                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE


IN THE MATTER OF:
                                        )
                                        )
                                                                FILED
                                              Davidson County Junvenile Court
S.M.C. and J.L.C.                       )     Nos. 08-06-49 & 9619-24593
                                        )                      June 11, 1999
                                        )     C.A. No. 01A01-9807-JV-00358
                                        )                    Cecil Crowson, Jr.
                                                           Appellate Court Clerk

From the Juvenile Court of Davidson County at Nashville
Honorable Andrew J. Shookhoff, Judge




Thomas H. Miller
Franklin, Tennessee
Attorney for Petitioner/Appellant, David Edward Chaphe, Jr.

J. Michael O’Neil
Nashville, Tennessee
Attorney for Petitioner/Appellant, Sonya Chaphe

Paul G. Summers, Attorney General & Reporter
Douglas Earl Dimond, Assistant Attorney General
Nashville, Tennessee
Attorney for Respondent/Appellee




AFFIRMED




                                                              ALAN E. HIGHERS, J.



CONCUR:

DAVID R. FARMER, J.

HOLLY KIRBY LILLARD, J.
           Respondents David Edward Chaphe, Jr. (“Mr. Chaphe”) and Sonya Chaphe (“Mrs.

Chaphe”) (collectively “Chaphes” or “Appellants”) appeal from the judgement of the

Juvenile Court which terminated the Chaphes’ parental rights to daughter, S.M.C. and son,

J.L.C.



                                     I. Factual and Procedural History



           On March 18, 1996, a petition for temporary custody and emergency removal of

S.M.C. and J.L.C. was filed on behalf of the State of Tennessee Department of Health.1

At that time, S.M.C. was nearing five (5) years of age and J.L.C. was nearing four (4) years

of age. The children were removed from the Chaphes’ home and have been in foster care

continuously since then.



           The petition alleged that Mr. Chaphe had sexually abused S.M.C., that both parents

had physically abused S.M.C. and that both parents had neglected S.M.C. and J.L.C. At

the conclusion of a three day trial, the Juvenile Court referee found that S.M.C. was the

victim of severe child abuse in that Mr. Chaphe had sexually abused her and Mrs. Chaphe

had failed to protect her; that S.M.C. had been physically abused by one or both parents;

that S.M.C. was a neglected child; and that J.L.C. was a dependent and neglected child

because of his parents’ refusal and failure to provide him with a nonviolent environment

in which he can grow and develop.



           On January 21, 1998, the Chaphes requested a de novo hearing before the Juvenile

Court judge pursuant to Tenn. Code Ann. § 37-1-107 and Rule 4(c)(1) of the Tennessee

Rules of Juvenile Procedure. Prior to the rehearing, the State of Tennessee Department

of Children’s Services (“DCS,” “Department,” or “State”) filed a petition to terminate

parental rights. As grounds, DCS cited the severe child abuse of S.M.C., Mr. Chaphe’s

four year sentence for attempted aggravated sexual battery of A.S. (Mrs. Chaphe’s

daughter from an earlier relationship), and the persistence of conditions in the Chaphes’


           1
               The Department of Children’s Services was known as the Department of Health for a brief period
of time.

                                                        2
lives that prevented the children’s return. The Juvenile Court bifurcated its hearing of the

Chaphes’ petitions requesting rehearing of the referee’s findings and its hearing of the

Department’s petition to terminate parental rights, apparently with all parties’ consent. The

Juvenile Court judge first reheard the referee’s findings of severe child abuse as to S.M.C.

and the dependency and neglect as to J.L.C. on July 11, July 14, August 18, September

8 and November 24, 1997.



       On May 13, 1998 the Juvenile Court entered an order sustaining the dependent-

neglected petition and reaching the same conclusion from the proof as had the referee.

This order was not appealed. On May 28, 1998, the Juvenile Court judge heard evidence

going solely towards the termination of the Chaphes’ parental rights. On June 8, 1998 the

Juvenile Court entered a memorandum opinion and order terminating the Chaphes’

parental rights. The judge again found that S.M.C. was the victim of severe child abuse.

The judge found that the Chaphes had received extensive services prior to the children’s

removal, yet the abuse continued. The judge found that both Chaphes denied Mr.

