In the Matter of S.L.R. Children Under 18 Years of Age

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

NOVEMBER 3, 2004 Session

IN THE MATTER OF S.L.R, ET AL., CHILDREN UNDER 18 YEARS OF AGE

Direct Appeal from the Juvenile Court for Putnam County

No. 624-DCS John Hudson, Judge

No. M2004-01565-COA-R3-PT - Filed December 28, 2004

This case involves a lengthy and protracted attempt by the Department of Children’s Services and

numerous other social services agencies to assist the biological parents of five children with creating

an acceptable environment for the children. After five years and repeated efforts, the Department

of Children’s Services filed a petition to terminate the parental rights of mother and father alleging

the grounds of abandonment by failure to provide support, abandonment by failure to provide a

suitable home, failure to substantially comply with the permanency plans, and persistent conditions.

The department also alleged that termination of the parental rights was in the best interest of the

children. Following a hearing on the petition, the juvenile court entered an order terminating the

parental rights of the natural parents. The mother of four of the children and the father of all five

children filed an appeal to this Court. After reviewing the entire record, we affirm.

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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY

M. KIRBY , J., joined.

Elizabeth Earl McDonald, Sparta, TN, for Appellants

Paul G. Summers, Attorney General & Reporter, Douglas Earl Dimond, Senior Counsel, Nashville,

TN, for Appellee

OPINION

I. Factual Background and Procedural History

Cynthia Lynn Bradham Reynolds (“Mother”), presently twenty-six (26) years of age, and

Ronnie Reynolds (“Father” or collectively with Mother, “the Reynolds”), presently fifty-eight (58)

years of age, are married and lived together with five children. Mother and Father had four children

during their marriage: S.L.R. (dob: 12/17/1997), S.A.R. (dob: 01/03/1999), D.K.R. (dob:

09/01/2000), and R.R. (dob: 08/28/2001). Father and his ex-wife, Lois Marie Murphy Reynolds

(“Ex-Wife”),1 had a child together, S.R. (dob: 12/10/1990), who also resided with Mother and

Father. Mother is the stepdaughter of Father and the daughter of Ex-Wife. All of the Reynolds’

children are classified as special needs children. The events in this case, as explained in the

voluminous record, began in 1998 and culminated in 2004 with the termination of the parental rights

of the natural parents. A multitude of state, private, and religious organizations played key roles in

the events set forth in the following paragraphs.

The record begins in September of 1998 when Patsy Billings (“Ms. Billings”), an employee

of the Putnam County Health Department, began working with the Reynolds’ family following a

referral made to the Department of Children’s Services (“DCS”) concerning the family. Ms. Billings

entered the home in order to assist the family with learning basic housekeeping, hygiene, and

parenting skills. When she made these visits to the home, Ms. Billings would find the home in

deplorable condition. Ms. Billings observed that the children had poor hygiene and were improperly

dressed; roaches were crawling throughout the house; old diapers with feces were lying throughout

the home; a foul odor permeated the residence; the floors were filthy; and bottles containing soured

milk were lying around. Ms. Billings observed the children wearing either “soured clothing” or

nothing at all. She also noted her concerns about Mother and Father not changing soiled diapers

frequently enough and the children developing diaper rash as a result.

Ms. Billings also found that the children were not receiving proper stimulation because they

were being left in playpens without interaction. She wanted to refer S.L.R. to the Tennessee Early

Intervention Services (“TEIS”) program, but Father refused the service. Ms. Billings also counseled

Father about smoking in the house around the children. She was concerned because R.R. had to be

hospitalized for breathing problems and was taking breathing treatments. Apparently, these

counseling sessions had little effect. When Ms. Billings made return visits to the home to check on

the family’s progress, she would find full ashtrays stuck under, or inside, the cushions of the sofa.

She also noted that bugs were crawling inside the tubing of R.R.’s breathing machine, which

prompted a session with Mother and Father on how to properly clean and store the machine. Over

the course of several years, Ms. Billings worked with this family and made a total of 226 visits to

1

On June 17, 2004, the Department of Children’s Services filed a motion with the juvenile court requesting

a termination of Ex-W ife’s parental rights as to S.R. pursuant to Ex-W ife’s surrender of parental rights on June 10, 2004.

The juvenile court granted the motion and terminated Ex-W ife’s parental rights as to S.R. Ex-W ife has chosen not to

appeal this ruling by the juvenile court. Accordingly, Ex-W ife’s parental rights are not considered on appeal.

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the home. She stated that she went above and beyond her normal job duties in attempting to help

Mother and Father remedy the situation.

Bill Thorp (“Mr. Thorp”), a case manager with Life Care Family Services, also began

working with the family in 1998 following a referral to DCS concerning the Reynolds’ family. Mr.

Thorp helped the family locate agencies that could provide transportation, food, clothing, or any of

the other basic necessities of life. Like Ms. Billings, he too made frequent visits to the home and

reported similar findings. Mr. Thorp noted that, when he would make scheduled visits, the house

would be “immaculate.” However, when he dropped by unannounced he would find that conditions

once again had worsened. During these unscheduled visits, Mr. Thorp reported soiled diapers lying

on the floor; dirty dishes stacked up; ashtrays full of cigarette butts; and food scattered throughout

the home. Mr. Thorp felt that Mother and Father loved their children and were bonded to them, but

they were careless in parenting. For instance, S.L.R. would occasionally be burned by the cigarettes

Father smoked, but Mr. Thorp felt this was done accidentally. Mr. Thorp continued to work with the

family until March of 2000.

In July of 2001, Sharon Noonan (“Ms. Noonan”), a case manager with the DCS Child

Protective Services (“CPS”) division, was assigned to investigate a referral involving Mother and

Father. She visited the home on July 19, 2001, and found that conditions had once again deteriorated

to an unacceptable level. When she arrived, one of the children came to the door naked, and the

parents were reluctant to let her in. Upon entering the home, she found broken eggs and spilled milk

on the kitchen floor. When she began to leave, her “shoes were stuck to the floor and [she] could

hardly get [her] feet up without getting [her] shoes off.” She noted dirty clothes lying all over the

house, a very bad odor throughout the residence, and observed unsanitary baby bottles lying around.

When Ms. Noonan returned for a follow-up visit on July 23, 2001, she noted the house was

“immaculate.” ). During this latter visit, Ms. Noonan prepared a CPS Plan of Action, which Mother

signed, calling for the home to be kept clean.

