In Re: Sierra D.M.

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs December 14, 2011

IN RE: SIERRA D.M., ET AL.

Appeal from the Juvenile Court for Johnson City

No. 37,923; 37,924 Sharon Green, Judge

No. E2011-01663-COA-R3-PT-FILED-JANUARY 25, 2012

The State of Tennessee Department of Children’s Services (“DCS”)1 filed a petition seeking

to terminate the parental rights of Susan M.M. (“Mother”) and Mark M. (“Father”)2 to the

minor children Sierra D.M. (“Sierra”) and Hunter Z.M. (“Hunter”) (or collectively “the

Children”) pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and (g)(3). After a trial, the

Juvenile Court3 entered its order on August 17, 2011 finding and holding, inter alia, that

clear and convincing evidence existed to terminate Mother’s parental rights to the Children

under Tenn. Code Ann. §§ 36-1-113(g)(1) and (g)(3), and that clear and convincing evidence

existed that the termination of Mother’s parental rights was in the Children’s best interest.

Mother appeals to this Court. We affirm.

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

Case Remanded

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,

P.J., and J OHN W. M CC LARTY, J., joined.

Holly L. Booksh, Johnson City, Tennessee, for the appellant, Susan M.M.

Robert E. Cooper, Jr., Attorney General and Reporter; Bill E. Young, Solicitor General; and

Lindsey O. Appiah, Assistant Attorney General, for the appellee, State of Tennessee

1

The Children’s guardian ad litem, Russell Kloosterman, filed the petition and was joined by DCS.

For purposes of simplicity only, we refer to DCS as the petitioner.

2

Father surrendered his parental rights to the Children on May 23, 2011. The time to revoke the

surrender has passed, and Father did not make an appearance in this appeal.

3

The case was filed originally in the Juvenile Court for Hamblen County, but later was transferred

to the Juvenile Court for Johnson City.

Department of Children’s Services.

Russell J. Kloosterman, Johnson City, Tennessee, Guardian Ad Litem.

OPINION

Background

The Children were brought into State custody in October of 2003 and were

adjudicated dependent and neglected. The Children have remained in State custody since

that time. Sierra was five years old and Hunter was twenty-two months old when they were

taken into State custody. The petition seeking to terminate Mother’s parental rights was filed

on July 20, 2010. The case was tried over several days in May and July of 2011. At the time

of trial Sierra was thirteen years old, and Hunter was nine years old.

Mother testified at trial. In addition to the Children, Mother has two adult

children. When asked, Mother admitted that the Juvenile Court judge had explained the

definition of abandonment, and the criteria and procedure for terminating parental rights to

her “[q]uite a few times.”

Mother graduated from ETSU in 2009. Mother has two bachelor’s degrees,

one in criminal justice and one in sociology. Mother, however, is not working and has not

worked since 2005 when she was in school. Mother stated that she “worked at Save-A-Lot

Grocery Store for a few months, and then started school, and then I also did some student

worker loans on campus.” The student work was done through a work-study program at

ETSU during July and August of 2005. Mother has not worked since 2005. Prior to 2005,

Mother had worked in Morristown through a temporary agency working in a factory.

When asked, Mother admitted that she has not obtained full time employment.

When asked what types of jobs her college degrees qualify her for, Mother stated: “There’s

quite a few. I could become a police officer, a counselor, a therapist, a corrections officer

in a prison. There’s numerous.” When asked where she has looked for work, Mother stated:

I have, I’m registered with the Career Center. I have my resume posted on-line

on a few of the Monster.com, Yahoo Jobs, places like that.… I am also

registered with, with the Johnson City Press on-line to receive, if they, if a job

that, that meets what I’m looking for, I get emails regarding those.

Mother admitted that she had not tried to obtain employment with the sheriff’s department.

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Mother also admitted that she had done nothing to look for a job during the three weeks

immediately preceding the trial. Mother could not recall looking for work during the four

month period preceding the filing of the petition. Mother has college loans of approximately

$40,000 that she testified are deferred while she is unemployed.

When asked how she supports herself, Mother stated: “I donate plasma, and

I’ve received help from family members.” Mother testified that she smokes about a pack of

cigarettes a day. She testified that the cigarettes cost approximately $3 per pack. Mother

also admitted that a few months prior to trial she treated her adult daughter by taking her to

a country music concert, and that the concert tickets cost around $15 a piece.

Mother claimed that she was involved in a car accident on July 24, 2010, but

did not go to the hospital. She explained: “My treatment was delayed because there was

problems with, to get confirmation from the witness as to whether the other guy’s insurance

company would pay. So treatment was delayed. I did go after that was approved. I went to

Dr. Sam Messimer, chiropractor.” Mother claimed that Dr. Messimer wrote her a note

stating that she could not work, but also stated that Dr. Messimer later released her from

treatment in November of 2010. Mother also claimed that she received first and second

degree burns on her left arm from popping hamburger grease on July 4, 2010, and that she

had to keep her arm covered.

Mother admitted that she is healthy. When asked about disabilities she stated:

“Other than from the car accident, I sometimes still have, you know, problems with my neck

and my back.… From, from that accident, but….”

Mother admitted that she received a settlement from the car accident. When

asked why she had not mentioned this money when she was asked about her income, Mother

stated: “That settlement was months ago, so that wouldn’t be considered income.” When

asked the amount of the settlement, Mother stated: “I can’t remember an exact amount.”

Mother then was asked the approximate amount of the settlement and Mother stated: “I’m

not sure because I had, out of that settlement I had to pay doctor bills.” When pressed for an

answer, Mother stated: “I can’t remember right off.… When things happened, you know,

months ago, I can’t remember the exact amount or approximate amount.” Mother finally

admitted that the settlement was over $10,000, but stated that the settlement was less than

$20,000.

Mother was ordered in 2004 or 2005 to pay child support of $90 per child for

Sierra and Hunter by the Hamblen County Juvenile Court. The Juvenile Court for Johnson

City also ordered Mother to pay child support in the same amount in October of 2009 when

the case was transferred. Mother testified that she was able to pay this child support

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consistently when she was a student at ETSU. Mother testified that between March 20, 2010

and July 20, 2010, the four month period preceding the filing of the petition, she paid

“[a]pproximately $20.00” in child support. Mother, however, admitted that she did not give

DCS anything for the children between March 20, 2010 and July 20, 2010.

When asked if she had paid any child support for Sierra or Hunter since the

petition was filed on July 20, 2010, Mother stated that she had receipts for “[a]dditional gas

that I had to put in my vehicle in order to go to Georgia and back home to see Sierra, food

that we might eat on our visits with Sierra and with Hunter. Additional things that I had

gotten for the kids, you know, for our visits.… And there have been, on one trip to Georgia

Sierra needed some socks, and so I bought her socks.” Since July 20, 2010 Mother has not

given any money or other support to the foster parents for Hunter.

Mother was asked why Sierra and Hunter were removed from her custody in

October of 2003. Mother testified:

Because I was involved with a person at the time, he, and allegations were

made against him from my friend’s daughter of a sexual manner, and because

he was staying at the apartment with the children and I. I assume that they

thought it put the children at risk. And unfortunately at that time, you know,

I did make some bad decisions and believed him over my friend’s daughter.

Once it was established that he was guilty of what he was being accused of, I

cut all ties.

The Children have had three trial home placements with Mother while they

have been in State custody. The first trial home placement occurred in February or March

of 2004. The Children were with Mother for approximately one week. Mother testified that

the children were returned to DCS custody “[b]ecause I was getting evicted, and they said

that Sierra had made a statement about seeing the man that I had been involved with earlier.”

The second trial home placement was in June of 2007, and lasted thirty-one

days. When Mother was asked why the Children were removed from her custody that time,

she stated:

Because of an incident that happened at Food Lion. Sierra’s behavior got out

of control. She wanted, she wanted something, and when she was told no, she

did have a tantrum, and I now know that I handled it the wrong way at that

time. I now know that there are different ways to handle it now.… She started

throwing a fit, throwing a temper tantrum, and I started to walk away. I was

trying to pay for what I was purchasing, and she plopped down on the floor

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and threw her arms around the buggy, scratching her arms and legs, and I

couldn’t get her out. I had to call a friend to come and help me. So he was

able to turn her legs to where I could slide her out from underneath the buggy.

He completed my purchase, and I took Sierra and carried her out to the car,

trying to get her in her seatbelt in her booster seat. And she kept, kept holding

her arms out and I couldn’t get her in her seatbelt.… She did end up with a cut

lip.

Mother was asked how Sierra wound up with a cut lip and she stated: “I don’t know how that

happened.” During the incident Mother called 911. When asked why she had called 911,

Mother stated:

Because I had made numerous phone calls to the case manager in Morristown.

This happened, this happened on a Saturday. I had made numerous calls to the

caseworker to, to try to get some advice or assistance. I had also made phone

calls to my attorney at the time in Morristown and the guardian ad litem in

Morristown and wasn’t able to get a hold of anyone.

Mother denied that the cut lip and scratched legs that Sierra sustained from the incident were

the result of Mother’s actions. Mother testified that Sierra lies a lot.

The third and final trial home placement was in March of 2009. Mother was

asked if she was given any instructions by the Juvenile Court prior to that visit and she stated:

“No physical restraints, no corporal punishment.” The Children were in Mother’s custody

thirty-one days, and then were removed according to Mother because “Sierra was throwing

another temper tantrum, and she made allegations that I ‘child abused her.’” Mother was

asked what actions led to that allegation and she testified:

The actions that contributed to that was that I had placed her in her room, and

was sitting at the door. When I came out of the room, she was laying on her

back, kicking the door, trying to, until I put my foot up against (Inaudible) and

at one point she hit and kicked and slapped me approximately 30 times. At

that point I spanked her on the bottom.

Mother was asked what else occurred and she stated:

During the time that she was throwing a fit, I was on the phone with the in

home service worker, trying to get some kind of assistance. I was able, and at

that point Sierra had calmed down, and then when my dad got there, she

crawled up under Hunter’s bed. He was able to, he just talked to her to get her

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out from under the bed.

Mother admitted that the incident involved a power struggle over a Lego. Mother stated: “I

was in the process of trying to get the kids to go to bed and there was some defiance there

and yes, but since that time, you know, I have, I know that there are other ways that it could

have been handled.”

Mother was asked what she has done since that time to demonstrate that she

can effectively use appropriate discipline techniques, and she stated:

I graduated from ETSU, and the last two semesters that I was in school, I took

some classes that would help me with the children. Child psychology and

adolescent psychology, and through those classes I had learned other

techniques, or others [sic] avenues to handle those types of situations. I have

also been in individual therapy for over a year. I was still participating in that

with Sierra while she was at Inner Harbor. Our communication has, we are

able to talk more openly, and I have a better understanding of, and a better way

of communicating with her about any type of problems that may arise.