Chaphe’s sexual misconduct toward A.S. despite his guilty plea. Accordingly, the judge

terminated both parents’ rights under the persistence of conditions ground set out at Tenn.

Code Ann. § 36-1-113(g)(B)(A) and the severe child abuse ground set out at Tenn. Code

Ann. § 36-1-113(g)(4). Additionally, the judge terminated Mr. Chaphe’s parental rights

because he had received a sentence greater than two years for conduct found to be

severe child abuse, as set out at Tenn. Code Ann. § 36-1-113(g)(5). This appeal by the

Chaphes followed.



                                  II. Standard of Review



       Parents have a fundamental right to the care, custody and control of their children.

Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). However, this right

is not absolute and parental rights may be terminated upon a finding by the court by clear

and convincing evidence that the grounds for termination of parental rights have been

established and that termination is in the best interests of the child. Tenn. Code Ann. § 36-



                                             3
1-113(c). Clear and convincing evidence is evidence which “eliminates any serious or

substantial doubt concerning the correctness of the conclusion to be drawn from the

evidence.” O’Daniel v. Messier, 905 S.W.2d 182, 186 (Tenn.App. 1995).



       The standard of review on appeal is de novo upon the record with a presumption

of correctness of the trial court’s findings of fact unless the preponderance of evidence is

otherwise. Conclusions of law are reviewed de novo with no presumption of correctness.

T.R.A.P. 13(d).



                              III. Grounds for Termination



       The Juvenile Court terminated the parental rights of the Chaphes based upon

several statutory grounds. The Juvenile Court found that the State established grounds for

termination of parental rights of both parents by clear and convincing evidence pursuant

to Tenn. Code Ann. §§ 36-1-113(g)(3)(A), 36-1-113(g)(4) and, with respect to Mr. Chaphe,

pursuant to § 36-1-113(g)(5). We shall address each of these grounds in turn.



A. Tenn. Code Ann. § 36-1-113(g)(4) as grounds for termination



       In Tennessee, a court may terminate parental rights when:

            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 any sibling or half-sibling of
            such child, or any other child residing temporarily or
            permanently in the home of such parent or guardian;
Tenn. Code Ann. § 36-1-113(g)(4).


       The statute clearly states that the court may terminate parental rights if the parents

were found to have committed severe abuse against the child or child’s sibling under any

prior order of the court. In the case at hand, the Chaphes were found to have committed

severe child abuse in an order entered by the Juvenile Court referee in the dependent and

neglect proceedings. The Chaphes appealed that order and the Juvenile Court judge

                                             4
conducted a de novo hearing, filing an order on May 13, 1998 that affirmed the referee’s

finding of severe child abuse. The Juvenile Court judge specifically found that “S.M.C. is

a victim of severe child abuse as defined in Tenn. Code Ann. § 37-1-102(b)(21) because

the neglect and abuse by her parents has produced developmental delays and emotional

harm which severely impair her ability to function adequately in her environment.”



       A juvenile court order in a dependency and neglect proceeding must be appealed

de novo to the Circuit Court within ten days. Tenn. Code Ann. § 37-1-159(a). The Chaphes

did not appeal the order in the dependent and neglect proceeding to the Circuit Court and

therefore that order has become final and unreviewable in this court. The Chaphes

proceeded directly to the termination hearing on May 28, 1998.



       At the termination hearing, the Juvenile Court judge found the state established

grounds for termination of parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(4).

The existence of the prior court order finding the Chaphes committed severe child abuse

suffices to establish grounds for termination of parental rights under Tenn. Code Ann. §

36-1-113(g)(4). The State is not required to prove severe child abuse again in the

termination proceeding.



       However, the order of termination also contains numerous factual findings which

independently support a finding of severe child abuse by the Chaphes. Severe child abuse

is defined as:

            (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;
            (B) Specific brutality, abuse or neglect towards a child which in
            the opinion of qualified experts has caused or will reasonably
            be expected to produce severe psychosis, severe neurotic
            disorder, severe depression, severe developmental delay or
            retardation, or severe impairment of the child's ability to
            function adequately in the child's environment, and the
            knowing failure to protect a child from such conduct; or
            (C) The commission of any act towards the child prohibited by
            §§ 39-13-502--39-13-504, 39-13-510, 39-13-522, 39-15-302,
            and 39-17-1005 or the knowing failure to protect the child from
            the commission of any such act towards the child;
Tenn. Code Ann. § 37-1-102(21).


