                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                             On Briefs January 19, 2005 Session

  STATE OF TENNESSEE DEPARTMENT OF CHILDREN SERVICES v.
               DIANE YVONNE SANGSTER, ET AL.

               A Direct Appeal from the Juvenile Court for Lauderdale County
                   No. J5-906    The Honorable Rachel J. Anthony, Judge



                    No. W2004-02060-COA-R3-PT - Filed February 4, 2005


         This is a termination of parental rights case. The parents appeal from the order of the
Juvenile Court of Lauderdale County, terminating their parental rights. Specifically, Appellants
assert that the grounds of abandonment for failure to support and severe child abuse cited for
termination are not supported by clear and convincing evidence in the record and that termination
of their parental rights is not in the best interests of the child. Because we find clear and convincing
evidence in the record to support the trial court’s findings, we affirm.


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

W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. and HOLLY M. KIRBY , J., joined.

Barbara A. Deere of Dyersburg for Appellant, Lafayette Douglas Sangster
J. Barney Witherington IV for Appellant, Diane Sangster

Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond, Senior Counsel for
Appellee, Tennessee Department of Children's Services

                                              OPINION

        LaFayette Douglas Sangster and Diane Yvonne Sangster (together, the “Sangsters,”
“Respondents,” or “Appellants”) appeal from the termination of their parental rights to their child
L.S. (d.o.b. 3-3-98). L.S. has three half-siblings, T.T. (d.o.b. 8-5-93), B.T. (d.o.b. 10-10-96) and
D.T. (d.o.b. 3-3-98). On August 20, 2002, nine-year-old B.T. arrived at school with facial injuries
that included swelling of his lower lip, his nose, and his forehead, as well as bruises and scars on his
back and legs in various stages of healing. B.T., who wore a helmet as a result of a seizure disorder,
was transported by ambulance to MedSouth Healthcare. B.T. reported that his stepfather, LaFayette
Sangster, had hit him. Medical examinations revealed that D.T. and T.T. also had scars and bruises
on their backs and legs in various stages of healing. On August 22, 2002, the State of Tennessee
Department of Children’s Services (“DCS,” or “Appellee”) filed a “Petition for Temporary
Custody.” On that same day, the trial court entered a “Protective Custody Order.”


        Diane Sangster initially denied any abuse. However, she later admitted that LaFayette
Sangster had injured B.T. by hitting him in the face and that she and LaFayette Sangster had both
administered whippings with a double leather carpenter’s belt. LaFayette Sangster admitted hitting
B.T. in the face with a weight belt. The Sangsters were arrested and charged with aggravated child
abuse.

        On September 17, 2002, DCS prepared a Permanency Plan, which was signed by the
Sangsters. The Permanency Plan contained no responsibilities for the Sangsters and no services to
be provided by DCS. In an “Affidavit of Reasonable Efforts,” signed and filed on October 7, 2002,
DCS case manager Patricia Smith stated that DCS had not provided services to the family due to the
indication that there would be a severe abuse finding.1 The Permanency Plan was ratified by Order
entered December 5, 2002.

       A final hearing on DCS’ “Petition for Temporary Custody” was held on October 7, 2002.2
On November 14, 2002, the trial court entered an “Order on Adjudication and Disposition.” “Upon
agreement of the parties,” the trial court found by clear and convincing evidence that the children
were dependent and neglected. The Order also reflects that the Sangsters stipulated to the following:

                   Having been represented by counsel and informed of his rights,
                   LaFayette Sangster stipulates to a finding that [L.S.] is a dependent
                   and neglected child, who has been severely abused pursuant to T.C.A.
                   37-1-102 (b)(21)(A), (B); that LaFayette Sangster knowingly failed
                   to protect said child from the abuse....

                   Having been represented by counsel and informed of her rights Diane
                   Sangster stipulates to a finding that [T.T., B.T., D.T. and L.S.] are
                   dependent and neglected children, who have been severely abused
                   pursuant to T.C.A. 37-1-102 (b)(21)(A), (B); that Diane Sangster
                   knowingly failed to protect said children from the abuse....