On January 22, 2002, Ms. Noonan once again responded to the Reynolds’ home to investigate

yet another referral. Ms. Noonan observed one child running around naked; trash, food, and cigarette

butts on the floor throughout the house; roaches crawling on the floors and walls throughout the

house; dirty dishes all over the kitchen; the commode and bathtub were in deplorable condition; and

soiled clothes and bed linens piled four feet high in one room. Ms. Noonan noted that S.A.R. had

dried feces on her bottom and appeared to have not been bathed in several months. Ms. Noonan

reported that R.R. was lying in a bassinet that was too little for him and his clothes were filthy.

D.K.R. was in a playpen, and Ms. Noonan noted that she had an odor of “sour milk and poopie

diaper.” D.K.R. also appeared to have not been bathed for several months. Ms. Noonan instructed

Mother and Father to remedy the conditions before she returned for a follow-up visit. On January

24, 2002, Ms. Noonan re-visited the Reynolds’ home and entered into another CPS Plan of Action

to address the cleanliness issue, which Mother also signed. At this point, Ms. Noonan contacted

Family Support Services to come into the home on a weekly basis and ensure that the Reynolds’

family was receiving all the services they needed. Ms. Noonan admitted that, after each Plan of

Action was entered into, she would find the home clean on return visits.

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In February 2002, Ms. Billings made another visit to the Reynolds’ home to follow-up and

check the family’s progress. Ms. Billings arrived to find Mother and Father yelling at each other and

the children all crying. The front window was broken out, and Mother stated that she broke it with

her fist to keep from hitting Father. Mother further stated that Father had been cursing her and

blaming her for DCS being called back into their home.

On February 24, 2002, DCS assigned Jennifer Fisher (“Ms. Fisher”), an investigator with

CPS, to investigate another referral to the Reynolds’ home. Ms. Fisher arrived at the home to find

two police officers already present. The police officers had been called to investigate a report that

a small child had wandered to a store three blocks away from the Reynolds’ home near a busy

highway. The officers identified the child, S.A.R., as one of the Reynolds’ daughters and returned

her to the residence. As she approached the Reynolds’ house, Ms. Fisher noted the smell of stale

urine, and she observed soiled diapers and underwear lying on the front porch. Mother met Ms.

Fisher at the door and stated that she had been out looking for a new home and left Ex-Wife in

charge of watching the children. When Ms. Fisher entered the home, she observed trash and debris

throughout. The smell of urine also permeated the home’s interior. Ms. Fisher saw dirty clothes,

bedding, and trash covering the dining room table. When she entered the kitchen, Ms. Fisher

observed used toilet paper with “brown stains” lying on the kitchen floor. Baby bottles with

clabbered milk and cups littered the kitchen floor, and when she opened the refrigerator, she found

rotting food and roaches inside. The kitchen sink and counter-tops were covered with dirty dishes,

egg shells, trash, coffee grounds, and an empty baby formula can. Ms. Fisher noted that the stove,

walls, counter-tops, and refrigerator were crawling with roaches.

Regarding the condition of the children, Ms. Fisher described the children as “dirty.” She

noted that their faces were caked with food and dirt, and she noted that the children’s hair was

matted and stiff with grime. R.R. was wearing a soiled diaper and appeared very dirty. The children

also smelled of stale urine. While Ms. Fisher was at the Reynolds’ home, S.A.R. once again ran out

the door toward the street. At one point S.A.R. went into the roadway, and Ms. Fisher watched

Mother drag her by the arm back to the house. Ms. Fisher noted that S.L.R.’s eye was matted with

a yellow discharge. After observing these conditions, Ms. Fisher documented the condition of the

home with photographs and called her supervisor. DCS filed a Petition for Temporary Custody with

the Juvenile Court of Putnam County that same day, as well as an Affidavit of Reasonable Efforts

made by DCS up to that point in time. The juvenile court entered a Protective Custody Order finding

probable cause that the Reynolds’ children were dependent and neglected, and the court placed the

children in the temporary custody of DCS for foster home placement. The court also appointed a

guardian ad litem to represent the children.

After removing the children from the home, Ms. Fisher took the children, accompanied by

Mother and Ex-Wife, to the police department to await the arrival of the foster parent. Ms. Fisher

noted that Mother and Ex-Wife did not appear to have any control over the children. While they

were waiting, the police officers brought the family something to eat. When they were done eating,

Ms. Fisher observed that the floor was covered with food, and Mother made no attempt to clean up.

One of the girls ran out the door and toward a busy street, but Mother made no attempt to go after

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the child unless she was requested to do so. The girl also ran into the men’s restroom and started

playing in the toilets, all while Mother and Ex-Wife sat idly by. S.R. appeared to be visibly

distraught during this ordeal, but Ms. Fisher noted that Mother made no attempt to comfort her son.

Devonna Walters (“Ms. Walters”), a case manager with DCS, also became involved with the

Reynolds’ family in February 2002 when she was assigned to be the home county case manager for

the children. On March 21, 2002, Ms. Walters made a visit to the Reynolds’ home to check their

progress. The Reynolds were not home at the time, but Ms. Walters looked into the windows and

observed food sitting out; dirty dishes piled up on the counter; and trash on the front porch. She

documented the condition of the home during her visit by taking photographs, and she continued to

work with the Reynolds. As part of her job duties, she is required to prepare Permanency Plans for

children entering foster care. On March 22, 2002, Ms. Walters created a Permanency Plan for each

of the Reynolds’ five children. The Permanency Plans listed the dual goals of returning the children

to the Reynolds’ home and adoption. According to Ms. Walters, the dual goals were chosen because

of the long, recurring pattern of behavior displayed by Mother and Father. The Permanency Plans

called for Mother and Father to appropriately supervise their children; exterminate the roaches from

the home; seek alternative housing to better accommodate a family of seven; have S.L.R. examined

by a specialist and undergo speech therapy;2 and for the parents to undergo parenting classes.

Mother and Father appeared to be making great strides toward achieving the goals set forth

in the Permanency Plans. During the trial period, Ms. Walters explained how DCS provided Mother

and Father with transportation to visitation and doctor’s appointments; placed Child Health and

Development (“CHAD”) into the home to work with Mother and Father on child development

issues; brought in TEIS to work with the family; and brought in Kids First to work with Mother and

Father on reunification. Ms. Walters provided Mother and Father with a list of telephone numbers

to different agencies that would help them achieve the goals set forth in the Permanency Plans.

Father contacted an exterminator to come to the home and treat the roach problem. Ms. Walters took

Mother to the Department of Safety to obtain a study guide so she could work toward getting her

driver’s license. Mother and Father completed the required parenting classes. Ms. Walters contacted

an educational specialist and attorney with DCS to work on the children’s unique educational needs.