When asked about the techniques she has learned, Mother stated: “The ones

about rewards and consequences, timing myself or even myself taking a time out, and

removing myself from situations or something like that, redirecting and, of course, you know,

just talking about whatever the problem might be.” Mother testified that she has had

parenting skills training with counseling “[q]uite a few times” since the children have been

in State custody.

Mother was asked about appropriate discipline techniques for the Children, and

she stated: “Talking with them about what’s causing the situation, offering rewards and

giving them consequences, taking things away from them, time out, grounding them.” When

asked at what age corporal punishment would be appropriate, Mother replied: “I am not

really sure. I mean, corporal punishment should only be used as the last resort. If then.”

When Mother was asked what type of corporal punishment would be appropriate, she stated:

“A swat on their, you know, their bottom. On their hand.” When Mother was asked when

it would be appropriate to use corporal punishment as opposed to other disciplinary

techniques, Mother stated: “I would think if the other things didn’t work. Like I said, as a

last resort if offering rewards or taking away privileges or sending them to their room or

things like that didn’t work, then as a very last resort.” Mother admitted that she probably

recently has used corporal punishment on her two year old granddaughter by slapping the

child’s hand. When asked if she had tried other remedies before resorting to this punishment,

Mother stated: “I can’t recall.”

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Mother testified that she never has been faced with a situation when she would

need to use corporal punishment on Hunter. When asked about corporal punishment with

regard to Sierra, Mother stated that “a lot has changed since corporal punishment was last

thought of with, in regards to Sierra. And I have learned different ways of handling things

when the children would not do as they were asked to do. I have learned different ways to

handle that.” When Mother was asked if she could perceive a time when corporal

punishment would be appropriate on Sierra, Mother stated: “No, not right now because like

I said, I, you know, I know there are other ways that we can communicate and work through

things, but I don’t foresee anything like that coming up.”

Mother admitted that during the trial home placements Sierra became defiant,

acted out, and had temper tantrums. Mother was asked if she had seen any of these behaviors

since Sierra has been at the placement center and she stated: “I haven’t seen any of these

behaviors personally. I have learned about issues that have happened at the center when I

am not around, but I have never, never seen any of these personally.”

Mother testified that she visits with Hunter every week, and with Sierra every

two weeks. Mother was asked if Hunter has been having behavioral issues, and she testified:

He has been having some over the past few weeks where he was, at one point

he had taken some matches from a place at the apartment, and apparently he

was striking the matches at the foster home, and burned a few places in her

carpet. Yeah, and then one incident where he had turned the stove on and put

some napkins in it or something and caused a small fire. And I talked with

him about that, and I suggested that, and I told Amy that, I talked with Hunter

about this and how detrimental a fire [c]an be, and I suggested that maybe I

could call the Fire Department to see if they had some type of educational

videos that were, you know, graphic in order to get Hunter to understand just

how devastating a fire can be. And I am still waiting to hear back from them

on that. I’ve called.

Sierra now is receiving individual therapy from Alicia Hatcher. Sierra had

been receiving therapy from Jason Stevens. When asked, Mother admitted that she had a role

in Sierra having to change therapists from Stevens to Hatcher. Mother stated:

Because I had started to develop feelings for her therapist, Mr. Stevens, and

I disclosed them, with Sierra out of the room. So she was not in the room. I

let him know about that, and of course, he recused himself or stepped down,

and Ms. Hatcher became her therapist again.

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Mother was asked if she had asked Sierra to find out if her therapist was married and Mother

replied: “I did not ask her to ask him. I just made a comment that I wondered if he had a

girlfriend or a wife and she asked him.” When asked if she thought it was appropriate to

pursue a relationship with Sierra’s therapist given Sierra’s issues and the fact that Sierra is

struggling and hurting, Mother replied: “There was never any pursuing, or, or any, I never

acted upon any of those feelings that I had.… I told him that I was, was developing feelings,

but as far as acting upon them by opening flirting or making inappropriate comments to him

or anything like that, I’ve never anything like that and nothing.”

When asked if any of her own actions have contributed to Sierra’s problems

or behaviors, Mother stated:

In the past, there have been some actions, like the last trial home placement,

you know, there was a disruption. Yes, I could have handled things a lot

differently, and I think that did contribute to her being defiant and throwing

temper tantrums. If I would have handled it differently, I am sure that the

outcome would have been different.

Mother was asked specifically about her own actions that may have contributed to Sierra’s

temper tantrum during the last trial home placement, and she stated: “Probably my

unwillingness to cooperate, to compromise because, and not knowing the proper way to, we

could have talked things out instead of, you know, that blown up portion that we did.”

Mother testified that the multiple parenting classes and counseling that she has

received have not been effective for her. Mother believes that the adolescent psychology

class that she took at ETSU was more effective

[b]ecause during that, during that class, I was actually able to remember things

that were, what I had gone through when I was her age and into puberty, you

know, being 15, a teenager, you know. I was able to remember. And I

understand a little bit more of what Sierra was going through.

The Children had therapy together in the past, but there were issues with Sierra

being aggressive toward Hunter. Mother addressed these issues by telling Sierra that Hunter

was younger and smaller than her “and, you know, that she wouldn’t like it and everything,

you know, if he did it to her, or someone did it to her.” When asked if this was effective,

Mother replied: “No, I don’t think.” Mother admitted that Sierra and Hunter have a bad

relationship with one another.

Mother admitted that Sierra has some major problems including violence and

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sexual acting out. When asked about the cause of Sierra’s acting out, Mother stated:

behaviorally, or, in my opinion is that there, here are numerous things that

contribute to her acting out. Being in foster care for over seven years. She’s

also going through puberty and had to go through a lot of changes. I think

that, and you know, it’s, it’s a confusing time for her.

Mother was asked to compare how she would handle things now if the

Children were returned to her versus how she handled things in the past, and she stated:

When they were removed from the, from the trial home pass I didn’t really

know a lot of different ways to handle difficult scenarios such as Sierra getting

up in the morning to get ready for school or things like that and now I do, I do

know those, you know, I mean, I have learned other ways of handling.

Mother was asked how she would get Sierra up in the morning now, and she

stated:

Try to get her up. If, if it was sort of a problem with any, you know, with her

getting up in the mornings to go to school, you know, she would go to bed

earlier the next, you know, the next night. Taking away, maybe offer her a

reward and everything that, you know, we would sit down and discuss, you

know, and find out something that she would really, really like to do or

something that she would like that she could work towards and maybe discuss

with her about, you know, if, if, if you didn’t start getting up in the mornings

and doing your morning routine and getting things together and getting to

school on time on a regular basis and everything, then maybe on the weekend

we can do this or something. Have, you know, short term, not really short

term, things that she could look forward to on the weekend and everything if

she got up and went to school.

Mother was asked how she had handled such situations in the past, and she

stated:

Back then I was trying to get her up out of bed. She refused to get up and I

started taking away things, a lot of, you know, different things that she had like

she’s got an alarm clock and a digital, and she’s got a camera and her cell

phone and a lot of different things so I remember one time she had probably

lost maybe about ten things and it didn’t help. She was still refusing to get up.

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When it was pointed out that the techniques that Mother claimed she would use now were

the same ones that she had used unsuccessfully in the past, Mother stated: “A lot has changed

with Sierra, too. She has gotten older and things that she’s learned on how to handle, handle

things in her therapy along with things that I’ve learned I think both of us combined would

be much better.”

Mother has been in individual therapy since August of 2009. Mother’s

therapist is Polly Yarling. Mother was asked what types of things she has identified during

therapy with regard to her own actions that may have contributed to Sierra’s behaviors and

Mother stated: “I can’t recall.” Mother testified that she has had two psychological

evaluations, one done in 2002 and one in 2006. When asked what the diagnoses of the

evaluations were Mother stated: “I can’t remember. I don’t have that with me.” Mother

admitted that she has a copy of the 2002 evaluation, but stated that she did not provide a copy

of the evaluation to her current therapist and could not recall if she had provided a copy to

any of her past therapists. Mother could not recall discussing the 2002 evaluation with her

therapist. She stated: “This is before the children were brought into custody and before the

incident between Sierra and [Sierra’s older sister]. So I didn’t feel that it was relevant.”

Mother did provide her therapist with a copy of the more recent evaluation, but could not

remember discussing it with the therapist.

Mother participated in two parenting assessments done by Compass Care

Alliance in the year prior to trial. The first of those assessments never was completed and

Mother testified this was because the person conducting the assessment left the employment

of Compass Care Alliance. Dr. Angelopoulos completed the second parenting assessment.

Mother read from Dr. Angelopoulos’s parenting assessment and testified that it made

recommendations such as:

Completing anger management program. Participate in all recommended

metal health treatment if indicated via an intake process with a qualified

mental health professional. Parent training sessions including an ongoing

group designed to provide support and strengthen newly developed skills.

Obtain and maintain full time employment. Spend time focused and directed

time with Hunter in order to facilitate a proper bond between them and

participate with behavior analyst or other qualified individual in behavior

management skills to lean to better handle Sierra’s specific, special behavioral

health needs. Indicates that it may benefit for parenting education and number

8 is specialized assessment regarding her sexual beliefs and behaviors as it

relates to the children.

Mother testified that she has addressed “quite a few of these.” Mother testified that she

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completed an anger management program in the past, but has not completed one since the

parenting assessment was done. When asked if she thought that she has an anger

management problem, Mother stated: “No.” When asked if she was paranoid, Mother stated:

“No, I’m not paranoid except, depending on the situation. I wouldn’t say it was paranoia.”

Polly Yarling is a licensed clinical social worker whom the parties stipulated

is an expert in the field of child and family development, and family therapy. Ms. Yarling

had treated Mother since August of 2009. She sees Mother for individual therapy every two

weeks and, at the time of trial, had seen Mother a total of forty-one times. Ms. Yarling

diagnosed Mother with a personality disorder not otherwise specified with narcissistic traits.

Ms. Yarling diagnosed that Mother is functioning at a moderate level in her daily life. Ms.

Yarling testified that personality disorders are “pervasive and, and they’re pretty much

always there with somebody.” She further stated that such a disorder rarely changes, and

“[l]ike only in 5% of the cases.” Ms. Yarling testified that Mother has been making

“[m]inimal progress” in therapy.

Ms. Yarling testified that Mother provided her with a copy of the evaluation

done on Mother in 2006, but refused to provide Ms. Yarling with one the done in 2002. Ms.

Yarling stated:

I asked her for the evaluations on September 30th of ’09 and she told me that

2002 isn’t relevant to the case because it pertains to the custody of her older

daughter. She told me she would bring the 2006, which she did at the next

session. I asked her again about the 2002 eval and she said it was none of their

business.

Ms. Yarling testified that it would have been helpful in her diagnosis and treatment of

Mother to have the 2002 evaluation.