The trial court notes in this Order that the three oldest children, T.T., B.T., and D.T., had previously
been taken into DCS’ custody due to a similar incident in which LaFayette Sangster inflicted abuse
on these children. The trial court also imposed support obligations on the Sangsters. Effective
October 1, 2002, Diane Sangster was ordered to pay total child support of $780 per month. LaFayette


       1
            See T.C.A. § 37-1-166(g)(4)(A) and discussion infra.

        2
            A probable cause hearing was waived by the parties upon an Agreed Order entered on November 14, 2002.

                                                        -2-
Sangster was ordered to pay support of $300 per month for L.S.’s support, also effective October 1,
2002.
       On July 22, 2003, DCS filed a “Petition to Terminate Parental Rights” (the “Petition”)
seeking termination of the Sangsters’ parental rights to L.S. As grounds, DCS alleged severe child
abuse pursuant to T.C.A. § 36-1-113(g)(4), noting that the trial court had found such abuse in its
November 14, 2002 “Order of Adjudication and Disposition.” DCS also alleged abandonment
pursuant to T.C.A. § 36-1-113(g)(1), asserting that the Sangsters had willfully failed to pay child
support. The Sangsters entered separate Answers to DCS’ Petition. She on September 11, 2003 and
he on January 12, 2004. Both denied the grounds relied upon by DCS in its Petition. On January
12, 2004, Diane Sangster also entered a Counter-Petition seeking visitation with L.S. On February
2, 2004, the Sangsters filed separate “Motion[s] for Extraordinary Relief and Memorandum of Law.”
These respective Motions read the same and, in relevant part, as follows:

               1. Respondent[s] did plead guilty to child abuse charges in
               Lauderdale County Circuit Court and did serve a jail sentence for said
               charges.

               2. On November 14, 2002, under the advice of [the Sangsters’
               respective attorneys], Respondent[s] did stipulate to a finding of
               severe child abuse, whereby this Court did enter an order reflecting
               said stipulation on that same date.

               3. Respondent[s] [were] unaware both at the time [they] pled guilty
               and the time[they] stipulated to a finding of severe child abuse that
               these concessions could result in the termination of [their respective]
               parental rights.

               4. Respondent[s] would neither have pled guilty nor stipulated to a
               finding [of] child abuse had [they] known that termination of [their]
               parental rights would likely result by [their] so yielding.

               *                                  *                          *

               10. Respondent[s] did not stipulate to severe child abuse voluntarily
               and with full knowledge of the direct consequences of [their]
               stipulation.

               11. Respondent[s’] stipulation[s] to severe child abuse w[ere] invalid
               and should be set aside.

       A hearing was held on April 19, 2004. Following that hearing, the trial court entered its
“Findings of Fact and Conclusions of Law and Order Terminating Parental Rights” (the “Final
Order”) on July 20, 2004. The Final Order reads, in pertinent part, as follows:


                                                -3-
11. Respondents Diane Sangster and LaFayette Sangster did not pay
court ordered support for [L.S.].... Both Respondents were aware of
their child support obligation. While under the support obligation
they were temporarily incarcerated, lost employment, incurred court
costs, fines , and probation fees, and lost personal property, but they
had not been incarcerated, incapacitated or restricted from working
by a medical physician for the four months preceding the filing of the
TPR petition. Respondent Diane Sangster admitted to both working
and receiving unemployment [compensation] during the same four-
month period. She further testified that the support was taken out of
her wages and unemployment benefits; however, the NPSS screens
for the Department of Human Services do not reflect any payments
by her during this time.            Respondent LaFayette Sangster
acknowledged that he had income during this time frame from
mowing lawns but did not pay his child support. Respondents
contend that they filed bankruptcy after [L.S.] and her siblings were
removed and thus [were] not able to pay child support.
Respondent[s’] bankruptcy status does not absolve them of their
obligation to pay support. Nor did Respondents provide any
information that they had included their child support obligation in
their bankruptcy. The Respondents’ failure to pay the court-ordered
child support for four months preceding the filing of the TPR petition
is willful.

*                               *                              *

                   CONCLUSIONS OF LAW:

*                               *                                *

2. There is clear and convincing evidence to terminate parental rights
pursuant to T.C.A. §36-1-113(g)(1), in that Respondents Diane
Sangster and LaFayette Sangster have willfully abandoned their
minor child, [L.S.], pursuant to T.C.A. § 36-1-102(1)(A)(i), by
willfully failing to provide support or make reasonable payments
toward the support of the child for a period of four months preceding
the filing of the petition.