                                            5
     The Juvenile Court made the following findings of fact with regard to abuse by the

Chaphes:

                   S.M.C. was observed on numerous occasions
           experiencing disassociative episodes. Based on the expert
           testimony presented, the Court finds that these disassociative
           episodes are a result of S.M.C. having been severely
           psychologically traumatized by conduct or events which she
           experienced.
                   S.M.C. has exhibited highly sexualized behaviors and
           S.M.C. and J.L.C. have both exhibited unusually aggressive
           behaviors.
                   S.M.C. has made statements in day to day activities and
           in therapeutic counseling, the language of which in both nature
           and content is unusual and disturbing. It has included highly
           sexualized themes and vocabulary. It has also included
           themes and vocabulary which are highly aggressive and
           abusive in nature. These statements have sometimes been
           made in the context of play, in which the words and actions of
           the parent characters played by S.M.C. are abusive to the child
           characters.
                   Because S.M.C. is significantly developmentally
           delayed, her retention and incorporation of the unusual and
           disturbing vocabulary and themes into her language and her
           sexualized and aggressive behaviors could not reasonably be
           attributed to isolated, infrequent or inadvertent exposure to
           such language or behavior. The Court can only conclude that
           S.M.C.’s adoption of this vocabulary and the themes of
           sexuality and aggression and her sexualized and aggressive
           behaviors were a direct result of repetitive exposure to such
           language and behavior.
                   With the exception of the two months that S.M.C. spent
           in foster care in 1992, S.M.C. and J.L.C. had been in the
           continuous care and custody of one or both her parents until
           her removal from her parents custody in March of 1996. For
           the two years immediately preceding removal, both children
           were in the continuous care and custody of both parents.
                   The Court can only conclude that the psychologically
           traumatizing events giving rise to the disassociative behavior
           and the exposure to language and conduct giving rise to the
           troubling statements and behaviors occurred in the household
           of the Chaphes.
                   When S.M.C. came into state custody, she exhibited
           highly sexualized behaviors and speech. In play therapy she
           has consistently referred to her father in relation to sexual
           themes. She made explicit statements of sexual abuse by her
           father in spontaneous disclosures to her foster parents and in
           statements to therapists. These statements regarding sexual
           abuse by her father, made over a period of time to different
           people under circumstances and in situations that were not
           unduly suggestive or directive, and viewed in the context of the
           child’s sexualized behavior and language that, in light of her
           developmental delays, could only have come from exposure to
           conduct and language within the household, constitutes clear
           and convincing evidence that S.M.C. was sexually abused by
           her father, David Chaphe.


     The Juvenile Court then made the following conclusions based upon the above


                                          6
findings.

                     The Court finds that the evidence taken as a whole,
              including the language and behavior exhibited by S.M.C., the
              aggressive behaviors that both S.M.C. and J.L.C. exhibited,
              the numerous unusual bruises and marks observed on S.M.C.
              by school officials and others over a period of time prior to the
              children’s removal in 1996, constitute clear and convincing
              evidence that both J.L.C. and S.M.C. were exposed, while in
              their parent’s custody, to a household environment that was
              emotionally abusive and physically abusive and that either both
              parents were perpetrators of this emotional and physical abuse
              or one parent was involved in the abusive conduct and the
              other parent failed to protect the children from the abuse.
                     Based on the expert testimony presented in this case,
              including that of Dr. Potts, the expert witness engaged by the
              respondents, the Court finds S.M.C. to have been a victim of
              severe child abuse as defined in T.C.A. § 37-1-102(b)(21)(B)
              in that she has suffered abuse and neglect by her parents
              which has produced severe developmental delay and severe
              impairment of her ability to function adequately in her
              environment.