Ms. Yarling testified that the goal of Mother’s therapy “has been to address the

stipulations that were listed in essence for her to get her children back, so we were addressing

her history of, her role in the placement, the disruptions, communication within the family,

parenting.” When asked if Mother had made progress toward the goal, Ms. Yarling stated:

“According to what [Mother] tells me I feel that there has been some progress towards those

goals.” Ms. Yarling stated, however, that she does not see Mother with the Children, and

must rely upon what Mother reports about how she is handling situations. Ms. Yarling has

some concerns about whether Mother is being completely truthful in her reports,

based on [Mother’s] diagnosis because it would be consistent with her

diagnosis to maybe have some insight but not be able to actually put it into

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practice and then I also had some concerns because outside of therapy I’ve

heard from talking to other people that are involved in the case situations that

seem to be in contrast to what she’s telling me.

Ms. Yarling testified about what Mother related regarding why the Children

were in custody stating:

Okay, she told me that on October 29th of ’03 that her boyfriend was living

with her and that her best friend’s fourteen year old daughter, I hope I’ve got

that right, alleged sexual abuse against her boyfriend. She said he was in jail

but DCS removed the kids anyway. She said that he plea bargained, but she

ended the relationship with him.… And then she told me the first trial home

placement was disrupted in March of ’04 after one week. She said that Sierra

said she saw mom’s boyfriend, but [Mother] claimed that he wasn’t staying at

the house. Let’s see. She also mentioned something about Barb Pruitt, a

caseworker in Morristown tried to sabotage the case in ’06. I’m not exactly

sure what the details are on that. At the second trial home placement in June

of ’07 she said it was disrupted on the 31st day. She said that Sierra threw a

tantrum in the store. She clamped her feet on the grocery cart. She said she

called her friend Jim to come and help her. He got Sierra out of the cart.

[Mother] held her and carried her out to the car. Once in the car Sierra was

kicking so [Mother] called the police to get her settled down. The police

noticed Sierra’s mouth was bleeding and asked mom if she hit Sierra in the

mouth. And then the third trial home placement was, let’s see, in March of ’09

she said on the second day Sierra became oppositional. She mentioned that a

Holston in-home worker was supposed to be on call 24/7 and that [Mother]

had to call her several times for help. She said later this was used against her.

On April 30th she said that there was a safety plan made with the caseworker

and spanking was only to be used as a last resort. Apparently there was an

argument between Hunter and Sierra. [Mother] carried Sierra because she was

kicking the door and then [Mother] spanked her and Sierra bruised and she

blamed the bruising on the medication that Sierra was on, Klonopin.

Ms. Yarling was asked if Mother’s position with regard to the reasons for

custody and the failed home placements has changed since she’s been in therapy with Ms.

Yarling, and Ms. Yarling testified:

No. There, it’s always, she has always pretty much blamed it, you know, on

other people. I do have to say out of fairness that at our last session she did

bring up the incident at Food Lion.… And now told me that she thought that

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it was silly that she made an issue out of that and that she would do things

differently, you know, if she had to do it over again.… Which is really the

first time that I’ve ever heard her come close to saying, you know, I might

have had a part in this.

When asked if Mother had accepted any responsibility for the Children being

in the custody of the State in foster care, Ms. Yarling stated: “No, as far as I remember she’s

pretty much blamed that on DCS.” When asked if Mother had demonstrated any insight into

problem areas that contribute to her inability to parent, Ms. Yarling testified:

Minimal, I would say, as far as insight into sort of her personality and how she

approaches things. I have seen a little bit more humility. She seems to have

maybe softened a little bit, not as abrasive as she was when she first started

seeing me. Not as quick to jump, I should say she probably still has the

tendency to jump, but is doing a little better at managing her, her reactions.

Ms. Yarling was asked for her opinion regarding Mother’s ability to parent the

Children in stressful situations, and she testified:

I do have concerns about that. Just based on some things that I’ve heard other

people tell me that [Mother] hasn’t particularly shared that, those incidents

with me. I have concerns that the changes that she’s made are so new and

fresh that, and she’s only implementing them on, say a weekly or biweekly

basis when she’s visiting with the kids. I have concerns about whether or not

she would be able to maintain that, if the kids come home and they were with

her all the time.

When asked if she had observed anything recently that gave her concern about

Mother’s ability to parent, Ms. Yarling stated:

I observed in the sense of hearing, she was on a phone call with me when her

granddaughter was, she and her, her daughter and her granddaughter were

staying with her for a couple of weeks and I was talking with her on the phone

and I could hear a little one in the background and at one point [Mother] just

kind of sharply rebuked her, you know, in terms of get away from my

computer, kind of real harsh like that. And then shortly after that she came to

see me and she mentioned that the, she wasn’t getting much sleep because the

granddaughter wasn’t sleeping, being out of her own environment and she told

me that she mentioned to her daughter we just need to get in the car and, and

go away from housing so nobody can hear us so that we can spank her and

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make her go to sleep. And I thought that that was kind of over the edge as far

as what you would do to get a two year old to go to sleep.

This phone call occurred just a few months before the trial.

Lamont Douglas is a child and youth therapist employed by Frontier Health

whom the parties stipulated as an expert in counseling and child therapy. Mr. Douglas has

worked with both Children. At the time of trial, Mr. Douglas was working with Hunter. Mr.

Douglas had not worked with Sierra since she went into a residential program, approximately

one year earlier.

Mr. Douglas was asked why the Children were in therapy with him. He

testified it was because they were in foster care and had “[a] lot of issues related to anger,

anger outbursts, especially toward each other. Also some inappropriate sexual contact

between the two children that had been observed by some of the foster parents ….” Mr.

Douglas testified that Hunter and Sierra have one of the worst sibling relationships that he

has ever worked with.

With regard to therapy prior to Sierra being moved, Mr. Douglas stated:

In sessions I was able to engage them in some play therapy, game therapy. We

were actually getting to the point of where we had a fairly civilized concourse

without either one of them trying to go across the table towards each other,

which was actually significant because for awhile there they would almost,

invariably if you put them together more than five or ten minutes and they

were almost at each other’s throats so that, we were starting to make some

progress towards that. Of course that also required a lot of prompting and a

lot of intervening with the therapist during that, but that was a significant

improvement. And that was starting to happen right before she went into the

residential.… We were beginning to get some progress. I wouldn’t say that

they had really made significant, but we were starting to get a little bit of

progress.

Mr. Douglas testified that Hunter has expressed a fear of Mother. Sierra also

had expressed to Mr. Douglas a fear of Mother. Mr. Douglas testified that Hunter also is

afraid of Sierra. Mr. Douglas testified:

There was a lot of physical altercations between the two of them [Sierra and

Hunter]. A lot of physical violence between the two of them, not just the

typical fighting, which we typically have. I mean, when they were in foster

-14-

care, the same foster care house, I mean it was almost knock out drag outs, is

the way that it was reported to me. So there is a physical component to it.

Like I said, there was some indications previously of some either sexual

reactivity or sexual acting out, especially with Sierra towards Hunter, so that

could possibly also add into, to that.

When asked what Hunter says about Mother, Mr. Douglas testified:

Typically very vague. I’m looking for some recent examples. Like the last

time I saw him was on 6/30 and he indicated that he had gone fishing with his

mother. He says that he didn’t enjoy himself at that time. When asked why he

didn’t enjoy himself he would not say, but 6/22 he was asked just how he felt

about how things were going with mom and he refused to answer and

continued to change the subject any time that was asked. I was just asking him

for feeling, not asking him for specifics or anything of that nature. 6/16 I saw

him and he stated he had talked with mother recently and was wanting to visit

her, but not live with her. He stated that he could no longer be around his

sister at all and when asked why he felt he did not want to live with his mother

he would not answer and would change the subject every time, and that’s

pretty typical. He’ll give a tiny little blurb here and there, but most of the time

after that he shuts down pretty quickly and he will not continue on and like I

said, I’m not asking for specifics, just trying to get feelings, just trying to do

that and that’s something that he’s typically made sure that he does not share

or, or backs away from as soon as he does say something.… I can go through

all of these, but that’s very, very common. I was looking back a little bit

further because there’s a different focus on those. On 3/2, this is a note, I think

that stated that he had gotten some good, or got some rewards for some

behavior choices that he had done in school. He felt as though his foster

mother was very proud of him and knowing that was good for him. Was asked

about biological mother. He didn’t say anything, was accepted. He was glad

she was all right, but did not want to live with her. On 2/24 he made the

statement, he stated that he does not, that he wants to see his biological mother

sometimes, but not trust or feel safe with her. Would not say why he did not

feel safe with his biological mother.

Hunter has been diagnosed with ADHD and is oppositional defiant. Mr.

Douglas testified that parenting him will take a lot of work and stated:

a lot of outside support to be able to really help with that, especially with the

behavior that we’ve seen and especially with some of the safety issues that

-15-

we’ve seen with Hunter, with the potential of violence that he’s had previously

and then also with the fire setting recent, most recently.

When asked if there was a possible correlation between Hunter acting out and his visits with

Mother, Mr. Douglas testified: “It did seem to have a, a correlation between more of his

defiant behavior and more of the fire setting after the visits then, or within a day or two of

the visits.”

When asked his opinion about reuniting Hunter and Mother, Mr. Douglas

testified:

No, if he were to start out with the therapy with mom and that were really

being effective and then really building up the trust and getting the fear out of

what’s, whatever his fear is. Like I said, I don’t know, he has never really

expressed it. Never really has told me what it is but has mentioned it several

times, so I’m not sure what, like I said, I don’t know if that’s something that

is based on more fact or based on just his perception, but either way until we

get to that and can get past that, him being able to trust again is going to be

very difficult, especially with his mom.… He’s still afraid, yeah, and that’s

key. He’s still afraid. And that potentially has the danger of coming out in

anger or coming out in other different things and especially with like the safety

issues we’ve seen.… I would really fear that he would possibly do something

based on, like I said, that fear. Whether or not it be real or imagined, it doesn’t

matter.

Mr. Douglas testified that Hunter has been in his current foster home for “at

least a year and a half, two years.” When asked how Hunter is doing there, Mr. Douglas

testified:

He does very well with her. He has, he respects her. At different times he has

said to me, said to the foster mother in front of me that he wanted her to adopt

him and wanted, and calls her mom in front of me and often times I have

clarified with him who is talking about.… I think he feels, feels secure there.

I think as much as he can at this point. The reason I say that, I think there’s,

any time there’s this ambiguity of what will happen, where he’s going to be,

what may happen, who is he going to be with, then that’s going to affect any

child when you have those questions, when they want to know where am I

going to be next school year? Where am I going to be next week? Where am

I going to be, all of these different questions. But taking that into account I

would say he is doing very well.