3. There is clear and convincing evidence to terminate parental rights
pursuant to Tennessee Code Annotated § 36-1-113 (g)(4), in that
Respondents have been found to have committed severe abuse against
[L.S.] as defined in Tennessee Code Annotated § 37-1-102 by order
of this Court entered November 14, 2002.


                                 -4-
               4. Termination of Parental Rights is in the best interest of the minor
               child pursuant to T.C.A. 36-1-113.

         The Sangsters appeal from the Final Order and raise two issues for review: (1) Whether
the trial court erred in finding that the State has proved, by clear and convincing evidence, the
grounds for termination of the Sangsters’ parental rights; and (2) Whether the trial court erred in
finding, by clear and convincing evidence, that termination of the Sangsters’ parental rights is in
the best interest of the minor child.


        Since this case was tried by a court sitting without a jury, we review the case de novo
upon the record with a presumption of correctness of the findings of fact by the trial court. Unless
the evidence preponderates against the findings, we must affirm, absent error of law. See Tenn.
R. App. P. 13(d).

        T.C.A. § 36-1-113(c)(Supp. 2004) governs termination of parental rights and requires that
such termination be based upon:

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

Grounds for Termination

The trial court terminated the Sangsters’ parental rights on the grounds of abandonment and
severe child abuse, which are codified at T.C.A. § 36-1-113(g)(1) and T.C.A. § 36-1-113(g)(4)
(Supp.2004) respectively, to wit:

               (g) Initiation of 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;

               *                                   *                            *

               (4) The parent or guardian has been found to have committed severe
               child abuse as defined in §37-1-102, under any prior order of a court
               or is found by the court hearing the petition to terminate parental
               rights or the petition for adoption to have committed severe child
               abuse against the child who is the subject of the petition or against


                                                 -5-
               any sibling or half-sibling of such child, or any other child residing
               temporarily or permanently in the home of such parent or guardian;


        T.C.A. § 36-1-113 (c) allows for termination of parental rights if any one of the grounds
outlined in T.C.A. § 36-1-113(g) are found by clear and convincing evidence, and termination is in
the best interest of the child. We have reviewed the entire record in this case and we find that the
record is replete with evidence to support the trial court’s finding that termination of the Sangsters’
parental rights is warranted on the grounds listed in the Final Order. We further find, in accordance
with the trial court, that termination of the Sangsters’ parental rights is in the best interest of this
child.

Abandonment Grounds

       T.C.A. §36-1-102(1)(A)(Supp. 2004) defines “Abandonment,” in relevant part, as follows:

               (1)(A) “Abandonment” means, for purposes of terminating the
               parental or guardian rights of parent(s) or guardian(s) of a child to
               that child in order to make that child available for adoption, that:

                       (i) For a period of four (4) consecutive months immediately
               preceding the filing of a proceeding or pleading to terminate the
               parental rights of the parent(s) or guardian(s) of the child who is the
               subject of the petition for termination of parental rights or adoption,
               that the parent(s) or guardian(s) either have willfully failed to visit or
               have willfully failed to support or have willfully failed to make
               reasonable payments toward the support of the child;

        The trial court terminated both of the Sangsters parental rights to L.S. on the grounds of
abandonment for their failure to provide any child support in the four months preceding the filing
of the Petition. At trial, Diane Sangster testified that she had paid some support for L.S. through
wage assignment in the months immediately preceding DCS’ filing. In its brief, DCS states that
“[w]hile the trial court also terminated Ms. Sangster’s parental rights on [abandonment]
ground[s], the State has reason to believe Ms. Sangster’s testimony, although undocumented in
the record, that she paid child support via wage assignment during at least some of the relevant
period and [the State] will not therefore defend the trial court’s decision against her on this
ground.” Because DCS concedes that this ground is not applicable to Diane Sangster, we will
address only whether there is clear and convincing evidence to support termination of LaFayette
Sangster’s parental rights on this ground. We find that such evidence exists. Concerning his
support payments during the relevant four month period, LaFayette Sangster testified, in relevant
part, as follows:




                                                  -6-
              Q. So, during those months, four months [preceding the filing of
              the Petition to Terminate], you [LaFayette Sangster] were
              unemployed, you said?