       Much of the evidence presented at trial regarded statements made by S.M.C.,

observations of her behaviors, and opinions formed based on those statements and

behaviors. The Chaphes argue that the admission of S.M.C.’s statements was improper

under Rule 803(25) of the Tennessee Rules of Evidence, and the admission of

descriptions of many of her behaviors was improper under State v. Ballard, 855 S.W.2d

557 (Tenn. 1993) and Rule 702 of the Tennessee Rules of Evidence.



       Many statements that S.M.C. made were treated as “disclosures” of physical and

sexual abuse and were admitted into evidence pursuant to Rule 803(25), which provides

a hearsay exception for statements about abuse or neglect by a child alleged to be the

victim of various kinds of abuse or neglect in certain civil proceedings.

             Unless the circumstances indicate lack of trustworthiness,
             statements about abuse or neglect made by a child alleged to
             be the victim of physical, sexual or psychological abuse or
             neglect, offered in a civil action concerning issues of
             dependency and neglect pursuant to Tenn. Code Ann. § 37-1-
             102(b)(10), issues concerning severe child abuse pursuant to
             Tenn. Code Ann. § 37-1-102(b)(19), or issues concerning
             termination of parental rights pursuant to Tenn. Code Ann. §
             37-1-147(d).
Tenn. R. Evid. 803.

The Chaphes argue that the statements should have been excluded pursuant to the Rule

as the circumstances indicated lack of trustworthiness.


                                             7
       The Advisory Commission Comment to Rule 803(25) indicates that in determining

whether the circumstances indicate lack of trustworthiness, courts should consider the

motivation of minor declarants, the motivation by adults to influence children, and the

presence or absence of evidence corroborating the statement. Whether a child’s statement

of sexual abuse is admissible as a hearsay exception is within the discretion of the trial

court. State v. Purcell, 955 S.W.2d 697, 609 (Tenn.App. 1997). The trial court can only be

reversed on a showing of abuse of discretion on questions of admissibility of evidence. Id.



       We do not believe the circumstances in this case indicated a lack of trustworthiness

in S.M.C.’s statements as to her sexual abuse. S.M.C. consistently disclosed that Mr.

Chaphe had sexually abused her to four witnesses: Mrs. Piettro, Ms. Clemons, Ms.

Johnson and Ms. Shanley. Dr. Potts, the Chaphes’ expert, noted that S.M.C. enjoyed

shocking people, but conceded that the record did not suggest any such improper reaction

that might have inadvertently “coached” S.M.C. He also added that S.M.C. was a poor liar

and that if she made the same statements to different people, her statements were

probably credible. We find that the Juvenile Court did not abuse its discretion in allowing

the hearsay statements of sexual abuse.



       The Chaphes also contend that while the court may consider S.M.C.’s behavior as

it has been observed by the witnesses, it must do so within the parameters of State v.

Ballard, 855 S.W.2d 557 (Tenn. 1993) and its progeny. The Tennessee Supreme Court

has held that expert testimony that children exhibit symptoms or characteristics of

posttraumatic stress syndrome should not suffice to confirm the fact of sexual abuse and

that such testimony should be inadmissible. Id. at 561. The Court was especially

concerned about such expert testimony’s prejudicial effect on a jury because of its “aura

of special reliability and trustworthiness.” Id. at 561-62. Under the Court’s reasoning, expert

testimony in criminal trial as to children’s psychological symptoms may not be used to

prove that sexual abuse caused those symptoms. Id.



       From our reading of the record, the witnesses testified to their personal observations



                                              8
of S.M.C.’s behaviors. Appellants have not cited to any particular testimony in the record

which supports their assertion and we cannot find testimony of this nature in the record.

When questioning the expert witnesses, and other witnesses with specialized knowledge

in this matter, the State did not ask the witnesses to ascribe the cause of S.M.C.’s

symptoms to her sexual abuse. From our reading of the record, it appears that the

questions as to whether sexual abuse caused S.M.C.’s behaviors were posed by the

Chaphes’ attorneys on cross examination. Accordingly, we find that the behavior evidence

admitted in this case did not violate Ballard.