-16-

Mr. Douglas testified that Hunter has asked the foster mother in Mr. Douglas’s presence

when she is going to adopt him.

When asked if it would be better for Hunter to have a permanent home sooner

rather than later, Mr. Douglas testified:

Absolutely. Absolutely, because I think that would help him stabilize and

really get over a lot of these other issues that I’m trying to work with him on.

A lot of these issues keep coming up and one of the reasons why I still see him

for the most part weekly is because of that uncertainty. And I put that as one

of the driving factors and there’s not much that I can do therapeutically except

try and give him some more coping skills and reassurance until we can actually

get something that’s permanently set by DCS and the Court.

Amy Evans is a child and family specialist, or case manager, with Holston

Home for Children. Ms. Evans began supervising visitations in this case in October of 2010.

She supervised one visit with Sierra on Thanksgiving Day, but her primary focus is Hunter

because he is placed with her agency. Ms. Evans testified:

Generally the visits go well. I mean there are a few instances where the visit

could have gone better, but in general the visits have been going well.

[Mother] for the most part is appropriate with Hunter. They’re affectionate

with one another. We’ve done some work on talking about inappropriate

things in front of Hunter and that has gotten better. I, I know last time I

testified in Court I had mentioned that [Mother] has lost her temper in several

visits. That’s improved mostly, but there have still been a couple of instances

where she has kind of snapped at Hunter and one instance in a visit where we

were at Fun Expedition and she snapped at him and he got his feelings hurt

and he went and hid from us, which I think is, I was, I was concerned with it.

Ms. Evans further testified:

[Mother], especially when I sort of first took over and throughout the spring

of last year she would talk about maybe sexually inappropriate things in front

of Hunter that I, I thought, and not necessarily like her own exploits, but did

mention a few things in front of him that I probably would have kept from an

eight year child, and, and just, it, when Hunter’s behaviors are a little bit more

challenging I think she has kind of trouble maintaining in visits.… Holding

onto her own temper. Well, probably not temper, but she gets more frustrated,

which is, I mean, which is understandable in a lot of situations, but it, [Mother]

-17-

does well with having like activities and food and she has often used rewards,

but, and it seems like she does that a lot better when Hunter is very calm, but

when he’s kind of acting out it’s almost like she forgets to, to use those tools

that she has developed.… She gets flustered and will yell at him or say, you

know, things repeatedly instead of, you know, sit down, sit down, sit down, sit

down instead of, you know, if you sit down then we’ll be able to do this, but

she is, she is good at, you know, the beginning of the visit she’ll say, well, I’ve

got this special treat, but she doesn’t always say I have this special treat, so it’s

kind of inconsistent, if that makes sense.

Ms. Evans was asked what kinds of things trigger Mother’s frustrations, and

she stated:

we have kind of a power struggle over eating sometimes, which with an eight

or nine year old you would kind of expect. He would rather play a video game

than eat his dinner. When he doesn’t sit still and he, you know, wanders in the

other room, that sort of thing, she gets frustrated.

Ms. Evans testified: “I have seen her snap at him several times and I’ve seen her cuss in front

of him, but not necessarily to him, which I think is good.”

Ms. Evans testified:

[Mother] did say in a visit at one point that she had to spank her

[granddaughter] and she didn’t necessarily say it in that, well, she said bust her

the slang word for bottom.… Bust her ass is what she said, in the visit while

we were sitting at a table with Hunter present.

With regard specifically to inappropriate comments made in front of Hunter, Ms. Evans

testified:

There was a visit where we were eating chicken fingers for, for a snack and

she proceeded to tell me a long story about how she had found a chicken finger

in one of her packages of frozen chicken fingers that looked like a penis and

she took pictures of it and put it on the Internet and, or on her Twitter account

I think she said. Not necessarily the Internet and, and all of this in front of

Hunter and Hunter became interested in what she was, in the subject matter.

There was an incident where she had talked about going to meet a, or going to

see a county music star and she met him and she asked him if it was okay if

she molested him a little bit and then she grabbed his butt and she said this in

-18-

front of Hunter, …. She has shown me pictures of a man’s hind end that she

took pictures of in front of Hunter.

Lisa Shifflett, Director of Family Services at Holston Home for Children,

testified at trial. Beginning in August of 2010, Ms. Shifflett began doing family therapy with

Mother and Hunter. Ms. Shifflett did about four months of therapy with Mother and Hunter.

Ms. Shifflett explained that the therapy was scheduled for every other week, and that they

met about eight times in total.

Ms. Shifflett testified about the therapy stating:

Initially we had set a goal of discussing [Mother’s] role with Hunter and what

brought the children into care as well as why they have remained in care for

so long. During the sessions we did activities and facilitated discussions and

just different things to try to help them process that together and it was my

understanding from DCS and from other recommendations that that was the

focus of what our treatment needed to be at that point, so through all of that we

ended up terminating, I want to say it was December or January. No, the end

of December, beginning of January … 2010.… And the primary reason for

that was that we weren’t able to meet the goal that we had originally set.

There was not an accountability of [Mother] accepting her responsibility and

the role of why the kids came in or why they remained in and without that it

was, I was unable to help Hunter and her process together those events because

of that, so ….

When asked if the goal of the therapy was explained to Mother and what her

response was, Ms. Shifflett stated:

The response in general in the beginning and then throughout was usually a

justification or, I mean a reason why the kids were brought in, but not her role

in it, if that makes sense. There wasn’t, she wasn’t at a point, I don’t think,

individually to be able to take responsibility or accept her role, so ….

Ms. Shifflett usually met with Mother and Hunter together, but there were

times when Ms. Shifflett met with Mother alone. Ms. Shifflett testified that Mother primarily

blamed DCS and the court system for the children coming into custody.

Ms. Shifflett described a session when Mother became upset stating:

We had done an activity where they were identifying things for different

-19-

feelings and [Mother] had identified, it was either angry or sad when DCS had

taken the kids away from her and that sparked a conversation because at that

point Hunter started asking questions and it never dawned on me until then

because he didn’t realize he had been taken away from her. He always had his

first set of foster parents in his mind as far as who he, who he had been taken

away from. That’s where his earliest memories are at, so, and I think as any

mother, I mean, [Mother] was upset by that because Hunter had that confusion

as to who his actual mother was, so …. Well, he has always called her mom

but he didn’t realize as far as biological mom and that’s who he was born to

and taken away from. He didn’t realize that and I, well, it’s as simple as that.

Ms. Shifflett testified: “I guess from a clinical standpoint my biggest concern

is that if there’s no accountability or acceptance of the responsibility of her role of what

brought the children in or have kept them in this long, then there’s just a significantly higher

risk of those same things reoccurring again.” Ms. Shifflett did not think that it was in

Hunter’s best interest to be returned to Mother’s custody in the near future.

Alisa Hatcher is a lead therapist at Youth Villages, Inner Harbor. Ms. Hatcher

has been Sierra’s therapist since Sierra was moved to Youth Villages in the summer of 2010,

with the exception of a brief period during the fall when Sierra saw another therapist. Ms.

Hatcher testified:

Sierra is here because she has trouble with behavioral concerns regarding

aggression, primarily with aggression. She has had several different issues

along the way that have also been part of that issue. Aggression towards

others. She has had some issues with self harming in the past. That hasn’t

been something that we have seen her with recently. Aggression to others has

primarily been one of the issues she has dealt with throughout her entire

treatment since last summer. Dealing with how she handles authority figures

is a large part of her treatment. Acceptance of responsibility for her part in

conflicts, those kind of issues, primarily being at 5th level of care, just the

intensity of our residential treatment center is due to the level of aggression

that she has displayed.

Sierra has been diagnosed with bipolar disorder, attention deficit hyperactivity

disorder, and oppositional defiant disorder, among other things. Ms. Hatcher testified that

Sierra is functioning at a fairly low level and stated:

You would expect to see someone at her age much higher and that is in large

part due to the amount of aggression and conflict in her interaction with adults

-20-

as well as with peers of her own age and her ability in, in the school

environment for a child of her age.

Ms. Hatcher testified:

Overall [Sierra] is compliant with her medications. Occasionally she will have

a day and it usually only lasts for a short period but where, when she is asked

to do something, morning routines are difficult for her and she will refuse to

get out of bed, which is also at a time when she is expected to take her

medication. Usually that’s the only time that she will refuse them, but it is not

about not wanting to take medications. This is about defiance, presentation of

herself, but usually turns it around and is able to get, get her meds and move

on with her day at this point.… There, there are times where she ends up

becoming aggressive. She misses school and play activities because she will

continue to refuse to get out of bed.

With regard to the family therapy, Ms. Hatcher testified:

Last summer [Mother] was not here very often at all. I don’t recall that we

were able to have her here until the fall when Sierra had moved to the Douglas

Center and her therapist at that time had worked with them to be able to have

[Mother] come to the campus. I recall that we talked on the phone at that,

when she first came here. And her, Sierra’s responses with [Mother] were

very out of routine, what I would expect from a child is very, very guarded,

kind of protective about her behavior. Didn’t want to say too much, but didn’t

want to be called out on too much either. And then in the fall [Mother] was

here. Jason Stevens was the therapist at the time and he was following her

case up until December when Sierra, I believe December is when they started

having therapeutic leaves away from the campus, where they were allowed to

have some time there. And around that same time, in December time is when

her behavior started to escalate significantly. Very conflicted about issues

across the board and into the beginning of the year. Once I started working

with her again in January [Mother] has been attending therapy consistently

since that time every other week. She has been here and Sierra’s improvement

with family therapy since then has been that she is in the sessions and she is

able to attend more of the off campus therapeutic leave that they have. She

does still struggle to do that and that’s one of the issues that we have been

working on there to try to help her responding to limits and being able to

accept those types of things because she still tests limits quite frequently.

-21-

Ms. Hatcher testified that they are in the process of trying to help Sierra

transition into a foster home and stated:

At this point our recommendation is that [Sierra] goes to a home with no other

children because of the sexual behavior problems that Sierra has had in the

past, which have been up into this year, in 2011, there have been issues and

concerns there with her behaviors that continue to make that something that

would not be recommended and it would require extensive safety planning.

In addition to the sexual behavior problems that she has displayed she also

struggles greatly with peer conflicts and because some of Sierra’s behaviors

and the thinking patterns that are behind her behaviors are so extensive and

have required so much work we really want to have her make a slow transition

process where she is working only with adults on accepting responsibility and

being able to accept feedback or limits from adults without having to have the

influence of other children in the home with her at that point upon leaving

here, because that has been something she has struggled with.

Ms. Hatcher does not believe that reuniting Sierra with Mother is in Sierra’s

best interest. Ms. Hatcher expressed concerns about Sierra’s safety if Sierra were returned

to Mother. Ms. Hatcher agreed that Sierra needs a very, very strong parent figure, and Ms.

