                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                   July 8, 2010 Session

                                    IN RE: TRISTYN K.

                Appeal from the Chancery Court for Anderson County
                  No. 09CH0427     William E. Lantrip, Chancellor


                No. E2010-00109-COA-R3-PT - FILED JULY 22, 2010




This parental rights termination case was filed by Christopher W. (“Father”) and Sara R.
(“Stepmother”) seeking to terminate the parental rights of Linsie K. (“Mother”) to her
daughter Tristyn K. (“the Child”). Stepmother also seeks to adopt the Child, who currently
is four years old. Following a trial, the Trial Court terminated Mother’s parental rights after
finding various grounds had been proven by clear and convincing evidence and that
termination of Mother’s parental rights was in the Child’s best interest. For the reasons
discussed in this Opinion, we vacate the Trial Court’s judgment finding grounds to terminate
Mother’s parental rights, and we remand this case for further proceedings consistent with this
Opinion.


                Tenn. R. App. P. 3 Appeal as of Right; Judgment of the
                      Chancery Court Vacated; Case Remanded


D. M ICHAEL S WINEY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,
P.J., joined. C HARLES D. S USANO, J R., J., filed a separate opinion concurring in part and
dissenting in part.


Keith Lowe, Knoxville, Tennessee, for the Appellant, Linsie K.


Joseph F. Della-Rodolfa, Knoxville, Tennessee, for the Appellees, Christopher W. and Sara
R.
                                                OPINION

                                               Background

              This parental rights termination case was filed by Father, the Child’s biological
father, and Stepmother seeking to terminate Mother’s parental rights so that Stepmother
could adopt the Child. According to the petition, the Child was born on October 21, 2005,
and Father and Stepmother have had joint legal and physical custody of the Child since
December 5, 2008. As grounds for terminating Mother’s parental rights, Father alleged:

                 (a) [Mother] has abandoned the child by willfully failing to visit
                 or has engaged in only token visitation with the minor child for
                 the four (4) consecutive months immediately preceding the
                 filing of the Petition pursuant to T.C.A. §§ 36-1-113(g)(1) and
                 36-1-102(1)(A)(i). Further, [Mother] was incarcerated for a
                 time prior to the filing of this Petition and willfully failed to visit
                 or engaged in only token visitation for the four (4) consecutive
                 months immediately preceding her incarceration pursuant to
                 T.C.A. §§ 36-1-113(g)(1) and 36-1-102(i)(A)(iv).

                 (b) [Mother] has abandoned the child by failing to support or
                 make reasonable payments toward the support of the child for
                 the four (4) consecutive months immediately preceding the
                 filing of this Petition pursuant to T.C.A. §§ 36-1-113(g)(1) and
                 36-1-102(1)(A)(I). Further, [Mother] was incarcerated for a
                 time prior to the filing of this Petition and willfully failed to
                 support or make reasonable payments toward the support of the
                 child for the four (4) consecutive months immediately preceding
                 her incarceration pursuant to T.C.A. §§ 36-1-113(g)(1) and 36-
                 1-102(1)(A)(iv).1

                 (c) [Mother] is incarcerated at the filing of this Petition; in the
                 event she is released prior to the filing of this Petition, [Mother]
                 was incarcerated during part of the four (4) months immediately
                 preceding the filing of this Petition, and [Mother] has engaged
                 in conduct prior to incarceration which exhibits a wanton


        1
        The Trial Court ultimately found there was insufficient evidence to conclude that Mother had
abandoned the Child either by failing to visit or by failing to pay support. These findings are not at issue on
appeal.

                                                     -2-
               disregard for the welfare of the child pursuant to T.C.A. §§ 36-
               1-113(g)(1) and 36-1-102(1)(A)(iv).2

               (d) That upon the child’s initial removal from [Mother’s]
               custody, the Department of Children’s Services was briefly
               granted custody of the child. The Department generated and had
               approved by the Knox County Juvenile Court a Permanency
               Plan explicitly laying out [Mother’s] responsibilities for return
               of the child to her custody. Further, [Mother] has done nothing
               on the plan such that she is in noncompliance with the statement
               of responsibilities in the plan pursuant to T.C.A. §§ 36-1-
               113(g)(2) and 37-2-403(a)(2)(C).