       The statements of S.M.C. and behavioral descriptions were properly admitted. The

Juvenile Court found that the Chaphes severely abused S.M.C. Based upon our careful

reading of the record, the evidence presented to the Juvenile Court judge supports the

Juvenile Court’s finding that S.M.C. was the victim of severe child abuse and that either

both parents were perpetrators of such abuse or one parent was involved in the abusive

conduct and the other parent failed to protect her from the abuse. Based upon said

findings of abuse by the Juvenile Court judge and/or the previous unappealed order finding

the Chaphes guilty of child abuse, we find that the grounds for removal set forth in Tenn.

Code Ann. § 36-1-113(g)(4) were met. The language of said statute also supports removal

of any sibling or half-sibling of such child from the home upon such a finding.



B. Tenn. Code Ann. § 36-1-113(g)(3)(A) as grounds for termination



       The Juvenile Court also found that grounds for termination were met under Tenn.

Code Ann. § 36-1-113(g)(3)(A). This subsection of the statute allows termination when

there is clear and convincing evidence that:

              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 safe 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 safely
              returned to the parent(s) or guardian(s) in the near future; and

                                               9
                    (iii) 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.


      In finding that termination was proper pursuant to this subsection, the Juvenile

Court made the following findings:

                     Mr. and Mrs. Chaphe received extensive services and
             interventions prior to the neglect and abuse charges which
             resulted in the removal of J.L.C. and S.M.C. in 1996. The fact
             that child neglect and abuse continued to occur in the Chaphe
             household despite these extensive services compels the Court
             to find that the Chaphes’ parenting deficits are so severe that
             there are no services that can be provided at this point to allow
             these parents to resume responsibility for raising these
             children, especially in light of the fact that neither Mr. Chaphe
             nor Mrs. Chaphe have acknowledged any responsibility for
             parental misconduct.
                     Mr. Chaphe, despite his guilty plea and conviction,
             denies ever committing the offense to which he pled guilty and
             of which he was found guilty beyond a reasonable doubt. In
             evaluating Mr. Chaphe’s credibility as a witness, the Court is
             faced with testimony by Mr. Chaphe in a civil proceeding that
             contradicts a finding to the contrary beyond a reasonable
             doubt in a criminal proceeding. This Court is bound, as a
             matter of law, by the criminal court conviction.
                     The inconsistency between Mr. Chaphe’s guilty plea in
             criminal court and his testimony in Juvenile Court, at a
             minimum, makes it difficult for the Court to give any significant
             credence to his testimony.
                     Although she hesitated when asked about her
             husband’s guilty plea, Mrs. Chaphe testified that she does not
             believe that Mr. Chaphe was guilty of any sexual misconduct
             towards A.S. Mrs. Chaphe has inextricably linked her position
             to that of Mr. Chaphe. And her credibility thus suffers when his
             credibility is effectively challenged.
                     The state has established grounds for termination of
             parental rights by clear and convincing evidence, pursuant to
             T.C.A. § 36-1-113(g)(3)(A). The conditions which led to the
             removal - the parenting deficits which resulted in physical,
             emotional and sexual abuse - still persist. Parental unfitness
             was initially established by the Juvenile Court proceedings in
             1992 and the criminal court proceedings in 1993. Despite
             extensive and intensive services provided to the family,
             abusive and neglectful conduct recurred. Given the failure of
             past intervention efforts and the inability of the parents to
             acknowledge their misconduct and recognize the impact of the
             misconduct on their children, there is little likelihood that these
             conditions of parental unfitness will be remedied in the
             foreseeable future.



      The Chaphes argue that without the improperly admitted hearsay and behavior

evidence, the court would have no basis for finding persistence of dangerous conditions.

As discussed above, we find that the evidence complained of by the Chaphes was properly


                                            10
admitted and therefore this argument must fail. Furthermore, as will be discussed more

fully in the following section, Mr. Chaphe pled guilty to attempted aggravated sexual battery

of A.S. in 1992. Despite that plea, the Chaphes continue to adamantly deny that Mr.

Chaphe sexually abused either A.S. or S.M.C. The Chaphes’ denial prevents them from

remedying the danger of sexual abuse posed to the children by Mr. Chaphe. Accordingly,

we find that the Juvenile Court did not err in finding clear and convincing evidence existed

to terminate parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(3)(A).