Hatcher stated that Mother is not that type of parent “at this time.” When asked if she could

foresee Mother becoming this type of parent, Ms. Hatcher stated: “No, not without some

fairly extensive training for her.”

Carolyn L. (“Foster Mother”) is Hunter’s foster mother and has been for

approximately a year and a half. She and her adult son live with Hunter. Foster Mother

testified:

Hunter is doing great now. He has a couple of issue we’re working on, but

when he came to me he was about non-functional.… [H]e never slept, he, he

couldn’t concentrate. He threw fits and cleaned my house out.… You know,

take a dozen eggs and throw them in the floor and throw all my vases on the

floor, clothes and scream and curse me and call me all, but I’ve worked hard,

really hard.

When asked how Hunter behaves now, Foster Mother stated: “Oh, he’s, he’s a sweetheart

now. I mean, he has a couple of, a couple of things. A child is a child, you know.”

Foster Mother testified that she had a lot of problems with Hunter stealing and

lying and at the beginning of the previous school year he had been suspended from school

-22-

twice for a total of fifteen days. One of those suspensions was for starting fights on the

school bus and cursing at the bus driver.

Foster Mother testified that she is working hard with Hunter and stated: “I

think I’m making progress.” She further stated: “he has come a long ways, a long ways.”

Foster Mother testified that she loves Hunter, and stated there is “[n]o doubt in my mind” that

he loves her. Foster Mother wants to adopt Hunter.

After the trial, the Trial Court entered its very detailed order on August 17,

2011 finding and holding, inter alia:

6. The mother, [Mother], failed to pay a reasonable amount of child support

for the children between March 20, 2010 and July 20, 2010, the four months

immediately preceding the filing of the Petition;

7. The mother, [Mother], paid a total of $20.00 ($10.00 for each child) in child

support between March 20, 2010 and July 20, 2010, the four months

immediately preceding the filing of the Petition;

8. The mother, [Mother], was aware of her court-ordered obligation to pay

child support;

9. The mother, [Mother], did not provide any other material support for the

children to either the foster parents or DCS between March 20, 2010 and July

20, 2010;

10. Although the mother, [Mother], testified that she was in an automobile

accident on July 24, 2010, there is no credible evidence that she was injured

to the extent that she could not work. Her testimony to the contrary is not

credible.

11. Although the mother, [Mother], may have been burned with grease on July

4, 2010, there is no credible evidence that she was injured to the extent that she

could not work. Her testimony to the contrary is not credible;

12. There was no credible evidence that the mother was ill, injured or

incarcerated between March 20, 2010 and July 20, 2010 which would have

prevented her from working;

13. The mother, [Mother], donates plasma and receives financial assistance

from her family in order to support herself;

14. The mother smokes a pack of cigarettes per day and, according to her

testimony, her cigarettes cost $ 3.00 per pack;

15. The Court computes simple math for 30 days a month at $3.00 per pack

and finds that the mother’s cigarette smoking costs her approximately $90.00

per month;

16. While the mother had money for cigarettes, she only allocated $20.00 in

-23-

child support for the four months between March 20, 2010 and July 20, 2010;

17. The mother did not recall looking for employment during the four months

preceding the filing of the Petition;

18. The children have been in the custody of DCS since October 31, 2003,

(over seven and one-half years) with the exception of three trial home

placements, none of which was successful and the longest of which was

approximately five weeks;

19. The Hamblen County Juvenile Court found, by clear and convincing

evidence, as evidenced by the certified copy of its Order which was filed as an

exhibit in this cause, that the child, [Sierra] was in bed with the mother and her

boyfriend, [Scotty H.] when the two adults had sex;

20. The Hamblen County Juvenile Court found, by clear and convincing

evidence, as evidenced by the certified copy of its Order which was filed as an

exhibit in this cause, that the child, [Sierra] was sexually abused by a half-

sister when the half-sister had stuck a Barbie doll arm up Sierra’s anus

resulting in a an [sic] anal tear;

21. The Hamblen County Juvenile Court found, by clear and convincing

evidence, as evidenced by the certified copy of its Order which was filed as an

exhibit in this cause, that [Scotty H.] was charged with the sexual battery of a

fourteen year old babysitter and, that the mother, [Mother], continued to live

with him;

22. The Hamblen County Juvenile Court found, by clear and convincing

evidence, as evidenced by the certified copy of its Order which was filed as an

exhibit in this cause, that there were previous referrals on the mother’s home

for lack of supervision of these children and that DCS had provided services;

23. The mother, [Mother], has been in therapy with Polly Yarling, a licensed

clinical social worker, since 2009 and has had at least 41 sessions with the

therapist;

24. Polly Yarling, as stipulated by all parties, is an expert in the field of family

therapy and child development;

25. Polly Yarling’s licensure authorizes her to perform psychological

evaluations and her review of a diagnosis from a previous evaluation finding

that the mother, [Mother], has a personality disorder, not otherwise specified,

with narcissistic traits is consistent with her observations of the mother in

therapy. In her opinion a personality disorder is a pervasive condition and

rarely changes;

26. Since the removal of the children in 2003, there have been instances of

physical violence towards the children, particularly Sierra, during the failed

trial home placements;

27. The first trial home placement (2004) ended after approximately one week

-24-

when the mother was evicted and Sierra made a statement about seeing [Scotty

H.], the man the mother had been involved with earlier;

28. During the second trial home placement, the child [Sierra], had a bloody

mouth as a result of an incident involving the mother and the child at a grocery

store. The incident was the precipitating cause of the termination of the

second trial home placement which had begun on June 6, 2007, and ended on

July 10, 2007;

29. The third and final trial home placement began on March 31, 2009, and

ended on May 1, 2009. The third trial home placement ended as the result of

the mother’s use of corporal punishment on the child [Sierra], directly contrary

to the Order of this Court for her to refrain from inflicting corporal punishment

on the child. The mother blamed the child’s bruising on the child’s

medication;

30. The mother’s corporal punishment of the child was evidenced by visible

hand prints on the child’s legs which were caused by the mother;

31. [Mother] has not accepted any responsibility for the removal of the

children from her care and custody or the termination of the trial home

placements to her therapist over 41 sessions with the exception of one session

on June 27, 2011, when she told her therapist that she would handle the

incident differently;

32. [Mother] does not show any insight to the children’s current situation and

she has consistently blamed DCS for the children’s conditions;

33. The mother’s therapist has concerns about the mother’s ability to parent

the children. She would not recommend placing the children with their mother

within the next six months, possibly within the next year;

34. In the therapist’s opinion, [Mother] has made minimal progress in

identifying her problems which contribute to the current situation;

35. The mother’s therapist overheard [Mother] sharply rebuke a little child in

the background to “get away from my computer” when she was speaking to

[Mother] on the telephone in April, 2011. The little child was believed to be

[Mother’s] two year old granddaughter;

36. The mother told her therapist that she was not getting much sleep and that

she and the child’s mother needed to put the toddler in the car and get away

from housing so that no one would hear them spanking the child;

37. The therapist testified that the [Mother’s] overall progress in nearly two

years of therapy was minimal;

38. The child, [Hunter], has been diagnosed with attention deficit disorder and

oppositional defiant disorder by his therapist, Lamont Douglas, who is a child

and youth therapist recognized by the Court as an expert in this field.

39. While Lamont Douglas was treating both children, there were anger

-25-

outbursts between the children and inappropriate sexual contact between the

two children. At one point during the therapy the child, [Hunter], was setting

fires in the foster home;

40. [Hunter] does not talk about his mother to his therapist, and when his

therapist asks the child about his mother, he just typically shuts down;

41. [Hunter] has consistently told his therapist since 2008 that he does not feel

safe with his mother. The therapist could not testify whether the child’s fear

was based on fact or fiction, but did testify that the child’s fear was still a fear.

The therapist believes that the child is afraid of his mother;

42. [Hunter] has told his therapist that he would like to see his mother but that

he does not want to live with her;

43. Mr. Douglas opined that it would require exceptional parenting skills to

parent a child with Hunter’s mental health diagnosis and behavior issues;

44. Mr. Douglas testified that the child has repeatedly stated that he wants his

foster mother to adopt him. He has asked the foster mother in Mr. Douglas’

presence when she was going to adopt him. The child calls his foster mother

“Mom;”

45. In Mr. Douglas’ opinion, permanency is in Hunter’s best interests and

when he obtains a permanent home, his condition will most likely stabilize;

46. Mr. Douglas opined that there appeared to be a correlation between

Hunter’s negative behaviors and visits with his mother, [Mother];

47. [Sierra] disclosed similar concerns about having a fear of her mother to

Mr. Douglas when he was treating both children. Sierra made statements to

him concerning the physical altercation between her and her mother at the time

of the third (and final) trial home placement;

48. In Mr. Douglas’ opinion, the two children have a bad sibling relationship,

one of the worst sibling relationships he has ever worked with. Hunter is

afraid of Sierra. There had been a lot of physical violence between the two

children, “almost knock-down drag-outs.” There were reports of Sierra

sexually acting out toward Hunter in a foster home, resulting in the separation

of the children;

49. Mr. Douglas expressed concern if the mother said that she was going to

take a child away from possible observation by others for the purpose of

spanking the child;

50. The mother, [Mother] had discussed sexually inappropriate topics in front

of Hunter last spring, when Hunter was eight years old. She had said, while

eating chicken fingers, that she had found one that looked like a penis, that she

took a picture of it, and that she put it on her Twitter account. She had said

that she met a country music star, asked him if she could molest him a little,

and grabbed his butt. She showed the therapeutic supervisor a picture of a

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man’s bottom. All of these actions occurred in the presence of Hunter;

51. [Mother] acknowledged that she had spanked her two year old

granddaughter. Her actual statement was “I busted her ass;”

52. The mother has supervised visitation with the child, Hunter. The

therapeutic supervisor provides feedback to the mother and the mother has

been responsive on several occasions. During some of the visits, the

therapeutic supervisor has to prod to get the child and his mother to interact;

53. [Mother] is usually appropriate with Hunter during the supervised visits

and has gotten better about not talking about inappropriate topics;

54. When Hunter’s behaviors are a little out of control during a supervised

visitation, the mother gets frustrated. She “forgets to use the tools she has

learned” to redirect Hunter’s behavior. She loses her temper. She gets into a

power struggle with the child over eating. She has cursed in front of the child,

and has snapped at him.