               (e) That [Mother] has committed severe abuse of the child and
               the child’s [half-sibling] as defined at T.C.A. § 37-1-102(21)(A)
               while the children were in [Mother’s] home pursuant to T.C.A.
               § 36-1-113(g)(4).

               In addition to alleging that grounds existed to terminate Mother’s parental
rights, Father alleged that it was in the Child’s best interest for Mother’s parental rights to
be terminated. Father asserted that he and Stepmother have provided and will continue to
provide a safe and suitable environment for the Child.

                The trial took place on December 9 & 10, 2009. For background purposes
only, we will summarize some of Father’s testimony and that of the DCS representative
called at trial. Father testified that he was 27 years old and has been married to Stepmother
for over 3 years. Father has one other child, a five year old daughter named Antika. Father
has co-parenting time with Antika every weekend. He is current on his child support
payments for Antika.

               Father testified that prior to the Child being removed from Mother’s home,
Mother had told him that he was the biological father of the Child. Father later attempted to
contact Mother so he could begin to establish a relationship with the Child, but Mother
ignored his calls. Father eventually “googled” Mother’s name in hopes of finding her
address, and this is when he learned that she had been arrested for child abuse. Father then
contacted DCS, told DCS that he might be the biological father of the Child, and requested
a paternity test. The DNA test established that Father was the Child’s biological father.


       2
         The ground alleging wanton disregard for the welfare of the Child as a basis for terminating
Mother’s parental rights was nonsuited the morning of the trial.

                                                 -3-
               Father testified that in December of 2008, he and Stepmother were awarded
full custody of the Child and Mother was granted supervised visitation. Father testified that
Mother’s visitation with the Child has been minimal. The order allowing Mother supervised
visitation provides that under no circumstances is the Child allowed to be around Lee Stiles
(“Stiles”), who is the father of the Child’s younger half-brother. Father testified at trial that
Mother continues to live with Stiles. According to Father, as of June 30, 2009, Mother was
in arrears on child support payments in the amount of $5,003.

                Father testified that he has a great relationship with Stepmother and that they
are employed at the Department of Energy in Oak Ridge. They each earn approximately
$42,000 per year. The Child has a good relationship with Stepmother as well as her half-
sister, Antika.

               Father testified that he believes that Mother endangered the Child’s life and
that she has not rehabilitated herself. The Child had some emotional issues when Father first
obtained custody, but they have worked through those and the Child currently is doing
excellent in school and otherwise is doing “great.”

              Ms. Kelly Sanders (“Sanders”) was the only DCS representative to testify at
trial. Sanders testified that on the day the Child and her half-brother were removed from
Mother’s home, she received a call about an emergency situation at Mother’s apartment.
When Sanders arrived at Mother’s apartment, law enforcement personnel were already on
the scene. The Child and her one-year old half-brother were found in a room with a tile
floor, two over-stuffed stuffed animals, and two thin blankets. There was no other furniture
in the room. The room was cold and there was a broken wall heater with exposed wiring
showing. There also was a “sippy-cup” with curdled milk in it. The Child had severe diaper
rash. The door to the room where the children were found had been tied shut. After the
children were removed, Mother was drug tested and tested positive for THC,
benzodiazepines, and cocaine. Stiles tested positive for THC. When asked about the
permanency plan entered into between Mother and DCS, Sanders stated that she was not
involved in that process and the foster care worker would be able to testify about the
permanency plan’s requirements. The foster care worker did not testify.

              Following the trial, the Trial Court announced its decision from the bench. The
Trial Court first determined that insufficient evidence had been presented to terminate
Mother’s parental rights based on abandonment for failing to visit or failing to pay support.
The Trial Court then stated:

                    The Court does find that there was severe negligence and
              abuse as defined by the statute, and specifically, that the

                                               -4-
             conditions under which this child and both children were being
             kept, there was a substantial likelihood of harm. We’ve had
             both the officer and the testimony of the DCS representative
             concerning the conditions that they found. It was just essentially
             a barren room where the children were kept in a manner that the
             Court finds that there was a substantial risk of harm to these
             children and that their physical conditions and the conditions
             described were such that the Court finds that this definition and
             that basis exists by clear and convincing evidence to find a basis
             for termination. In addition, the Court finds that there is a
             persistence of conditions that existed at the time of the removal
             of these children that essentially remains that resulted in
             extraordinary restrictions on any contact that [Mother] had with
             this child; that the visitation allowed was limited and restricted.
             ...