C. Tenn. Code Ann. § 36-1-113(g)(5) as grounds for termination



       The Chaphes’ court involvement dates back to 1992 when Mrs. Chaphe’s daughter

from a previous relationship, A.S., was found by the court to be a dependent and neglected

child. The allegations of abuse and neglect which were the subject of the 1992 Juvenile

Court proceeding, also gave rise to Criminal Court proceedings against both parents. On

September 3, 1993, Mr. Chaphe pled guilty to attempted aggravated sexual battery for

which he received a four year sentence. Mrs. Chaphe pled guilty to child abuse and neglect

and received a sentence of 11 months and 29 days probation.



       In the termination proceeding at issue, the Juvenile Court found the 1993 conviction

of Mr. Chaphe to be grounds for termination under Tenn. Code Ann. § 36-1-113(g)(5). This

subsection allows termination of parental rights upon clear and convincing evidence that:

            The parent or guardian has been sentenced to more than two
            (2) years' imprisonment for conduct against the child who is the
            subject of the petition, or for conduct against any sibling or
            half-sibling of the child or any other child residing temporarily
            or permanently in the home of such parent or guardian, which
            has been found under any prior order of a court or which is
            found by the court hearing the petition to be severe child
            abuse, as defined in § 37-1-102(b)(19).
Tenn. Code Ann. § 36-1-113(g)(5).


       Appellants argue that neither the Juvenile Court nor any prior court has found that

Mr. Chaphe‘s conduct in that case constituted severe child abuse. They contend that

without such a finding, Mr. Chaphe’s conduct in the 1993 case would qualify as “severe

child abuse” only if it is one of the offenses enumerated in Tenn. Code Ann. § 37-1-

                                             11
102(b)(21)(C).2 Under this subsection, child abuse includes the commission of any of

several enumerated offenses or the knowing failure to protect the child from the

commission of such act towards the child.



         While aggravated sexual battery is one of the enumerated offenses which

constitutes severe child abuse, attempted aggravated sexual battery is not. However, the

fact that the Juvenile Court found Mr. Chaphe’s prior conviction to be grounds for

termination under Tenn. Code Ann. § 36-1-113(g)(5), may indicate an implicit finding by

the Juvenile Court that the attempted aggravated sexual battery was “severe child abuse.”



         Based upon our affirmance of the other two grounds for termination, it is not

imperative that we decide this issue and we respectfully decline.3 It is sufficient that the

termination of parental rights rested on one or both of the aforementioned grounds.



         In conclusion, we find that there existed clear and convincing evidence to terminate

the parental rights of the Chaphes pursuant to the grounds enumerated in Tenn. Code

Ann. § 36-1-113(g)(4) and Tenn. Code Ann. § 36-1-113(g)(3)(A).



                      IV. Efforts to Reunite Mrs. Chaphe with her Children



         Mrs. Chaphe contends that reasonable efforts were not made to reunite her with her

children. She contends that the DCS policy is not to provide such services to the parents

after a finding of severe abuse. Mrs. Chaphe argues that the State failed to meet its federal

and state obligation to the parents to make reasonable efforts to reunite the family.



         The record contains testimony of a DCS worker who testified to extensive services


         2
          W hile Tenn . Code A nn. § 36-1-113(g)(4) tells us the term “severe child abuse” is defined in § 37-1-
102(b)(19), subsection (19) contains the definition of the term “protective supervision.” “Severe child abuse”
is defined in § 37-1-1 02(b)(2 1).

         3
          Add itiona lly, the issue wa s only briefly add ressed by the parties in their briefs to this Cou rt. No par ty
devoted more than two paragraphs to the issue . The sta te conten ds that the attem pt to com mit a sex ual cr ime
against a child qualifies as a knowing failure to protect the child from the crime. As we do not need to address
this issue to up hold t he te rm inatio n, we will leav e this issue to be mo re fu lly litigate d in an appropriate case
in the future.

                                                          12
provided to the Chaphes to assist them in complying with their plans of care. While there

was testimony that the Chaphes substantially complied with the plans, the DCS worker

explained that the finding of severe child abuse was the impediment to the children being

placed back in the home. Under current federal law, with which Tennessee must comply

to remain eligible for federal assistance, no reasonable efforts need be made when the

parent has subjected the child to aggravated circumstances under state law that would

include severe child abuse and sexual abuse. 42 U.S.C. § 671(15)(D)(I).