55. Family therapy between Hunter and his mother occurred bi-weekly for

four months beginning in August, 2010. The family therapy was terminated

because the mother did not accept responsibility for why the children were in

foster care and had no accountability;

56. From a clinical standpoint, according to the family therapist, if there is no

accountability by the mother about why the children are not in her custody,

there is an increased risk of abuse or neglect of the children occurring again;

57. In the opinion of the family therapist, reunification between the child and

mother was not in his best interests;

58. The child, [Sierra] has a diagnosis of bipolar disorder, not otherwise

specified; oppositional defiant disorder, and attention deficit hyperactivity

disorder. She displays signs of reactive attachment disorder;

59. When Sierra arrived at her residential treatment facility, she was a “very

troubled, damaged child;”

60. Although Sierra’s behaviors have improved, she still has a long way to go

in controlling her behavior and minimizing conflict in challenging adult

authority, in her therapist’s opinion;

61. When Sierra started having off-campus visitation with her mother in

December, 2010, her negative behavior increased;

62. Parenting [Sierra] will be exceptionally challenging;

63. It would not be appropriate to place Sierra in a home with other children,

because of her sexual behaviors and because she struggles with significant

peer conflict;

64. It is not in Sierra’s best interests to be reunited in the home with her

mother. Although their rapport is positive, structuring their reunification in a

safe setting is her therapist’s concern. According to Sierra’s therapist, six

-27-

months of intense therapy with the mother working on setting limits and

providing an environment with rules that are socially appropriate may not be

enough time to accomplish this goal;

65. Sierra’s therapist, Ms. Hatcher, opined that the [sic] Sierra will need a

very, very strong parental figure and her mother is not that person;

66. In Sierra’s therapist’s opinion, the stability of an adoptive home would be

ideal for Sierra. She would not recommend the return of Sierra to her mother;

67. Sierra has expressed to her therapist mixed feeling[s] about adoption and

returning to live with her mother;

68. In her therapist’s opinion, if Sierra’s mother was the cause of the abuse in

her life and her mother was removed from her life, Sierra would progress;

69. Despite seven years of individual counseling for the mother and both

children, family counseling, psychological assessments, parenting assessments,

parenting classes and in-home services, it is likely that in all reasonable

probability both of the children would be subjected to further neglect and/or

abuse by the mother should they be returned to her care and custody;

70. Due to the length of time and the extensive services already provided,

there is little likelihood that these conditions will be remedied so that the

children could be returned to [Mother] in the near future;

71. The child, [Hunter], is doing well in his foster home, the foster mother

testified that “he is a sweetheart now;”

72. When [Hunter] was placed in the foster home he was about non-

functional. He would not sleep, he had fits, he was disruptive, he cursed, he

stole and lied;

73. The foster mother testified that she would like to adopt Hunter should he

become available for adoption;

74. Hunter has stated numerous times that he wants to be adopted;

75. [Mother] has not made an adjustment of her circumstances, conduct or

conditions despite years of assistance by the Department of Children’s

Services and other providers;

76. It is unlikely that [Mother] will be able to make an adjustment in her

circumstances in the near future;

77. The only indication that [Mother] is even starting to recognize her role in

these circumstances was her testimony that “I could have handled the

situations differently.” This is an inadequate movement towards an adjustment

in conduct and conditions;

78. There is “some” positive relationship between the mother, [Mother], and

the child, [Sierra], according to Sierra’s therapist. Sierra, according to her

therapist, views her relationship with her mother as someone she spends time

with, but as not who she lives with. They have not developed the relationship

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such that they could live together. The relationship that Sierra and her mother

have with each other is not interpreted by the Court to be a meaningful parent-

child relationship;

79. There is not a meaningful relationship between the mother [Mother] and

the child [Hunter]. Until very recently he did not even realize that he had been

removed from her home. When he returns to his foster home from supervised

visits with his mother, he clings to his foster mother;

80. [Hunter] is well integrated into his foster home. His behaviors in the foster

home and school have improved dramatically over the last year although there

have been negative behaviors, too. His foster mother expressed her love for

the child. She is very bonded with the child. His foster mother has met the

child’s educational needs. She is committed to the child. A change in care[-

]givers and physical environment would likely have a very negative effect on

Hunter’s emotional and psychological condition;

81. [Sierra] requires a change in care[-]givers from her residential treatment

facility to a safe and structured foster home, due to her no longer needing this

intensity of services. She testified that she would like to be moved to a foster

home closer to her mother. She testified that she misses her “old” foster

mother and wishes she were going there;

82. The testimony of [Mother] was not credible. Whenever pressed on an

issue that may be negative to her, [Mother] “could not remember.” [Mother]

did not remember how Sierra ended up with a bloody lip during the second

failed trial home placement. [Mother] could not remember if her therapy

included any of her past actions that may have contributed to Sierra’s

behaviors. [Mother] could not remember if she had a diagnosis from any of her

mental health evaluations. [Mother] could not remember anything that was

specifically her fault for any of the failed home placements;

83. [Mother] expressed emotional feelings for Sierra’s therapist to him,

resulting in the necessity for him to withdraw as Sierra’s therapist. The Court

finds that the requirement to change therapists was detrimental to Sierra’s

well[-]being;

84. [Mother] has not completed anger management training or counseling as

recommended in the parenting assessment;

85. [Mother] stated that she does not have an anger management problem;

86. [Mother] stated that the only reason she is in counseling is that it is a

requirement of the permanency plans;

87. Despite having graduated from college in December, 2009, [Mother] is

not currently employed and, with the exception of registering with a career

center, she has made little effort to obtain employment;

88. [Mother] was employed in the public sector prior to her graduation from

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college;

89. A parenting assessment completed by Dr. John [Angelopoulos] found that

[Mother] lacked interpersonal skills, presents as accusatory, combative, and

paranoid, and has a history of poor decision-making skills. His evaluation

assessed her risk of future abuse and neglect as “high;”

90. [Mother] was given prepaid gas cards from the Department of Children’s

Service[s] to travel to Atlanta to visit with Sierra at the residential placement

facility when visits were approved by the Court in the fall of 2010. The

residential placement facility always paid for the costs of her motel room to

stay overnight.

91. On some occasions, the cost of gasoline exceeded the prepaid gas cards

which [Mother] had received from the Department of Children’s Services. She

presented numerous gas receipts with hand-written notations for the purported

purpose of evidencing these purchases. She presented receipts for new tires

for her automobile, anti-freeze, a radiator hose, oil and oil change, and

windshield blades, which the Court finds are expenses of normal vehicle

maintenance. Her visits with Sierra were on alternating weekends and she has

presented gas receipts for every day of the week, including receipts for

purchases made with the prepaid gas cards. She presented several gas receipts

for $10.00 each to go to the Department of Children’s Services to pick up her

prepaid gas cards. She has presented receipts for attending family therapy with

Hunter and to visit with him, even though the family therapy and visits with

Hunter were local.

92. The only definitive receipts which the Court can attribute to the mother’s

alternating weekend trips to Atlanta to visit Sierra (which were not paid by

prepaid gas cards and the residential facility for lodging) are for February 17,

2011 ($50.00), February 19, 2011 ($69.42), March 19, 2011 ($6.40 and

$23.00), April 9, 2011 ($27.00), and April 23, 2011 ($65.00).

93. [Mother] purchased poker cards ($1.00) on February 3, 2011, Chap Stick

($1.65) on February 18, 2011, nail glue and air brush nails ($2.00) on February

19, 2011, a greeting card ($1.00) on March 18, 2011, 3 pairs of socks on April

9, 2011, and puzzles ($7.00) on April 23, 2011, for her daughter, Sierra. She

presented no other receipts or evidence of direct gifts or support to Sierra.

94. [Mother] presented no receipts or evidence of gifts or support to Hunter.

***

1. From the exhibits entered into evidence, the testimony of the witnesses and

the record as a whole, the Court finds and so rules that the GAL and DCS have

proven by clear and convincing evidence that the mother, [Mother] has

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abandoned her children, [Sierra] and [Hunter], by willfully failing to pay child

support for four consecutive months immediately preceding the filing of the

Petition. The Petition to Terminate Parental Rights was filed on July 20, 2010.

The proof showed that a total of $20.00 ($10.00 per child) in child support was

paid during the period of March 20, 2010, and July 20, 2010, the four

consecutive months immediately preceding the filing of the Petition. The

Court finds and so rules that $10.00 in child support during a four month

period is token support under the circumstances.

2. The proof further showed that the mother, [Mother], is a college graduate,

is unemployed, and has done little or nothing to obtain employment since her

graduation. [Mother] had worked in the public sector prior to her graduation

from college. [Mother] obtained money by selling plasma and received

financial support from her family. She is able to spend approximately $90.00

per month on cigarettes, and yet is unable to make even minimal payments for

the support of her children. Her testimony that she was unable to work due to

a grease burn on July 4, 2010, was not supported by medical evidence and is

not credible. [Mother] was aware that she had the obligation of supporting her

children, that she had been ordered by the Court to pay child support, and that

she was present in Court when child support was set. She had paid child

support in the past. She knew the consequences of her failure to pay child

support since she was provided copies of the Definition of Abandonment and

Criteria and Procedure for Termination of Parental Rights by the Department

of Children’s Services on several occasions, and since the Court explained the

definition to [sic] abandonment to her in the permanency plan hearings several

times prior to the filing of the Petition. The Court finds and so holds,

therefore, that there is clear and convincing evidence that the mother’s failure

to pay child support was willful.

3. The Court is, therefore, of the opinion and so holds that the GAL and the

DCS have proven, by clear and convincing evidence, the statutory grounds for

termination of parental rights as set out in T.C.A. § 36-1-113(g)(1) as defined

in T.C.A. § 36-1-102(1[)](A)(i), as to [Mother], by reason of abandonment for

willful failure to provide support for the children during the four consecutive

months immediately preceding the filing of the petition.

4. From the exhibits entered into evidence, the testimony of the witnesses and

the record as a whole, the Court finds and so rules that the GAL and DCS have

proven, by clear and convincing evidence, that that [sic] there are conditions

that exist that will prevent the safe return of the children to the mother; there

is little likelihood that the conditions will be remedied in the near future; and,

continuation of the parent and child relationship greatly diminishes the

children’s chances of early integration into a safe, stable and permanent home.

-31-

The children have been in DCS custody for over seven and one-half years.

They were removed from the mother’s home due to findings of inappropriate

conduct on the part of the mother, i.e., permitting the then 5 year old [Sierra]

to be present when the mother was having sex with her boyfriend. The

Hamblen County Juvenile Court also found that Sierra had been sexually

abused by her half-sister. The mother did little or nothing to protect the child

from her half-sister. Since that time other conditions have arisen or come to

light that prevent the return of the children to the mother’s care and custody.

The children were placed on a trial home placement which disrupted due to the

mother being evicted from her home. The children were placed on a second

trial home placement which was disrupted when the mother engaged in a

physical altercation with Sierra in a grocery store resulting in the child

receiving a bloody mouth. The mother’s testimony that she “did not

remember” how the child got the bloody mouth is not credible. The third trial

home placement disrupted when the mother engaged in corporal punishment

of Sierra leaving evidence of hand marks in direct disobedience of the Court’s

Orders for her to refrain from exercising corporal punishment to the children

due to the history of the case. The children’s behaviors deteriorated

significantly after the end of the last trial home placement. The children

engaged in fights and inappropriate sexual conduct to the extent that they had

to be placed in separate foster homes. The child [Sierra’s] behaviors have

resulted in her out of state residential treatment for approximately one year.