Ms. Walters was also able to get the children on a waiting list for day care services, and DCS was

prepared to pay a majority of the cost for this service.

On April 11, 2002, Ms. Walters went to the Reynolds’ home once again to check on their

progress. On this occasion, she found the house to be very clean and documented the condition of

the home by taking pictures. The juvenile court conducted a hearing that same day, and both parties

stipulated that the parents had remedied the unsafe and unsanitary conditions in the home. DCS

agreed to remove adoption as a goal of the Permanency Plans and focus solely upon reunification

2

S.L.R. was born with a facial deformity which caused her eyes to be far set. M s. Billings had originally

attempted to get Mother and Father to take S.L.R. to see a specialist regarding what could be done to remedy the

condition. Mother did not want S.L.R. to undergo the surgery because, according to M other, the doctor believed that

there was a possibility S.L.R. would go blind.

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of the children with their parents. The court ordered that the children were to remain in the custody

of DCS, but the children may be placed back in the home for a ninety (90) day trial home visit. Kids

Putnam, an early intervention program designed for kids with disabilities, sent Latonya Mott (“Ms.

Mott”) to work with Mother and Father during April 2002. Unfortunately, once the children returned

to the home the cycle began anew. Upon visiting the home, Ms. Mott observed that conditions had

deteriorated to their previous state. During the same period, Ms. Walters conveyed that on one

occasion she transported Mother and Father to a local fast food restaurant where she observed

roaches crawl out of Father’s coat and across the table. She also observed roaches come out of

Father’s clothes on another occasion while taking the children to a doctor’s appointment.

On May 20, 2002, Vickie Tower (“Ms. Tower”), a registered nurse with the Putnam County

Health Department, visited the Reynolds’ home. She noted that the children were very dirty and had

a bad odor; Mother had one child outside and inappropriately dressed for the temperature; there was

a foul odor throughout the home; food and trash were scattered on the carpet; and bugs were

crawling throughout the house. Ms. Tower found ashtrays in the cushions and discussed with Father

the need to not smoke in the house due to R.R.’s respiratory condition. She also counseled Mother

and Father on changing the children’s diapers more frequently due to diaper rash.

On May 23, 2002, Ms. Walters went to S.A.R.’s school. Just before the children took their

nap, the teacher would have them remove their shoes and socks. On this particular day, the teacher

noticed that S.A.R.’s sock was sticking to the bottom of her foot. The classroom nurse examined

S.A.R.’s foot and noticed an untreated burn. Ms. Walters took photos of S.A.R.’s foot, and the

school nurses treated the burn. Ms. Walters spoke to S.L.R. about S.A.R.’s burn, and S.L.R.

informed Ms. Walters that S.A.R. had gotten into trouble at home and Mother had put S.A.R. on the

counter where her foot touched the hot stove eye. Ms. Walters then proceeded to the Reynolds’

home. She informed Mother of the burn on S.A.R.’s foot, but Mother denied any knowledge of the

burn. According to Mother, S.A.R. burned her foot at school, and the teacher failed to call Mother

and tell her about it. While at the residence, Ms. Walters also noted that the conditions of the home

had once again deteriorated, which she documented by taking pictures. She noticed what appeared

to be diaper rash on R.R. that looked as if it were about to bleed. When she felt the child’s diaper,

it appeared to be wet and was sagging, so she instructed Mother to change the diaper in front of her.

When Mother removed the diaper, Ms. Walters found a severe case of diaper rash covering R.R.’s

entire genital area. Ms. Walters documented this with a photograph and instructed Mother to get the

child medical attention. Mother stated that the diaper rash was caused by steroids passing an

infection through R.R.’s bowels.

On June 18, 2002, DCS filed a Motion to Extend Trial Home Placement beyond the initial

ninety (90) day period set by the court. As grounds for justifying an extension, DCS cited a return

to the deplorable conditions observed in the home on previous occasions. On June 24, 2002, the

guardian ad litem filed a Motion to Terminate Trial Home Visit citing the failure of the parents to

get timely medical care for S.A.R.’s burn for nearly two weeks and a return to the unsanitary

conditions. On June 25, 2002, Ms. Walters returned to the Reynolds’ home for another follow-up

visit. When she arrived, S.L.R. answered the door, and Ms. Walters observed a burn on the child’s

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arm. Mother was unable to offer an explanation for how S.L.R. was burned, but S.L.R. stated that

she burned her arm on the stove. Ms. Walters also noticed a cut to D.K.R.’s eye that was bleeding

and appeared to have started bruising. Mother stated that D.K.R. scratched her eye on a nail. Upon

further examination, Ms. Walters noticed a car seat with a considerable amount of blood on it, which

Mother explained by stating she had cut her hand on an ashtray in the car. Ms. Walters asked to see

the cut, but Mother could not locate it.

Ms. Walters advised the parents to take D.K.R. and R.R. to see a doctor, but she learned on

June 26, 2002, that the parents had yet to seek medical attention for the children. DCS filed a

Motion to Terminate Trial Home Visit with the juvenile court on June 26, 2002. The juvenile court

entered an order that same day terminating the trial home visit as of that date.

On August 22, 2002, the juvenile court held a hearing on the motions filed by the guardian

ad litem and DCS. Following the hearing, the court entered an order upholding its prior decision to

terminate the trial home visit. The court also implemented a visitation program in the Reynolds’

home, whereby the children were allowed to spend from 3:00 p.m. Tuesday to 8:00 a.m. Thursday

with Mother and Father. During the same month, DCS provided the family with hygiene and

cleaning supplies, as well as safety equipment to protect the children. Ms. Walters stated that, when

she took these supplies to the family, she also spent time teaching them how to use them. The goal,

according to DCS, was to make another attempt to reunite the children with Mother and Father.

Also in August 2002, Mother and Father rented a larger home from Rebecca Iaquinta (“Ms.

Iaquinta”). Ms. Iaquinta stated that, on the second day the Reynolds’ family occupied the house,

DCS workers came to the home to pick up the children. Ms. Iaquinta stated that the house was very

clean, other than a few unpacked boxes, because she had personally cleaned the home before the

family moved in. She also stated that she observed Mother bathing two of the children and giving

them fresh clothes the night before. Throughout the duration of her relationship with the Reynolds’

family, Ms. Iaquinta also attempted to help Mother and Father by showing Mother how to clean,

providing transportation, and helping Mother get her driver’s license. During one session when Ms.