       The record does not support Mrs. Chaphe’s claim that reasonable efforts were not

made to reunite Mrs. Chaphe with her children. Furthermore, the record shows that,

despite Mr. Chaphe’s guilty plea, Mrs. Chaphe continues to deny that Mr. Chaphe was

guilty of any sexual abuse, no matter what efforts DCS made. The Juvenile Court judge

concluded that “the Chaphes’ parenting deficits are so severe that there are no services

that can be provided at this point.” We find that reasonable efforts have been made in this

case, beginning in 1992 when A.S. was removed from the Chaphe home.



                            V. Best Interests of the Children



       Having found that grounds for termination of parental rights have been established

by clear and convincing evidence, a court may terminate parental rights upon a finding that

termination is in the best interests of the child. The Juvenile Court found that termination

was in the best interests of the Chaphe children, stating as follows:

                      In this particular case, neither Mr. Chaphe or Mrs.
              Chaphe has been able to acknowledge responsibility for the
              abuse and neglect of these two children. Extensive services
              have been provided to the family over a long period of time,
              none of which have allowed the family to gain insights into their
              own behavior in order to either acknowledge their behavior or
              change the behavior. There is simply no way to reconcile the
              findings that the Court has made based on the overwhelming
              testimony presented by the Department of Children’s Services
              and the continued denial of wrong doing by the parents.
                      In light of this impasse, there is no prospect of the
              children being returned to their parents and the only means for
              them to achieve permanency is through termination of parental
              rights and adoption. It is therefore the finding of this Court that
              it is in the children’s best interest to grant this termination
              petition.

                                             13
       The Chaphes contend that in its consideration of best interest, the Juvenile Court

looked only at Mr. Chaphe’s failure to acknowledge responsibility for the abuse and neglect

of these two children. The Chaphes argue that there is no legal basis for the proposition

that a child cannot be returned to a home if there has been abuse or neglect and the

parents do not acknowledge their acts.



       While we can find no authority specifically directing that a child may not be returned

to a home unless the parents acknowledge the abuse, such a factor may certainly be

considered in evaluating the best interest of the child. This Court recently relied on this

same factor in the best interests determination in Farmer v. Dept. of Children’s Services,

No. 01A01-9610-JV-00485, 1997 WL 803709 (Tenn.App. Dec. 30, 1997).

              Because Mrs. Estes continued to deny the childrens’ problems
              and her role therein, because she was unable to recognize
              indicators of abuse and thus protect her children; because the
              children thrived in foster care and because only after
              termination could the children be adopted into a nurturing
              environment, the Juvenile Court correctly concluded that
              termination of parental rights was in the childrens’ best
              interest.
Id. at *9.



       The Juvenile Court correctly found by clear and convincing evidence that both J.L.C.

and S.M.C. were exposed, while in the Chaphes’ custody, to a household environment that

was emotionally abuse and physically abusive; that S.M.C. was the victim of severe child

abuse; and that S.M.C. was sexually abused by her father, Mr. Chaphe. The record shows

that the children have improved developmentally, emotionally, and behaviorally since their

removal from the Chaphe home. Based upon the findings of severe abuse, sexual abuse,

and neglect; the fact that the Chaphes continue to deny the abuse; the improvement in the

children since the removal from the Chaphe home; and the finding that the only means for

the children to achieve permanency is through termination of parental rights and adoption,

we hold that the Juvenile Court was correct in finding that termination of parental rights was

in the best interest of the children.



                            VI. Termination of Parental Rights

                                             14
       This Court finds that clear and convincing evidence demonstrates that the Juvenile

Court correctly terminated the parental rights of Mr. and Mrs. Chaphe under the provisions

of Tenn. Code Ann. § 36-1-113(g)(4) and § 36-1-113(g)(3)(A) and equally demonstrates

that such termination is in the best interests of the children, S.M.C. and J.L.C.




                                     VII. Conclusion



              The judgment of the trial court is hereby affirmed. Costs of this appeal are

taxed to Appellants, for which execution may issue if necessary.




                                                        HIGHERS, J.



CONCUR:




FARMER, J.




LILLARD, J.




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