The child [Hunter’s] behaviors included lying, stealing, disruptive behavior,

cursing, failure to sleep and fire starting. The mother, [Mother], has never

acknowledged, either in therapy or in Court, her role in creating or continuing

the situations which have made it necessary for the children to be in foster

care, with the exception of a very recent acknowledgment that “she could have

handled things differently.” The mother’s therapist testified that the mother

has made minimal progress in therapy over the last two years. Neither the

mother’s therapist nor either of the children’s therapists could recommend the

return of either of the children to the mother. Both children have expressed

fear of their mother. The parenting assessment by Dr. John Angelopoulos

noted that [Mother] lacked interpersonal skills, that she presents as accusatory,

combative and paranoid, and that she has a history of poor decision making

skills. [Mother] denied any responsibility for the situation concerning her

children during the parenting assessment. Dr. Angelopoulos assessed her risk

of future abuse and neglect is high due to her level of denial, paranoia and the

history of the case. More recently there were two incidents involving

[Mother’s] two year old granddaughter which serve to confirm the therapists’

opinions. [Mother] was overheard telling her daughter that they should take the

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toddler away from their apartment to spank her so that no one could hear the

spanking. In a separate incident [Mother] reported that she had spanked her

two year old granddaughter, except that her terminology was the [sic] she had

“busted her ass.” Given her recent willingness to use corporal punishment, the

fact that two of the trial home placements were terminated due to her using

corporal punishment on her children, the fact that she has made minimal

progress in her therapy in 41 sessions over a two year period, that she has been

assessed had [sic] having a high probability of abusing or neglecting her

children, that she has shown no acknowledgment or insight of her role in the

reasons that the children are and remain in the State’s custody, that the children

have expressed fear of her, it is apparent that there has been little positive

change in her behavior or mental state and a lasting change, in all reasonable

probability is unlikely.

5. [Mother] has graduated from college and is an intelligent woman. She is

able to recite appropriate discipline parenting techniques of rewards and

consequences and taking away privileges; she is able to recite that corporal

punishment “should only be used as a very last resort.” She has not, however,

evidenced her being able to transfer her academic knowledge of appropriate

parenting into “real life” parenting as evidenced by her recent conduct

involving her two year old granddaughter.

6. The Court, therefore, finds and so hold that the GAL and DCS have proven

by clear and convincing evidence that the children have been removed from

the home of their mother for a period of six months; that conditions exist, other

than those which resulted in the children’s removal, which in all reasonable

probability would cause the children to be subjected to further abuse and

neglect should they be returned to the mother’s care and custody; that these

conditions prevent the children’s safe return to the mother’s care; and that

there is little likelihood that these conditions will be remedied at an early date

so that the children can be returned to the mother in the near future; and that

the continuation of the parent and child relationship greatly diminishes the

children’s chances of early integration into a safe, stable, and permanent home.

The children have been in custody of the Department of Children’s Services

for over seven years. The mother has been in therapy for almost two years

with minimal results. There have been other therapy providers prior to the

current provider. The mother has shown a continued propensity to use

corporal punishment on children in her care. While she graduated from East

Tennessee State University with two degrees over eighteen months ago, she

is still unemployed and is making little, if any, effort to become employed.

The children will require superior parenting skills to address their mental

health problems and behaviors. Although [Mother] can recite academically

-33-

appropriate parenting skills, she has not demonstrated parenting skills which

would be adequate to parent significantly less challenging children. The Court

further finds and so holds that the GAL and DCS have proven by clear and

convincing evidence that the continuation of the parent and child relationship

greatly diminishes the children’s chances of early integration into a safe, stable

and permanent home. The children have been in DCS custody for over seven

and one-half years. During that time the mother, [Mother], has not made any

significant progress on correcting the conditions which resulted in the children

remaining in foster care. According to every mental health expert that

provided testimony in this matter, there is little likelihood that significant and

sufficient progress could be made in the near future. [Hunter] is well integrated

into a foster home and the foster parent desires to adopt him. [Sierra] has made

significant progress on her behaviors and she is ready to be released from

residential placement and placed in an appropriate therapeutic foster home.

Any further delays in terminating the parent and child relationship just further

delays integration of the children into a safe, stable and permanent home.

Therefore the Court finds and so holds that the GAL and DCS have proven by

clear and convincing evidence that the conditions required to prove the

statutory grounds for termination of parental rights pursuant to T.C.A. § 36-1-

113(g)(3) “persistent conditions” have been proven as to [Mother].

***

Best Interests:

1. The Court has carefully considered each of the statutory factors of “best

interests” contained in T.C.A. § 36-1-113(i).

2. The Court finds from the testimony of the witnesses, the exhibits entered

into evidence, and the record as a whole that the GAL and DCS have proven

by clear and convincing evidence that it is in the best interests of the children

that the parental rights of [Mother] be terminated.

3. The Court finds that [Mother] has not made such an adjustment in her

circumstance, conduct or conditions as to make it safe and in the children’s

best interest to be returned to her home. The incident with [Mother’s] two year

old granddaughter, which she did not deny, gives the Court great concern,

specifically considering that the termination of the last two trial home

placements were the direct result of [Mother] using inappropriate corporal

punishment on Sierra after the Court had specifically prohibited the mother

using corporal punishment on the children. The mother’s progress in therapy

over 41 months has been “minimal”. The parenting assessment showed a high

risk of abuse and neglect. No mental health professional, including the

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mother’s therapist, was able to testify that it was in the children’s best interests

to be returned to their mother. Wherefore the Court finds and so holds,

pursuant to T.C.A. § 36-1-113(i)(1) that the GAL and DCS have proven by

clear and convincing evidence that it is in the best interests of [Sierra] and

[Hunter] that the parental rights of their mother, [Mother], be terminated for

her failure to make such an adjustment of her circumstance, conduct or

conditions so that is in the children’s best interest to be returned to her home.

4. The Court finds and holds from the testimony of the witnesses, the exhibits

entered into evidence and the record as a whole that the GAL and DCS have

proven by clear and convincing evidence that it is in the best interests of the

children that the parental rights of [Mother] be terminated as she has not made

a lasting adjustment after reasonable efforts by DCS for such a duration of

time that lasting adjustment does not reasonably appear possible. The children

have been in foster care for over seven and one-half years. The Court finds

that there has been extensive involvement by the Department of Children’s

Services and many other mental health and social services agencies. The DCS

has provided residential treatment for Sierra for approximately one year. The

mother has participated in bi-weekly family therapy with Sierra. The mother

has participated in family therapy with Hunter. [Mother], has been in

individual therapy for almost two years and yet has made only minimal

progress. There has been a parenting assessment by Dr. John [Angelopoulos]

with numerous recommendations, including anger management, in which the

mother failed to participate. There has been therapeutic visitation services

provided between Hunter and his mother. Hunter remains afraid of his mother

and appears relieved when the visits are concluded, clinging to his foster

mother. There have been three trial home placements, all of which were

ultimately terminated. There has been such an extensive set of services

provided for such an extended period of time with such little adjustment in the

mother’s conduct that any las[t]ing adjustment does not reasonably appear

possible. The Court finds that DCS has made more than reasonable efforts to

attempt to assist the mother and to remedy the reasons that resulted in

continued foster care for these children. The Court finds and so holds,

pursuant to T.C.A. § 36-1-113(i)(2) that the GAL and DCS have proven by

clear and convincing evidence that it is in the best interests of [Sierra] and

[Hunter] that the parental rights of their mother, [Mother], be terminated for

failure to make such a lasting adjustment after reasonable efforts by DCS, for

such a duration of time that a lasting adjustment does not reasonably appear

possible.

5. The Court finds and holds from the testimony of the witnesses, the exhibits

entered into evidence and the record as a whole that the GAL and DCS have

-35-

proven by clear and convincing evidence that it is in the best interests of the

children that the parental rights of [Mother] be terminated as she has not

established or maintained a meaningful relationship with the children. The

children have expressed fear of their mother. Hunter does not talk about his

mother other than to show anxiety when he was required to visit with her. He

appeared relieved when the visits were over. The individual who is

supervising the visitation between Hunter and his mother has to “prod” them

during the visits. Sierra has repeatedly suffered physical injuries by her mother

in that she had a bloody mouth and visible hand marks and bruises during trial

home placements. The perpetrator of the sexual abuse on Sierra (her half-

sister) was recently residing with [Mother]. With the exception of the three

failed trial home placements, the longest of which was about six weeks, the

children have not spent any meaningful time with their mother in over seven

years. Hunter did not, until recently, realize that he had been removed from

[Mother’s] custody. The Court interprets the relationship between Sierra and

her mother as not a parent-child relationship but as a diversion from Sierra’s

residential placement. The Court, therefore, holds, pursuant to T.C.A. § 36-1-

113(i)(4) that the GAL and DCS have proven by clear and convincing

evidence that it is in the best interests of [Sierra] and [Hunter] that the parental

rights of their mother, [Mother], be terminated for her failure to establish or

maintain a meaningful relationship with the children.

6. The Court finds and holds from the testimony of the witnesses, the exhibits

entered into evidence and the record as a whole that the GAL and DCS have

proven by clear and convincing evidence that it is in the best interests of the

children that the parental rights of [Mother] be terminated as a change in care[-

]givers at this point in their lives would be detrimental to their emotional,

psychological and medical conditions. The Court holds that a change of care[-

]givers and physical environment would likely have a very negative effect on

Hunter’s emotional, psychological and medical condition. He is stable,

apparently for one of the first times in his life. He is making progress on his

behavior. He has a loving relationship with his foster mother. He calls her

“Mom.” He has asked her when she is going to adopt him. A change in care[-

]givers would have a very negative effect on him. Sierra needs a change of

care[-]givers and physical environment based upon the testimony of her

therapist in that she needs to be able to step down to a very safe and structured

foster home at this point. Based on the testimony of the therapists, the

mother’s recent history of inflicting corporal punishment on her two year old

granddaughter and the mother’s suggestion of taking the toddler out to

physically punish her where no one can hear or observe, the Court finds that

the mother, [Mother], in all reasonable probability, will not and cannot provide

-36-

the type of safe and stable environment required to meet Sierra’s emotional

and psychological needs. The Court, therefore, holds, pursuant to T.C.A. § 36-

1-113(i)(5) that the GAL and DCS have proven by clear and convincing

evidence that it is in the best interests of [Sierra] and [Hunter] that the parental

rights of their mother, [Mother], be terminated because a change in care[-

]givers to the mother at this point in their lives would be detrimental to the

children’s emotional and psychological well[-]being.