Iaquinta was teaching Mother how to drive, Mother told her that Father had been “messing” with her

since she was eleven years old. Ms. Iaquinta took Mother’s statement to mean that Father had

engaged in inappropriate sexual contact with Mother at an early age.3

On October 24, 2002, another ninety (90) day trial home visitation period was implemented

by the juvenile court. On October 28, 2002, Carol Stokesberry (“Ms. Stokesberry”), a licensed

therapist, and Callie Lane (“Ms. Lane”), both employees of Therapeutic Interventions, Inc., began

working with the Reynolds’ family on reunification. On their first visit, the family was given

personal hygiene items and told the proper way to use the items. On their second visit, Mother and

Father were given budgeting materials along with a calendar to help them keep appointments.

3

Mother was the step-daughter of Father at the time of this alleged abuse. At the time, Father was married to

Ex-W ife.

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Mother missed an appointment with Ms. Stokesberry, but she explained that DCS had called her to

their office on the same day she was scheduled to meet with Ms. Stokesberry.

On November 20, 2002, Ms. Walters once again visited the Reynolds’ home. According to

Ms. Walters, the conditions of the home in November 2002 had deteriorated to a level worse than

in June 2002 when the first trial home visit was terminated. Ms. Walters also took photographs

during the visit to document the condition of the home. On November 20, 2002, Ms. Walters filed

another motion with the juvenile court to terminate the home visits, stating that Mother and Father

were missing scheduled appointments; Mother admitted to her that she was driving the children with

only a learner’s permit and without another licensed driver in the vehicle; soiled clothes were lying

throughout the home; several aerosol bottles were lying within easy reach of the children; the

children had contracted head lice; torn garbage bags and dirty diapers were scattered over the yard;

and the fence had a gap through which the children could get through. The juvenile court entered

an order that same day terminating the second trial home visit.

On February 2, 2003, the juvenile court appointed Child Appointed Special Advocate

(“CASA”) to act on behalf of the children. CASA assigned Loretta Williams (“Ms. Williams”) to

the Reynolds’ children, and she observed their interaction with the foster parents. CASA filed

several reports with the juvenile court after being assigned to the case outlining the children’s

progression in foster care.

In March 2003, Father telephoned Ms. Walters and informed her that Mother had been

arrested for writing worthless checks. Following Mother’s arrest, the gas and electricity were turned

off at the home, and Father remained there by himself. When Ms. Iaquinta went to check on Father,

she found a sight all to familiar to those who have dealt with Mother and Father in the past. Upon

opening the door to the home, Ms. Iaquinta stated that roaches jumped onto her face. After entering

the home, she observed Father sitting in a chair with fast food wrappers all around him; food on the

floor; dirty dishes piled up; and dirty laundry stacked in piles. She called Adult Protective Services

for assistance, but Father refused the offer of help. Ms. Iaquinta then proceeded to wash thirty loads

of laundry for Father. She also looked under the bathroom sink and found it packed full of dirty

feminine hygiene products, and she found dirty diapers shoved into a hole in a baby’s mattress.

Between April 25, 2003, and June 30, 2003, Ms. Stokesberry was asked to evaluate the

Reynolds’ family and provide a recommendation. Ms. Stokesberry recommended that, while Mother

and Father love their children, concerns about the children’s welfare prevented her from advocating

their return to the home. Ms. Stokesberry also recommended that Mother undergo a psychiatric

evaluation. During one visit, Ms. Stokesberry noted that S.A.R. was sitting with Father in an

inappropriate manner. As a result, Jennifer Hall (“Ms. Hall”), an investigator with CPS, conducted

an investigation into the allegations of sexual abuse. She conducted an interview with S.A.R., during

which S.A.R. stated that Father had “hurt her butt with his finger.” S.A.R. then proceeded to pull

down her pants and point to her vaginal area. Ms. Hall also interviewed both Father and Mother, but

Father denied the allegations and did not offer an alternative explanation for the incident.

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Ms. Hall presented her findings to two groups at DCS who found sufficient grounds to

believe Father committed sexual abuse, and Mother had created a substantial risk of sexual abuse.

Ms. Hall sent letters to Mother and Father notifying them of DCS’s findings and included

instructions on how to file for a review of those findings. According to Ms. Hall, Mother and Father

never contested these charges. Following the alleged abuse, S.A.R. was taken to Our Kids for

evaluation. Our Kids issued a report stating there was no medical evidence to substantiate a claim

of sexual abuse, however, Our Kids declined to interview S.A.R. due to her age.

Given the failures by Mother and Father to comply with the original Permanency Plans, Ms.

Walters created additional Permanency Plans, one for each child, on July 2, 2003, setting forth the

sole goal as adoption. DCS felt that, even though Mother and Father had completed the parenting

classes, they failed to implement what they had learned. The new plans did not list any specific

criteria or goals that Mother and Father were required to satisfy. Instead, they simply stated that the

sole goal was adoption of the children. DCS did, however, state in the plans that they would

continue to make reasonable efforts to assist Mother and Father in completing the requirements from

the March 22, 2002, Permanency Plans if they so chose. In addition, Ms. Walters explained the

criteria for termination of parental rights to Mother and Father when she created the new plans, and

both parents signed the document.

On August 8, 2003, Father filed a motion with the juvenile court to have the home visits

reinstated. Father argued that he and Mother were working toward completing the goals of the

permanency plans established by DCS and had established suitable housing for the children. DCS

filed an answer to Father’s motion denying that Mother and Father had made efforts toward

completing the goals set forth in the permanency plans. On August 14, 2003, the juvenile court

entered an order finding that Mother and Father were not in substantial compliance with the goals

outlined in the permanency plans. Specifically, the court found that the parents had completed

parenting classes, but they continued to neglect and failed to properly supervise their children.

Pursuant to section 37-2-403 of the Tennessee Code, the juvenile court also ratified the July 2, 2003,

permanency plans.

Also on August 14, 2003, DCS filed a petition with the juvenile court to terminate the

parental rights of Mother and Father to their children. In the petition, DCS alleged that the following

grounds supported the termination of parental rights in this case: (1) Mother and Father willfully

failed to visit or support their children, other than during the trial home visits, since the children were

placed in DCS custody on February 26, 2002; (2) Mother and Father abandoned the children by

failing to make reasonable efforts toward providing a suitable home; (3) Mother and Father failed

to substantially comply with the permanency plans; (4) the children have been removed from the

home for more than six months, and the conditions leading to removal still exist. In addition, DCS

alleged that it was in the best interest of the children that they not be returned to the custody of

Mother and Father.