                    There is a failure to complete the permanency plan that
             was established by the Knox County Juvenile Court after the
             expiration of the standard period of time, and I believe that the
             provisions that have not been completed do constitute the
             meaningful treatment and care that would have justified an
             expansion of contact and visitation.

                     So there is a finding by clear and convincing evidence
             that there is a persistence of the conditions, and further, that
             [Mother’s parental rights to two of her other] children have been
             voluntarily surrendered. The testimony by [Mother] that the
             reason for doing this was her acknowledgment that she was
             incapable of providing the necessary care for these children,
             convinced me that there exists clear and convincing evidence
             that termination is in the best interest of this child; that she is
             presently with her natural father and his wife in a home, bonded
             with this family, that they are able and capable of providing an
             appropriate home for this child. . . .

The Trial Court then entered a Final Judgment which incorporated its opinion announced
following the trial.

             Mother appeals raising two issues. First, Mother claims the Trial Court erred
when it found that she had committed severe child abuse. Second, Mother claims the Trial

                                             -5-
Court erred when it found that termination of her parental rights was in the Child’s best
interest.

                                          Discussion

              Our Supreme Court reiterated the standard of review for cases involving
termination of parental rights in In re F.R.R., III, 193 S.W.3d 528 (Tenn. 2006). According
to the Supreme Court:

                      This Court must review findings of fact made by the trial
              court de novo upon the record “accompanied by a presumption
              of the correctness of the finding, unless the preponderance of the
              evidence is otherwise.” Tenn. R. App. P. 13(d). To 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 Valentine, 79 S.W.3d 539, 546
              (Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)). Upon
              reviewing a termination of parental rights, this Court's duty,
              then, is to determine whether the trial court's findings, made
              under a clear and convincing standard, are supported by a
              preponderance of the evidence.

Id. at 530.

              We first address whether grounds to terminate Mother’s parental rights had
been proven. Excluding the ground that was nonsuited and the abandonment grounds that
the Trial Court concluded had not been proven, there were only two remaining grounds
alleged in the Complaint on which to terminate Mother’s parental rights: (1) substantial
noncompliance with the requirements of a permanency plan (see Tenn. Code Ann. § 36-1-
113(g)(2)); and/or (2) Mother committing severe child abuse as defined in Tenn. Code Ann.
§ 37-1-102 (see Tenn. Code Ann. § 36-1-113(g)(4)). We will address each of these grounds.

              With respect to the ground surrounding Mother’s noncompliance with the
requirements in her permanency plan, counsel for Mother stated at oral argument before this
Court that he did not interpret the Trial Court’s judgment as actually finding substantial
noncompliance with a permanency plan as one of the grounds upon which to terminate
Mother’s parental rights. It is for this reason that Mother’s brief does not specifically address
this ground. In our opinion, the language of the Trial Court’s judgment is such that the Trial



                                               -6-
Court did find that Mother failed to substantially comply with her permanency plan.
Accordingly, we will address this issue.

               The only DCS representative to testify at trial was Sanders, who admitted that
she did not prepare Mother’s permanency plan and was not able to testify about its contents.
The permanency plan was not admitted as an exhibit at trial. Although Mother was
questioned about whether she completed counseling and things of that nature, we cannot
ascertain with any certainty if anything Mother allegedly failed to do actually was a
requirement of the permanency plan because we do not have the permanency plan in the
record. Without the permanency plan, we cannot determine exactly what Mother was
required to do under the permanency plan, which in turn prevents us from determining
whether she substantially complied with its requirements.

               Based on the foregoing, we vacate the Trial Court’s finding that Mother failed
to substantially comply with the requirements contained in her permanency plan. On remand,
should Father want to pursue substantial noncompliance as a ground to terminate Mother’s
parental rights, a new hearing must be conducted on this ground and the record must contain
sufficient information in the event of a further appeal. At a minimum, this would include the
actual permanency plan(s). In the absence of an admission by Mother that she failed to
substantially comply, the testimony by an appropriate DCS representative as to exactly which
requirements were not met likely will be necessary.