              A. Yes.

              Q. Your wife testified that you helped her pay the bills.

              A. Yes.

              Q. And that she relied on your income during that time?

              A. Pushing lawn mowers.

              Q. So, you were able to make some money. You just testified that
              you were unemployed.

              A. Yes. I was just saying I wasn’t employed, you know, at a
              factory or such. That’s what I’m talking about.

              Q. Okay. So, you were making money during that time?

              A. Yeah.

              *                              *                            *

              Q. So, you were able to work and did make money?

              A. Just working yards.

              Q. Did you pay any child support during that time?

              A. No, ma’am.

By his own testimony, it is clear that LaFayette Sangster made some income during the four
month period preceding DCS’ filing and paid no portion of it toward the support of L.S.
Grounds of abandonment vis a vis LaFayette Sangster are, therefore, met by clear and convincing
evidence.

Severe Child Abuse Grounds

       T.C.A. §37-1-102(b)(21) (Supp. 2004) defines “Severe Child Abuse,” in relevant part, as
follows:


                                                 -7-
               (21) “Severe child abuse” means:

                       (A) The knowing exposure of a child to or the knowing failure
               to protect a child from abuse or neglect that is likely to cause great
               bodily harm or death and the knowing use of force on a child that is
               likely to cause great bodily harm or death;

         It is clear from the statute and the relevant case law that a parent who knowingly permits
severe abuse is as culpable as the person who inflicts such abuse. See, e.g., Nash-Putnam v.
McCloud, 921 S.W.2d 170, 176 (Tenn. 1996) (holding that “[a]llowing a child to be abused is
egregious abuse”). In this case, the Sangsters, through counsel, stipulated that they had committed
severe child abuse and the trial court so found by clear and convincing evidence in its Order of
November 14, 2002, see supra. The Sangsters also pled guilty to criminal charges of child abuse and
served jail time for those offenses. Notwithstanding these stipulations, findings, and pleadings, the
evidence adduced at the hearing on DCS’ Petition clearly and convincingly supports a finding that
the three half-siblings of L.S. were severely abused at the hands of the Sangsters. The photographs
admitted as collective Exhibit 1 evince long-term and systematic beatings of these minor children.
The photographs are corroborated by the testimony of April Smith, the DCS case worker who was
initially called to the children’s school to investigate, and also by the testimony of Diane Sangster,
to wit:

               Q. Ms. Sangster, do you believe that your husband abused your three
               boys, or do you believe it was corporal punishment?

               A. I believe it was corporal punishment that went out of hand. It
               went out of hand.

               Q. You can’t even acknowledge that it was abuse?

               A. Well, it, you know, at the time I believed it to be corporal
               punishment, but the way it’s, you know, the way it’s looked at now,
               it’s abuse.

               *                                 *                                 *

               Q. I’m sorry. You said you now agree that it’s abuse?

               A. Well, at the time, you know, at the time we thought that, you
               know, that it was just corporal punishment.

                        But, you know, as we’ve had time to, you know, as we’ve
               been away from the children and everything, we have had time to
               talk, talk about our feelings and everything, you know.


                                                 -8-
                          It was abuse, but it was unintentional. It was unintentional.
                  It was unintentional.

                  Q. You said he [LaFayette Sangster] would go into a room by
                  himself, and he would–I believe your words–administer corporal
                  punishment, but it was unintentional. So, was it unintentional that
                  you characterize–

                  A. It was unintentional abuse.

                  Q. Oh, okay. But he [LaFayette Sangster] intentionally hit the kids;
                  right?

                  A. He wasn’t trying to hurt the children. He was trying to administer
                  corporal punishment. He was–

                  Q. So, you’re justifying what he did?

                  A. At that time I had justified it at that time.

This portion of Diane Sangster’s testimony not only corroborates the fact that LaFayette Sangster
abused these children; it also provides proof that Diane Sangster knew that he was beating the
children–a fact that makes her equally culpable under the statute as discussed above.

         In his brief, LaFayette Sangster argues that “L.S. showed no physical signs of abuse.” This
fact is unpersuasive under the statute, which clearly states that the ground is met when the abuse is
perpetrated upon “ the child who is the subject of the petition or against any sibling or half-sibling
of such child.” T.C.A. § 36-1-113 (g)(4). That requirement is clearly met in this case.