In September 2003, the Reynolds’ case was turned over to Sherry Cowan (“Ms. Cowan”),

an adoption case manager with DCS. Ms. Cowan met with Mother and Father on January 27, 2004,

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and discussed with the Reynolds her concerns about Mother driving without a license. Ms. Cowan

observed Mother driving to the visit and saw that her learner’s permit had expired on October 23,

2003. Aware that Father could not obtain a license due to his poor eyesight, Ms. Cowan went to the

Department of Safety and obtained information for Mother on how to secure a driver’s license.

When they met again, Ms. Cowan gave the information to Mother and explained what she needed

to do to obtain a driver’s license. On a subsequent visit to the Reynolds’ home, Ms. Cowan

discussed with the Reynolds the need for psychological and psychosexual evaluations. Ms. Cowan

set up the appointments and offered them transportation, but Mother and Father never showed up.

Ms. Cowan rescheduled the appointment for a later date, but the doctor informed Ms. Cowan that

Mother and Father never made the second appointment either. Ms. Cowan also made sure that

Mother and Father had an opportunity to visit with their children during this period of time. In

visiting the Reynolds’ home after taking over the case, she observed that, since the children have

been removed, the Reynolds are able to keep the home clean and sanitary.

On January 27, 2004, Jeffrey Scott Herman (“Mr. Herman”), a licensed counselor with the

Cookeville Medical Center, interviewed S.R. and S.L.R. at the request of DCS. Mr. Herman visited

with S.L.R. for a brief time, but he continued to treat S.R. over a period of eight sessions. Mr.

Herman diagnosed S.R. as having adjustment disorder. Mr. Herman filed a report with the juvenile

court stating that during his sessions with S.R., who was thirteen (13) years old at the time, they

discussed instances when both Mother and Father physically abused S.R. During one session, S.R.

stated that Mother choked him and threatened to do so again if he told anyone. S.R. also described

one instance when Father sent S.R. to retrieve a can of beer. When S.R. returned with a can of cola,

S.R. stated that Father threw the full can of cola at him. During another session, S.R. indicated that

his foster parents had spanked him, but Mr. Herman did not find S.R.’s story credible or that

anything inappropriate occurred. Mr. Herman reported to the juvenile court that S.R. expressed the

desire to be adopted rather than returning to Mother and Father.

The children’s academic performance has started to improve since they have been removed

from the custody of Mother and Father. Latrisha Smith (“Ms. Smith”), a special education teacher

with the Putnam County School System, had S.L.R., S.A.R., and R.R. in her class while they lived

with Mother and Father. When Ms. Smith was trying to potty train S.A.R., she requested that

Mother and Father send three to four sets of clean clothes to school with S.A.R. The clothes she

received were dirty, and she noted that the girls underwear sent by the parents contained dried feces.

Ms. Smith also noticed that the children were wearing the same clothes for three or four consecutive

days. When she did communicate with Mother and Father, Ms. Smith explained how they would

call and curse her. Since the foster parents have taken custody of the children, their teachers report

that the children are showing marked academic improvement.

On April 29, 2004, the juvenile court held a hearing on DCS’s petition to terminate the

parental rights of Mother and Father. In addition to hearing the above sequence of events conveyed

by several witnesses presented by DCS, the court also reviewed a new Affidavit of Reasonable

Efforts filed by Ms. Cowan and numerous exhibits documenting DCS’s involvement with the

Reynolds’ family. In addition, the court heard testimony from Mother and several church friends

-10-

of the parents. The Reynolds’ friends testified that the church has provided, and will continue to

provide, assistance to the Reynolds’ family. These witnesses offered testimony demonstrating that

Mother and Father are loving and caring parents, and when they visited the Reynolds’ home they

found it to be neat and clean.

After hearing all the testimony and reviewing all the exhibits, the juvenile court entered a

Final Decree of Guardianship on May 24, 2004. The juvenile court found that DCS had proven by

clear and convincing evidence sufficient statutory grounds for termination of the Reynolds’ parental

rights and termination was in the best interest of the children. Both Mother and Father filed notices

of appeal to this Court. Father presents the following issues for our review:

I. Whether the trial court erred in finding that Mr. Reynolds willfully abandoned his five (5)

children, thereby constituting a legal ground for termination of his parental rights; and

II. Whether the trial court erred in ruling that Mr. Reynolds made no reasonable efforts to

provide a suitable home, he and Mrs. Reynolds will not be able to provide the children with

a suitable home, and the conditions leading to the children’s removal still exist.

Mother presents the following issue for our review:

III. Whether the trial court erred in finding that there is little likelihood that the conditions

leading to removal will be remedied at a future date given the lack of a psychological

evaluation performed on Mrs. Reynolds.

Father joins Mother in presenting the following issue for our review:

IV. Whether the trial court erred in finding that the Department of Children’s Services made

reasonable efforts to reunite the children with Mother and Father.

The Department of Children’s Services presents the following issues for our review:

V. Whether clear and convincing evidence existed to support the trial court’s decision as to each

ground relied on by the juvenile court in terminating the Reynolds’ parental rights;

VI. Whether the Reynolds’ argument that the Department of Children’s Services did not exert

reasonable efforts to reunite the children with the parents is without merit; and

VII. Whether sufficient evidence existed to support the trial court’s determination that termination

of the Reynolds’ parental rights was in the children’s best interest.

For the reasons contained herein, we affirm the juvenile court’s decision to terminate the parental

rights of the Appellants.

II. Standard of Review

Both the United States Constitution and the Tennessee Constitution recognize that parents

-11-

have a fundamental right to the care, custody, and control of their children. Santosky v. Kramer, 455

U.S. 745, 753 (1982); Stanley v. Illinois, 405 U.S. 645, 651 (1972); Hawk v. Hawk, 855 S.W.2d 573,

577 (Tenn. 1993); In re Swanson, 2 S.W.3d 180, 187 (Tenn. Ct. App. 1999). This right, however,

is not an absolute right immune from state involvement. In re Drinnon, 776 S.W.2d 96, 97 (Tenn.

Ct. App. 1989). Termination of parental rights is governed by statute in Tennessee. In re Z.J.S. and

M.J.P., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at *9 (Tenn. Ct. App. June 3, 2003).

Section 36-1-113(g) of the Tennessee Code lists the statutory grounds warranting a termination of

parental rights. Tenn. Code Ann. § 36-1-113(g) (2003).

A court of this state may terminate the parental rights of a parent if clear and convincing

evidence exists showing that a statutory ground for termination exists and termination is in the

child’s best interest. Santosky, 455 U.S. at 769–70; In re Valentine, 79 S.W.3d 539, 546 (Tenn.