               The next issue is whether the Trial Court properly terminated Mother’s parental
rights due to her committing severe child abuse. Tenn. Code Ann. § 36-1-113(g)(4) provides
that parental rights can be terminated if that parent is found to have committed severe child
abuse as defined in Tenn. Code Ann. § 37-1-102. As pertinent to this appeal, “severe child
abuse” is defined in Tenn. Code Ann. § 37-1-102(23) as follows:

                 (23) “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 . . . .

                 In its memorandum opinion following trial, the Trial Court stated that Mother
was guilty of:

                 severe negligence and abuse as defined by the statute, and
                 specifically, that the conditions under which this child and both

                                                  -7-
               children were being kept, there was a substantial likelihood of
               harm. . . . [T]he Court finds that there was a substantial risk of
               harm to these children . . . .

                At oral argument, counsel for Father conceded that the standard used by the
Trial Court in its memorandum opinion is different from that required by the statute in order
to terminate parental rights for committing severe child abuse as defined in Tenn. Code Ann.
§ 37-1-102. The Trial Court’s findings on this ground used the term “substantial likelihood
of harm . . .” as opposed to any finding of abuse “likely to cause great bodily harm or
death. . . .” A finding of “substantial likelihood of harm . . .” is not equivalent to the finding
of abuse “likely to cause great bodily harm or death. . . .” Accordingly, we vacate the Trial
Court’s judgment in this regard and remand this case to the Trial Court for a determination
of whether there was clear and convincing evidence to terminate Mother’s parental rights for
committing severe child abuse pursuant to Tenn. Code Ann. § 36-1-113(g)(4) and as defined
in Tenn. Code Ann. § 37-1-102.

               The final issue concerns the Trial Court’s statement that “the Court finds that
there is a persistence of conditions that existed at the time of the removal of these children
that essentially remains . . . .” One of the grounds for terminating parental rights is based on
what is commonly referred to as “persistent conditions” described in Tenn. Code Ann. § 36-
1-113(g)(3), which provides as follows:

               (g)(3) 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:

                      (A) The conditions that led to the child's removal or other
                      conditions that in all reasonable probability would cause
                      the child to be subjected to further abuse or neglect and
                      that, therefore, prevent the child's safe return to the care
                      of the parent(s) or guardian(s), still persist;

                      (B) There is little likelihood that these conditions will be
                      remedied at an early date so that the child can be safely
                      returned to the parent(s) or guardian(s) in the near future;
                      and

                      (C) The continuation of the parent or guardian and child
                      relationship greatly diminishes the child's chances of
                      early integration into a safe, stable and permanent home;

                                               -8-
               Father’s complaint did not allege the presence of “persistent conditions” as one
of the grounds to terminate Mother’s parental rights. A trial court cannot terminate parental
rights based on a ground that is not alleged in the complaint. See M.D. v. R.L.H., No.
E2005-00324-COA-R3-PT, 2005 WL 3115874, at *3 (Tenn. Ct. App. Nov. 22, 2005)(“The
record contains nothing showing that the petition ever was amended to allege any additional
ground upon which to terminate Father’s parental rights. Absent evidence showing that
Father was properly apprised that these additional grounds for terminating his parental rights
were at issue, we must vacate the Juvenile Court’s judgment insofar as it terminates Father’s
parental rights pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and (g)(4)”). Accord, In re:
W.B. IV, No. M2004-00999-COA-R3-PT, 2005 WL 1021618 (Tenn. Ct. App. Apr. 29, 2005),
no appl. perm. appeal filed. Thus, to the extent the Trial Court’s opinion can be read as
finding a “persistence of conditions,” we also vacate that portion of the judgment.

               For the reasons discussed above, we vacate the Trial Court’s judgment finding
grounds upon which to terminate Mother’s parental rights had been sufficiently established.
The issue of whether termination of Mother’s parental rights was in the Child’s best interest
is pretermitted. This case is remanded to the Trial Court for further proceedings consistent
with this Opinion.

                                         Conclusion

               The judgment of the Trial Court finding grounds to terminate Mother’s parental
rights is vacated. This case is remanded to the Anderson County Chancery Court for further
proceedings consistent with this Opinion and for collection of the costs below. Costs on
appeal are taxed to the Appellees, Christopher W. and Sara R., for which execution may
issue, if necessary.




                                                    _________________________________
                                                    D. MICHAEL SWINEY, JUDGE




                                              -9-