     LaFayette Sangster also contends that DCS failed to provide reasonable services in this case.
However, T.C.A. §37-1-166(g)(4)(A) (2001) states:

                  (4) Reasonable efforts of the type described in subdivision (g)(2) shall
                  not be required to be made with respect to a parent of a child if a
                  court of competent jurisdiction has determined that:

                          (A) The parent has subjected the child that is the subject of the
                  petition or any sibling or half-sibling of the child who is the subject
                  of the petition or any other child residing temporarily or permanently
                  in the home to aggravated circumstances as defined in § 36-1-102; 3



       3
           T.C.A. § 36-1-102(9) (Supp. 2004) defines “Aggravated circumstances” to include severe child abuse.

                                                       -9-
Based upon the trial court’s finding of severe abuse in its November 14, 2002 Order, DCS is
statutorily absolved from providing such efforts to the Sangsters.

         Based upon the foregoing, there is clear and convincing evidence in this record to support
the trial court’s finding that the Sangsters committed severe child abuse upon the half-siblings of
L.S. This ground is, therefore, met.

Best Interests

       Having found that all of the grounds for termination listed in the Final Order are well
supported by clear and convincing evidence in this record, we now turn to the question of
whether the evidence clearly and convincingly evinces termination to be in L.S.’s best interest.

       T.C.A. §36-1-113(i) (Supp. 2004) reads, in relevant part, as follows:

                 (i) In determining whether termination of parental or guardianship
                 rights is in the best interest of the child pursuant to this part, the court
                 shall consider, but is not limited to, the following:

                 (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;



                                                    -10-
               (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.

In this case, the trial court made the following findings in its Final Order concerning best interests:

               12. The Court finds that it is in the best interest of [L.S.] that the
               parental rights of Respondents Diane Sangster and LaFayette Sangster
               be terminated, because:

               a) Respondents Diane Sangster and LaFayette Sangster have failed to
               make an adjustment of circumstance, conduct, or conditions as to
               make it safe and in the child[’s] best interests to be in the home of
               Respondents. DCS made clear to Respondents, in August 2002, their
               intention to seek a severe abuse finding and not return [L.S.] to them.
               Respondents participated in a permanency plan staffing and signed in
               agreement with the plan wherein the goals of the plan were Adoption
               and Exit Custody to Live with Relative. Pat King, the initial home
               county case manager assigned to [L.S.], was the DCS employee who
               participated in the staffing. Ms. King testified that she made clear
               during the staffing to the Respondents that because of the severity of
               the abuse DCS did not intend to return [L.S.] to them and would not
               provide them services. Respondents Sangster were not prohibited
               from obtaining services on their own. Respondents are no strangers
               to dependency and neglect/abuse issues, as set out herein above.
               Respondent Diane Sangster’s three sons were removed from her
               custody by DCS in Haywood County as the result of Respondent
               LaFayette Sangster’s infliction of physical injury, and he was
               incarcerated. While Respondents offered proof of attempts at
               counseling with their pastor (who is not a licensed therapist), they did
               not disclose to the pastor that this was a repeat instance of abuse and
               evinced minimal, if any, improvement or adjustment as a result of
               said counseling.

               b) At the time of the physical abuse against Respondent Diane
               Sangster’s children, Respondents were residing in the same house.
               Pictures of the boys’ injuries depict both brutality and physical abuse
               by Respondent LaFayette Sangster against [L.S.’s] siblings. Both



                                                 -11-
               Respondents pled guilty to criminal charges stemming from the
               instant abuse.

               c) Respondents have failed to pay their court ordered child support.

Like the trial court, this Court is particularly concerned with the repeat nature of the abuse
against L.S.’s half-siblings. There is no evidence in this record, other than their own testimonies
and the fact that they have completed an anger management course, to support a finding that the
Sangsters have the skills necessary to control and parent these children without resorting to their
pattern of violence. Given the severe and brutal nature of the abuse inflicted upon L.S.’s half-
siblings (as evinced by the photographs and testimony), it would be a chance too great to risk to
place any child back into this home. From the record as a whole, we find that there is clear and
convincing evidence to support the trial court’s finding that it is in L.S.’s best interests to
terminate the Sangsters’ parental rights.

       For the foregoing reasons, we affirm the Final Order of the trial court, terminating the
parental rights of Diane Sangster and Lafayette Sangster to L.S. Costs of this appeal are assessed
one-half to Appellant Diane Sangster and her surety and one-half to Appellant LaFayette
Sangster and his surety.


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




                                               -12-