2002); In re Drinnon, 776 S.W.2d at 97; Tenn. Code Ann. § 36-1-113(c) (2003). The existence of

any one of the grounds found in section 36-1-113(g) is enough to support a trial court’s decision to

terminate parental rights. In re Valentine, 79 S.W.3d at 546; see also In re C.W.W., N.W.W., Z.W.W.,

& A.L.W., 37 S.W.3d 467, 475 (Tenn. Ct. App. 2000). This Court has explained the clear and

convincing evidence standard as follows:

The “clear and convincing evidence” standard defies precise

definition. While it is more exacting than the preponderance of the

evidence standard . . . it does not require such certainty as the beyond

a reasonable doubt standard.

Clear and convincing evidence eliminates any serious or

substantial doubt concerning the correctness of the conclusions drawn

from the evidence. It should produce in the fact-finder’s mind a firm

belief or conviction with regard to the truth of the allegations sought

to be established.

O’Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995) (citations omitted), overruled on

other grounds by In re Swanson, 2 S.W.3d 180 (Tenn. 1999); see also Bingham v. Knipp, Nos.

11281, 02A01-9803-CH-00083, 1999 WL 86985, at *3 (Tenn. Ct. App. Feb. 23, 1999).

We review a trial court’s findings of fact in a parental termination case under the following

standard of review:

Because of the heightened burden of proof required by Tenn.

Code Ann. § 36-1-113(c)(1), we must adapt Tenn. R. App. P. 13(d)’s

customary standard of review for cases of this sort. First, we must

review the trial court’s specific findings of fact de novo in accordance

with Tenn. R. App. P. 13(d). Thus, each of the trial court’s specific

factual findings will be presumed to be correct unless the evidence

preponderates otherwise. Second, we must determine whether the

facts, either as found by the trial court or as supported by the

-12-

preponderance of the evidence, clearly and convincingly establish the

elements required to terminate a biological parent’s parental rights.

In re M.J.B. & M.W.S., Jr., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004) (citations omitted); see also

In re Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003 WL 22794524, at *2 (Tenn. Ct. App.

Nov. 25, 2003). We review a trial court’s conclusions of law in a parental termination case under

a purely de novo standard of review. In re Valentine, 79 S.W.3d at 547. We are also mindful that,

being a non-jury case, the trial judge had the opportunity to observe the witnesses and gauge their

credibility while they testified. “The weight, faith, and credit to be given to any witness’s testimony

lies in the first instance with the trier of fact, and the credibility accorded will be given great weight

by the appellate court.” Weatherford v. Weatherford, No. W1999-01914-COA-R3-CV, 2000 WL

1891057, at *4 (Tenn. Ct. App. Dec. 29, 2000) (citing Town of Alamo v. Forcum James Co., 327

S.W.2d 47, 49 (Tenn. 1959); Sisk v. Valley Forge Ins. Co., 640 S.W.2d 844, 849 (Tenn. Ct. App.

1982)); see also State v. Stewart, 124 S.W.3d 609, 619 (Tenn. Ct. App. 2003).

The issues presented by the parties can be consolidated into two inquiries on appeal: (1)

whether clear and convincing evidence existed to support the termination of the parental rights of

Mother and Father based on one of the statutory grounds found in section 36-1-113(g) of the

Tennessee Code, and (2) if so, whether such termination was in the best interest of the children.

III. Statutory Grounds for Termination under § 36-1-113(g)(1)

On appeal, DCS argues that it proved each ground justifying the termination of the Reynolds’

parental rights by clear and convincing evidence at trial. All of the issues presented by the parents

on appeal argue to the contrary.

A. Abandonment

Abandonment of a child by a parent constitutes a ground justifying termination of parental

rights. Tenn. Code Ann. § 36-1-113(g) (2003). The petition filed by DCS alleged, as two separate

grounds supporting termination of Father’s parental rights, abandonment by Father in the following

forms:

VI

ABANDONMENT BY FAILURE TO VISIT OR SUPPORT

Ronnie Reynolds [has] not contributed to the children’s

support since the children were placed in the Petitioner’s custody on

February 26, 2002, except for the period of time the children were on

trial home visits.

....

Ronnie Reynolds [was] advised on March 27, 2002 that

willful failure to visit or contribute to the support of the children was

grounds for termination of parental rights.

-13-

The Petitioner therefore avers that . . . Ronnie Reynolds [has]

abandoned [his children] in that [he has] willfully failed to contribute

to the support or make reasonable payments towards the support of

said children for more than four (4) consecutive months prior to the

filing of this Petition.

....

VII

ABANDONMENT BY FAILURE TO ESTABLISH

SUITABLE HOME

For a period of four (4) months following removal, the DCS has made

reasonable efforts to assist parents . . . to establish a suitable home for

the children, but the parents have made no reasonable efforts to

provide a suitable home and have demonstrated a lack of concern for

the children to such a degree that it appears unlikely that . . . Ronnie

Reynolds will be able to provide a suitable home for the children at

an earlier date. Therefore, Petitioner avers that the Defendants . . .

have abandoned [their children].

On appeal, Father argues that “abandonment” must encompass an analysis into a parent’s ability to

provide financial support. Father asserts that the evidence presented at trial established that both

parents were disabled and only possessed the barest of means.4 In addition, he directs our attention

to the fact that the record is devoid of any evidence showing DCS petitioned the juvenile court for

an award of support for the children.

In the portion of the order addressing the termination of Father’s parental rights, the trial

court made, in relevant part, the following findings:

17. The juvenile court found that the DCS made reasonable

efforts to prevent removal of the children or the circumstances

of the children’s situation prevented reasonable efforts from

being made prior to the children’s removal.

4

In presenting his second issue, Father outlines the family’s income in his brief as follows:

It is also uncontroverted that the Reynolds have adequate funds to maintain

a suitable home. Sherry Cowan’s testimony (Adoption Case W orker for DCS) was

that the Reynolds received $545.00 per month payments for the oldest child, [S.R.]

as a result of his mother’s disability, $408.00 each for both Ronnie Reynolds . . .

and Cynthia Reynolds [sic] disability, $398.00 per month in food stamps and

$242.00 from Families First in Putnam County, for a monthly, non-taxable income

totalling [sic] over $2,000.00. Though the family has medical needs, some of a

serious nature, all of the family members are on TennCare for hospitalization.

Father seemingly presents two contradictory arguments: (1) The parents were financially unable to provide financial

support for the children while in DCS custody, but (2) they could financially support the children and provide a suitable

home if the children are returned to their custody.