7. The Court finds and holds from the testimony of the witnesses, the exhibits

entered into evidence and the record as a whole that the GAL and DCS have

proven by clear and convincing evidence that it is in the best interests of the

children that the parental rights of [Mother] be terminated as [Mother’s]

mental and emotional status will be detrimental to the children and prevents

her from effectively parenting the children. The Court finds that the mother’s

emotional and mental status at this point would be detrimental to the children

and would prevent her from effectively providing safe and stable care and

supervision for the children. [Mother’s] demeanor when testifying, her lack of

credibility, and the testimony of the therapists and mental health experts leave

little doubt that she has emotional and/or mental issues that prevent her from

being an effective parent for these two children, especially when these children

need consistent and exceptional parenting skills to meet their needs.

Wherefore the Court finds and so rules, pursuant to T.C.A. § 36-1-113(i)(8)

that the GAL and DCS have proven by clear and convincing evidence that it

is in the best interests of [Sierra] and [Hunter] that the parental rights of their

mother, [Mother] be terminated because her emotional and/or mental status

would be detrimental to the children and prevent her from effectively

providing safe and stable care and supervision for the children.

8. The Court finds and holds from the testimony of the witnesses, the exhibits

entered into evidence and the record as a whole that the GAL and DCS have

proven by clear and convincing evidence the statutory grounds for termination

of parental rights pursuant to T.C.A. § 36-1-113(g)(1), abandonment for

willful failure to pay child support; and T.C.A. § 36-1-113(g)(3), persistence

of conditions. Further, the Court finds that the GAL and DCS have proven by

clear and convincing evidence that it is in the best interests of the children

[Sierra] and [Hunter] that the parental rights of [Mother] be terminated

pursuant to the provisions of T.C.A. §§ 36-1-113(i)(1), (2), (4), (5) and (8).

Therefore the Court finds and so holds that the GAL and DCS have proven by

clear and convincing evidence that the conditions for termination of parental

rights as set forth in T.C.A. § 36-1-113(c)(1) and (2) have been established in

this matter. Therefore, that the parental rights of [Mother] to the children,

[Sierra] and [Hunter] be and are terminated.

-37-

Mother appeals to this Court the termination of her parental rights.

Discussion

Although not stated exactly as such, Mother raises three issues on appeal: 1)

whether the Juvenile Court erred in finding and holding that clear and convincing evidence

existed to terminate her parental rights to the Children pursuant to Tenn. Code Ann. § 36-1-

113(g)(1) for willful failure to provide support; 2) whether the Juvenile Court erred in

finding and holding that clear and convincing evidence existed to terminate Mother’s

parental rights to the Children pursuant to Tenn. Code Ann. § 36-1-113(g)(3) for persistent

conditions; and, 3) whether the Juvenile Court erred in finding by clear and convincing

evidence that it was in the Children’s best interest for Mother’s parental rights to be

terminated.

Our review is de novo upon the record, accompanied by a presumption of

correctness of the findings of fact of the trial court, unless the preponderance of the evidence

is otherwise. Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721, 727 (Tenn. 2001).

A trial court's conclusions of law are subject to a de novo review with no presumption of

correctness. S. Constructors, Inc. v. Loudon County Bd. of Educ., 58 S.W.3d 706, 710 (Tenn.

2001).

Our Supreme Court reiterated the standard of review for cases involving

termination of parental rights, stating:

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.

In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006).

In Department of Children’s Services v. D.G.S.L., this Court discussed the

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relevant burden of proof in cases involving termination of parental rights stating:

It is well established that "parents have a fundamental right to the care,

custody, and control of their children." In re Drinnon, 776 S.W.2d 96, 97

(Tenn. Ct. App. 1988) (citing 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 if there is clear and convincing evidence justifying

such termination under the applicable statute." Id. (citing Santosky v. Kramer,

455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)).

Termination of parental or guardianship rights must be based upon a

finding by the court that: (1) the grounds for termination of parental or

guardianship rights have been established by clear and convincing evidence;

and (2) termination of the parent’s or guardian’s rights is in the best interests

of the child. Tenn. Code Ann. § 36-1-113(c). Before a parent’s rights can be

terminated, it must be shown that the parent is unfit or substantial harm to the

child will result if parental rights are not terminated. In re Swanson, 2 S.W.3d

180, 188 (Tenn. 1999); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct.

App. 1998). Similarly, before the court may inquire as to whether termination

of parental rights is in the best interests of the child, the court must first

determine that the grounds for termination have been established by clear and

convincing evidence. Tenn. Code Ann. § 36-1-113(c).

Dep’t of Children’s Servs. v. D.G.S.L., No. E2001-00742-COA-R3-JV, 2001 Tenn. App.

LEXIS 941, at **16-17 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed. Clear

and convincing evidence supporting any single ground will justify a termination order. E.g.,

In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

We first address whether grounds existed to terminate Mother’s parental rights

to the Children pursuant to Tenn. Code Ann. § 36-1-113 (g)(1) for willful failure to provide

support. In pertinent part, Tenn. Code Ann. § 36-1-113 (g) provides:

(g) Initiation of termination of parental or guardianship rights may be based

upon any of the grounds listed in this subsection (g). The following grounds

are cumulative and non-exclusive, so that listing conditions, acts or omissions

in one ground does not prevent them from coming within another ground:

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

has occurred;

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Tenn. Code Ann. § 36-1-113 (g)(1) (2010). As pertinent to this appeal, Tenn. Code Ann. §

36-1-102 provides:

(1)(A) 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, “abandonment” means 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;

***

(D) For purposes of this subdivision (1), “willfully failed to support” or

“willfully failed to make reasonable payments toward such child’s support”

means the willful failure, for a period of four (4) consecutive months, to

provide monetary support or the willful failure to provide more than token

payments toward the support of the child;….

Tenn. Code Ann. § 36-1-102 (1)(i) (2010).

In her brief on appeal, Mother admits that she was aware of her duty to support

the Children and aware that her child support obligation was $180.00 per month. Mother,

however, argues that she made “in excess of $10,000 [in child support payments] over the

seven and a half years (7.5) that the children were in DCS custody,” and that “[s]he continued

to make these child support payments despite lack of stable employment.” Mother has

missed the point.

The statute specifically requires that courts consider the relevant four month

period “immediately preceding the filing of a proceeding or pleading to terminate the

parental rights …,” not other periods of time. Tenn. Code Ann. § 36-1-102(1)(A)(i) (2010).

The fact that Mother may have made child support payments at some point in the past is

immaterial to the analysis. The Juvenile Court found by clear and convincing evidence that

Mother had paid only $20.00 in child support during the relevant four month period, and

further found that this amounted to token support. The evidence in the record on appeal does

not preponderate against these findings.

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Mother also argues on appeal that her failure to pay child support was not

willful because she was unable to provide support. The Juvenile Court, however, found

Mother not to be credible particularly with regard to her testimony about the fact that

although she obtained two college degrees she is unable to obtain any employment and

unable to work. The Juvenile Court also found that Mother spent, by her own admission,

$90.00 per month on cigarettes, and was able to treat her adult daughter to concert tickets,

despite her assertions that she was unable to provide support for the Children.

We give great deference to a trial court’s credibility determinations. As our

Supreme Court has instructed:

When credibility and weight to be given testimony are involved, considerable

deference must be afforded to the trial court when the trial judge had the

opportunity to observe the witnesses’ demeanor and to hear in-court testimony.

Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997) (quoting Randolph v.

Randolph, 937 S.W.2d 815, 819 (Tenn. 1996)). Because trial courts are able

to observe the witnesses, assess their demeanor, and evaluate other indicators

of credibility, an assessment of credibility will not be overturned on appeal

absent clear and convincing evidence to the contrary. Wells v. Bd. of Regents,

9 S.W.3d 779, 783 (Tenn. 1999).

Hughes v. Metro. Gov’t of Nashville and Davidson County, 340 S.W.3d 352, 360 (Tenn.

2011).

We will not overturn the Juvenile Court’s assessment of Mother’s lack of

credibility. As the evidence does not preponderate against the findings made by the Juvenile

Court by clear and convincing evidence, we find no error in the Juvenile Court’s finding and

holding that grounds existed to terminate Mother’s parental rights to the Children pursuant

to Tenn. Code Ann. § 36-1-113(g)(1) for willful failure to provide support.

We next consider whether the Juvenile Court erred in finding and holding that

clear and convincing evidence existed to terminate Mother’s parental rights to the Children

pursuant to Tenn. Code Ann. § 36-1-113(g)(3) for persistent conditions. In pertinent part,

Tenn. Code Ann. § 36-1-113(g)(3) provides that termination of parental rights may be based

upon the grounds that:

(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

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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;

Tenn. Code Ann. § 36-1-113(g)(3) (2010).

In her brief on appeal, Mother states that Ms. Hatcher, Sierra’s therapist,

testified that Mother was mostly “on task” with therapy and that Mother’s progress was

“moderate and more than minimal.” Further, Mother states that Ms. Hatcher could not

conclusively state that reunification between Mother and Sierra within six months was not

possible. While it is true that Ms. Hatcher did make these statements during her testimony,

Mother ignores the other testimony given by Ms. Hatcher, and the testimony given by

numerous other therapists and mental health professionals, in addition to the other evidence

in the record, as discussed more fully above.

The Juvenile Court found and held that DCS had proven by clear and

convincing evidence that grounds existed to terminate Mother’s parental rights to the

Children pursuant to Tenn. Code Ann. § 36-1-113(g)(3) for persistent conditions. A careful

and thorough review of the record reveals that the evidence does not preponderate against

these findings. As such, we find no error in the Juvenile Court’s finding and holding that

clear and convincing evidence existed to terminate Mother’s parental rights to the Children

pursuant to Tenn. Code Ann. § 36-1-113(g)(3) for persistent conditions.

Finally, we consider whether the Juvenile Court erred in finding by clear and

convincing evidence that it was in the Children’s best interest for Mother’s parental rights

to be terminated. As pertinent to this issue, Tenn. Code Ann. § 36-1-113(i) provides:

(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

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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;

(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.

Tenn. Code Ann. § 36-1-113(i) (2010).

The Juvenile Court considered all the relevant statutory factors and made very

specific and detailed findings with regard to the best interest analysis. The evidence in the

record does not preponderate against these findings. We find no error in the Juvenile Court’s

finding and holding that clear and convincing evidence was proven that it was in the best

interest of the Children for Mother’s parental rights to be terminated.

Conclusion

The judgment of the Juvenile Court is affirmed, and this cause is remanded to

the Juvenile Court for collection of the costs below. The costs on appeal are assessed against

the appellant, Susan M.M., and her surety, if any.

_________________________________

D. MICHAEL SWINEY, JUDGE

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