children. Mrs. Bottoms was 30 minutes late on
                 the last visit. Israel and Elijah has been moved to another
                 AGAPE foster home because Mr. and Mrs. Bottoms had
                 learned of the location and telephone number of the foster
                 home and several calls were made by someone to the home
                 which caused the foster parents concern after Mr. Bottoms
                 was arrested and charged with criminal activity. Mrs.
                 Bottoms had recently checked into Parthenon Pavilion where
                 she stay two weeks. She was discharged June 12, 1995 with
                 a discharge note that she planned to live with her family. She
                 stated she felt her medication had been stabilized and she
                 could live with her parents in Springville, but did not want to
                 if the boys could not go with her. Mrs. Bottoms had dropped
                 out of sight for some time and her whereabouts had been
                 unknown to AGAPE and the Department. She reappeared

                                              -4-
about two weeks later prior to going into Parthenon. Prior to
that, she had been referred to counseling, parenting classes
and Mental Health Coop, but had not followed through.
                               ----
         On June 3, 1996 an Order was entered ceasing
visitation between Brian Bottoms, Jr. and his mother. The
Court made extensive findings of facts regarding Brian’s
desire to cease visits and his attitude following visits. Dr.
Berryman, the therapist, testified that Brian Bottoms, Jr. had
inappropriate skills due to neglect and abuse. Dr. Berryman
further testified that despite instructions not to discuss certain
matters with Brian Bottoms, Jr., Mrs. Bottoms brought up the
prohibited discussions. Mrs. Bottoms had told Dr. Berryman
that she and her husband could control the weather and Mrs.
Bottoms stated that Mr. Bottoms spoke to God and she could
guarantee a blizzard would occur within ten days as Mr.
Bottoms would cause this to happen.

        Mrs. Bottoms had not visited during the five weeks
immediately preceding the June 3, 1996 hearing, and had lost
contact with the social worker and Brian Bottoms, Jr. This
had been the most stable five weeks in Brian’s life since
coming into foster case. The father was not present at the
June 3 hearing due to his incarceration, but was represented
by counsel. The therapist testified she believed Brian
Bottoms, Jr. would be harmed by going to the jail for visits
with his father but he could receive letters from his father if
his father would ask how he was doing and refrain from
rambling statements which raise hopes and expectations. She
was willing to allow the father to send letters to her that she
could share with Brian Bottoms, Jr. if they were appropriate.
She further testified that Brian needed consistent long term
treatment and had spent most of his life disassociated from his
family because of his parents’ behaviors and leaving him
place to place with different people and their inability to
nurture him. She testified that Brian’s prognosis was very
guarded because of the limited emotional support he has
received throughout his life and because of his parents’
mental illness.

        Amy York testified as to the tasks under the Plan of
Care for March, 1995. The parents were in Court and Referee
Walker modified the Plan of Care to accommodate requests
for changes by Mr. Bottoms. She personally gave Mrs.
Bottoms the Plan of Care and discussed it with both parents.
The 1996 Plan of Care was given to Mr. Bottoms’ attorney
and Mrs. Bottoms’ attorney and the Guardian ad litem. They
were also provided notice or the procedures for termination of
parental rights. There was substantial noncompliance by the
parents to the Plan of Care. Both parents received a copy of
the original plan as to all three children from AGAPE. The
parents signed the Plans and acknowledged the procedures for
termination.

       Cindy Holton testified as to all the services offered
and provided by AGAPE to the parents. The parents failed to

                               -5-
substantially comply with the Plans of Care as to all three
children. Mrs. Bottoms admitted in her testimony that she
has failed to maintain stable housing, that she had not
completed a parenting course, and that she had been
noncompliant with taking her medication. The testimony was
also clear that Mrs. Bottoms did not schedule a three hour
visit every three weeks or pay child support outlined by the
plan of care. Mrs. Bottoms further failed to take her
prescription daily and on time, and she failed to attend
individual therapy one time a week.


        Mr. Bottoms has only forwarded one letter to his son.
Prior to his incarceration, Mr. Bottoms’ contact with his
children was sporadic. Mr. Bottoms failed to maintain stable
housing. Although Mr. Bottoms has been incarcerated part of
the time the children have been in care, with the children first
being placed with AGAPE on August 8, 1994, he failed to
maintain stable housing during the period of time he was not
incarcerated. Mr. Bottoms further failed to attend regular
counseling and pay child support, although based on his
testimony he had sufficient income to do so.

        Brian Bottoms, Jr., Elijah and Israel Bottoms have
been in custody of the Department and AGAPE respectfully,
for two years now. The conditions leading to custody were
unstable housing, no stable employment, and Mrs. Bottoms’
mental health issues. Once in custody Mr. Bottoms’ mental
health has become an obstacle to reunification.

        The testimony established with respect to Mrs.
Bottoms a long history of mental illness, failure to follow
through with therapy, noncompliance with needed medication
and episodes of disorientation, suicidal intention; and
aggressive behavior. Mrs. Bottoms suffers from a Bipolar
disorder which cannot be managed effectively because of her
failure to comply with treatment. She has compounded her
problems by use of illegal drugs. Based on the testimony of
those who have treated and evaluated has as well as her
testimony and those of her parents and Mr. Bottoms, it is not
likely that Mrs. Bottoms would be able to effectively parent
her children due to her severe level of mental illness and her
inability or unwillingness to follow through with treatment.