-14-

18. Prior to the removal of these children from their parents on

February 26, 2002, the Department of Children’s services

made extensive reasonable efforts to prevent the removal of

the children as is evidenced by the Affidavit of Reasonable

Efforts.

19. The reasonable efforts by DCS prior to removal included

Department of Health Home Nurse Visits and Child Health

and Development (CHAD) services since September 1998,

“Network” services since 1998, Advocacy Resource

Corporation (ARC) services in the Spring of 2000, Tennessee

Early Intervention Services (TEIS), Child Protective Services’

(CPS) Plans of Action, CPS follow-up services July 2000

through January 2001 and Family Support Services (FSS)

January and February 2002.

20. For a period of four (4) months following removal, from

February 26, 2002 to June 26, 2002, DCS made reasonable

efforts to assist the parents, Cynthia Lynn Bradham Reynolds

and Ronnie Reynolds, to establish a suitable home for the

children, but the parents made no reasonable or sustained

efforts to provide a suitable home and have demonstrated a

lack of concern for the children to such a degree that it

appears unlikely that Cynthia Lynn Bradham Reynolds or

Ronnie Reynolds will be able to provide a suitable home for

the children at an early date.

21. The reasonable efforts by DCS in the first four months

include Department of Health Home Nurse Visits, Child

Health and Development (CHAD) services, Tennessee Early

Intervention Services (TEIS), Kids Putnam, Parenting Classes

through the Stephens Center, providing transportation to

doctors’ appointments, IEP meetings, visits, driver testing

center and other appointments, Foster Mother’s parenting

mentoring assistance to Ms. Reynolds, Kids First services,

DCS Case Manager, Educational Specialist and Educational

Attorney assistance to parents with children’s special

education needs, placing the children back in the parents’

home on a trial home visit and DCS case manager suggestions

on keeping their home clean and obtaining medical care for

the children.

22. The lack of reasonable efforts by the parents . . . included

their not cooperating with service providers, not being home

during scheduled visits by service providers, not consistently

maintaining a clean and sanitary home, sending the children

to school dirty and in dirty clothes, not obtaining necessary

-15-

medical treatment in a timely manner, leaving sippy cups and

bottles out within reach of the children with clabbered milk in

them and failing to change the babies’ diapers frequently

enough, all of which ultimately resulted in the Court

terminating the [trial home visit] of the children in the

parents’ home on June 26, 2002, exactly four months after

they were placed in DCS custody, despite efforts by DCS to

maintain the trial home visit by first filing a motion to extend

the trial home visit. Photographs taken on May 23, 2002

document the unacceptable condition of the home.

23. Therefore, the Court finds that . . . Defendants . . . have

constructively abandoned [their children].5

24. DCS continued to make reasonable efforts to assist the

parents . . . in establishing a suitable home for the children, in

complying with the parents’ responsibilities in the

permanency plans and in alleviating the conditions that

necessitated foster care and other conditions that prevent the

return of the children to the parents, even after the Petition to

Terminate Parental Rights was filed on August 14, 2003.

25. Some reasonable efforts by DCS continued up to the date of

this hearing and included continuing Department of Health

Home Nurse Visits, Child Health and Development (CHAD)

services, Tennessee Early Intervention Services (TEIS), Kids

Putnam, Advocacy Resource Corporation (ARC) mentoring

for [S.R], overnight visitation with the children in the parents’

home, transporting children from school to parents’ home and

back to school, providing Ms. Reynolds with driver study

guide, purchase by DCS of cleaning supplies and safety

equipment, weekly discussions by the DCS case manager

about personal hygiene and house keeping, offer of marriage

counseling, Therapeutic Interventions, placing the children on

a second trial home visit, Vanderbilt Center of Excellence

evaluation for [S.A.R.], Youth Villages Intercept in-home

counseling for [S.A.R.].

26. The Court finds that the reasonable efforts by DCS, prior to

removal and from removal to the date of this hearing, go

above and beyond what is required and that [parents] have

been offered or provided every reasonable service.

5

By citing to the trial court’s use of the phrase “constructive abandonment,” we do not mean to imply that

abandonment of that nature exists under the definition found in section 36-1-113(g) of the Tennessee Code. We merely

make reference to it here for purposes of setting forth the trial court’s treatment of the abandonment issue. Our treatment

of the abandonment issue is discussed infra.

-16-

....

46. Cynthia Lynn Bradham Reynolds and Ronnie Reynolds have

not paid any portion of the children’s substitute physical care

and maintenance when financially able to do so.

47. DCS has proven all of the grounds set out in its Petition,

except for abandonment by willful failure to support the

children for the four months prior to the filing of the petition.

DCS put on no proof as to this ground and conceded this

ground. Both parents receive disability checks and even

though their income is limited each could have supplied some

in-kind support for the children, in the form of clothing and

supplies, but failed to do so.

....

1. That the Defendant, Ronnie Reynolds, Sr., has willfully

abandoned the minor children . . . in that for the four (4)

months following removal DCS has made reasonable efforts

to assist the parent in establishing a suitable home for the

children, but the parent has made no reasonable effort to

provide a suitable home and has demonstrated a lack of

concern for the children to such a degree that it appears

unlikely that he will be able to provide a suitable home at an

early date; that he has been substantially non-compliant with

the statement of responsibilities in the permanency plans; that

the children have been removed from the custody of the

parents more than six (6) months; that the conditions that led

to the children’s removal still exist or other conditions exist

which would in all probability subject the children to further

neglect or abuse if returned home; there is little likelihood

that these conditions will be remedied at an earlier date so that

the children could be returned to the Defendant in the near

future; that the continuation of the parent/child relationship

greatly diminishes the children’s chances of early integration

into a stable and permanent home; and that it is in the best

interest of the children that all the parental rights of said

Defendant to said children be forever terminated; and that the

complete custody, control, and guardianship of said children

be awarded to the State of Tennessee, Department of

Children’s Services, with the right to place said children for

adoption and to consent to said adoption in loco parentis.