        Mr. Bottoms failed to maintain stable housing. He
rejected available low cost or subsidized housing that was
within his economic resources to obtain. Mr. Bottoms was
unavailable at the time of trial and is still unavailable. He
testified he does not know how much longer he will be
detained in Federal custody. He has been declared mentally
incompetent to stand trial.

       As to Mr. Bottoms, a psychological examination was
introduced through Dede Wallace dated January 24, 1995.
During the examination Mr. Bottoms denied the need for
mental health treatment. He stated that he had seen


                              -6-
extraterrestrial beings and has had encounters with them and
may have been abducted by them. He admitted a history of
marijuana, alcohol and cocaine use. He stated that he has to
do everything for his wife and that he had only seen his
children twice since August, 1994. He stated that his wife
goes after him with knives and throws manic depression fits.
He stated that he had been babysitting for his wife for six
years and lost jobs because she goes to his job sites.

        Dr. Morgan testified on August 15, 1996 that she had
performed the January 24, 1995 psychological and Mr.
Bottoms was diagnosed at that time with Bipolar Disorder.
She stated that she recommended a psychiatric evaluation and
individual therapy as well as a formal parenting evaluation.
She testified that based on the evaluation and meeting with
Mr. Bottoms, this diagnosis would impose severe limitations
on his ability to parent or provide stability. She stated that
because of his own personality style there are significant
questions regarding his ability to provide a supportive and
stable environment for his children.

         Dr. John Griffin, who was retained by Mr. Bottoms’
criminal lawyer, performed an evaluation regarding Mr.
Bottoms competency to stand trial. Initially when Dr. Griffin
saw Mr. Bottoms in July, 1995 his diagnostic impression was
personality disorder. On March 18, 1996, at the request of
Buford Bates, attorney for Mr. Bottoms, Dr. Griffin again
evaluated Mr. Bottoms. At that time, his diagnostic
impression was psychotic disorder and personality disorder.
He did not believe Mr. Bottoms was competent to stand trial
at that time. He saw Mr. Bottoms again on April 25, 1996 as
a result of being subpoenaed to court by Mr. Bottoms. Dr.
Griffin testified that children being raised by parents with this
diagnosis are predisposed to having problems of their own.
He testified that Mr. Bottoms as of April, 1996 had significant
psychiatric problems that would, in his opinion, have
significant detrimental effects on the children.

        Elijah and Israel are in a pre-adoptive foster home.
The foster home for Brian Bottoms, Jr. has not ruled out
adoption. Elijah and Israel are doing very well in their
respective home, and are thriving and very happy. Brian, Jr.
had made great progress, given the significant difficulties he
has had and is doing considerably better since the suspension
of contact with his parents.

        Dr. Berryman testified that Brian, Jr. is emotionally
attached to the current foster parents. Dr. Berryman testified
Brian, Jr. has an attachment disorder, and he avoids parental
issues and doesn’t bring them up. She testified as to his
progress since the visits were ceased with his mother at the
June 3, 1996 hearing. She testified that she did not believe he
could be successfully transitioned back to his parents but he
could transition to another home if the current placement
turns out not to be adoptive.



                              -7-
                       CONCLUSIONS OF LAW

              The proof in this case establishes by clear and
      convincing evidence grounds for termination pursuant to
      T.C.A. Section 36-1-113(g)(3).
                                     ----
              Based upon the proof presented, the Court finds that
      grounds for termination have been established and that it is in
      the best interest of the children that the termination petition be
      granted.

              It is hereby Ordered that the parental rights of Brian
      Bottons, Sr. and Amy Bottoms with respect to Brian, Jr.,
      Israel and Elijah Bottoms be and hereby are terminated and
      the child, Brian, Jr., is hereby placed in the legal guardianship
      of the Tennessee Department of Children’s Services, and the
      children, Israel and Elijah Bottoms are hereby placed in the
      legal guardianship of AGAPE with the right to place the
      children for adoption.


TCA § 36-1-113(g) provides:

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

              (1)     Abandonment by the parent or guardian, as
                      defined in § 36-1-102, has occurred;
              (2)     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;

              (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 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 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 stable and permanent home.



                                     -8-
                                         First Issue

                                Sufficiency of Evidence
                              of Efforts to Reunify Family


       The evidence overwhelmingly supports the findings of the Trial Court. No basis

is found for modification or reversal of said findings.



                                        Second Issue

                     Failure to Place Children with Grandparents


       The record clearly indicates the unwillingness of one grandparent and the inability

of both to satisfactorily care for the children. No basis is shown for reversal of the denial

of the petitions of the grandparents.


                                        Third Issue

                     Violation of Due Process in Respect to Father


       A prisoner does not forfeit his constitutional right to access to civil courts by his

conviction and incarceration, but a prisoner will not normally to allowed to appear

personally in a civil case absent unusual circumstances. Whisman v. Byrd, Tenn. 1975, 575

S.W.2d 154. TCA § 41-21-304 permits a prisoner to testify by deposition.



       In the present case, the prisoner was in the custody of federal officials who declined

to allow him to appear in court.



       No merit is found in any of the issues or arguments of the appellants. The judgment

of the Juvenile Court is affirmed. Costs of this appeal are assessed against the appellants.




                                            -9-
The cause is remanded to the Juvenile Court for any necessary further proceedings.



                         AFFIRMED AND REMANDED.




                                            HENRY F. TODD
                                            PRESIDING JUDGE, MIDDLE SECTION



CONCUR:




SAMUEL L. LEWIS, JUDGE




BEN H. CANTRELL, JUDGE




                                           -10-