Abandonment, as that term is used in section 36-1-113(g)(1) as a ground for termination of

parental rights, is defined, in relevant part, as follows:

-17-

(1)(A) “Abandonment” means, for purposes of terminating the

parental or guardian rights of parent(s) or guardian(s) of a child to

that child in order to make that child available for adoption, that:

(i) For a period of four (4) consecutive months

immediately preceding the filing of a proceeding or

pleading to terminate the parental rights of the

parent(s) or guardian(s) of the child who is the subject

of the petition for termination of parental rights or

adoption, that the parent(s) or guardian(s) either have

willfully failed to visit6 or have willfully failed to

support7 or have willfully failed to make reasonable

payments toward the support of the child;

(ii) The child has been removed from the home of the

parent(s) or guardian(s) as the result of a petition filed

in the juvenile court in which the child was found to

be a dependent and neglected child, as defined in §

37-1-102, and the child was placed in the custody of

the department or a licensed child-placing agency, that

the juvenile court found, or the court where the

termination of parental rights petition is filed finds,

that the department or a licensed child-placing agency

made reasonable efforts to prevent removal of the

child or that the circumstances of the child’s situation

prevented reasonable efforts from being made prior to

the child’s removal; and for a period of four (4)

consecutive months following the removal, the

department or agency has made reasonable efforts to

assist the parent(s) or guardian(s) to establish a

suitable home for the child, but that the parent(s) or

guardian(s) have made no reasonable efforts to

provide a suitable home and have demonstrated a lack

of concern for the child to such a degree that it

6

A parent has “willfully failed to visit” his or her child when he or she “fail[ed], for a period of four (4)

consecutive months, to visit or engage in more than token visitation.” Tenn. Code Ann. § 36-1-102(1)(E) (2003).

“‘[T]oken visitation’ means that the visitation, under the circumstances of the individual case, constitutes nothing more

than perfunctory visitation or visitation of such an infrequent nature or of such short duration as to merely establish

minimal or insubstantial contact with the child[.]” Tenn. Code Ann. § 36-1-102(1)(C) (2003).

7

A parent has “willfully failed to support” his or her child when he or she “fail[ed], 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)(D) (2003). “‘[T]oken support’ means that support, under the

circumstances of the individual case, is insignificant given the parent’s means[.]” Tenn. Code Ann. § 36-1-102(1)(B)

(2003).

-18-

appears unlikely that they will be able to provide a

suitable home for the child at an early date[.]

Tenn. Code Ann. § 36-1-102(1)(A)(i)–(ii) (2003).

We agree with Father that DCS failed to show by clear and convincing evidence that section

36-1-102(1)(A)(i) of the Tennessee Code was met in this case. The court below apparently held that

Father abandoned his children by willfully failing to support them when, according to the juvenile

court, he failed to provide “in-kind support.” We cannot agree. The record is completely devoid,

as the trial court correctly noted, of any evidence showing whether DCS petitioned for support

payments. The record also reveals that none of the Permanency Plans drafted by DCS mention

Father’s responsibility to provide financial support to the children while they were in DCS custody,

nor are we able to locate any order issued by the juvenile court instructing the parents to pay

support.8 See In re M.J.B. & M.W.S., Jr., 140 S.W.3d 643, 654–655 (Tenn. Ct. App. 2004). The

juvenile court recognized this failure on the part of DCS, but the court reached an incorrect result

by relying on evidence that did not exist in the record. Accordingly, we find that the juvenile court

erred in finding that Father willfully abandoned his children, as that term is defined in section 36-1-

102(1)(A)(i) of the Tennessee Code.

Our inquiry, however, cannot end with the failure of DCS to properly prove abandonment

under section 36-1-102(1)(A)(i) of the Tennessee Code. Father’s position on appeal focuses entirely

upon the definition of abandonment found in section 36-1-102(1)(A)(i), and he overlooks the fact

that the definition of “abandonment” also encompasses situations where the parents “have made no

reasonable efforts to provide a suitable home and have demonstrated a lack of concern for the child

to such a degree that it appears unlikely that they will be able to provide a suitable home for the child

at an early date.” Tenn. Code Ann. § 36-1-102(1)(A)(ii) (2003). It is apparent from reading the

trial court’s additional findings that the court also applied the definition of abandonment found in

section 36-1-102(1)(A)(ii) of the Tennessee Code. We find that the preponderance of the evidence

supports the juvenile court’s findings of fact relevant to the issue of abandonment. Additionally,

those findings clearly and convincingly demonstrate that DCS made reasonable efforts to prevent

removal prior to removing the children from the home. These findings also clearly and convincingly

establishes that DCS made reasonable efforts for a period of four consecutive months following

removal in assisting Father in creating a suitable home for the children.9 As for the efforts made by

8

W e do not mean to imply that the juvenile court must order support before a parent incurs this obligation, nor

do we imply that the obligation to support a child in DCS custody must be stated in every Permanency Plan. “In

Tennessee . . . the obligation to pay support exists even in the absence of a court order to do so.” State v. Culbertson,

No. M 2003-10700-COA-R3-PT, 2004 W L 865843, at *8 (Tenn. Ct. App. Apr. 21, 2004) (citing State v. Manier, No.

01A01-9703-JV-00116, 1997 W L 675209, at *5 (Tenn. Ct. App. Oct. 31, 1997)). In this case, however, we cannot say

that Father willfully failed to support his children because the record is completely devoid of any evidence which would

support such a conclusion.

9

The Reynolds have also raised the issue of whether DCS engaged in reasonable efforts in attempting to reunite

the Reynolds with their children. We discuss the reasonable efforts used by DCS in that regard below.

-19-

Father, the preponderance of the evidence supports the juvenile court’s findings that Father did not

engage in reasonable efforts. These facts clearly and convincingly demonstrate that Father has not

made reasonable efforts to provide a suitable home, and he has demonstrated a lack of concern for

his children making it unlikely that he will be able to provide a suitable home in the future.

Accordingly, we affirm the trial court’s finding that Father abandoned his children, as that term is

defined in section 36-1-102(1)(A)(ii) of the Tennessee Code.

B. Persistent Conditions

As an additional ground for supporting termination of the Reynolds’ parental rights, DCS

alleged in its petition section 36-1-113(g)(3), also known as the “persistent conditions” ground,

which provides:

(g) Initiation of termination of parental or guardianship rights may be

based upon any of the following grounds:

....

(3)(A) The child has been removed from the home of the parent or

guardian by order of a court for a period of six (6) months and:

(i) The conditions which led to the child’s removal or other

conditions which in all reasonable probability would cause the child

to be subjected to further abuse or neglect and which, therefore,

prevent the child’s safe return to the care of the parent(s) or

guardian(s), still persist;

(ii) There is little likelihood that these conditions will be remedied at

an early date so that the child can be safely returned to the parent(s)

or guardian(s) in the near future; and

(iii) The continuation of the parent or guardian and child relationship

greatly diminishes the child’s chances of early integration into a safe,

stable and permanent home.

Tenn. Code Ann. § 36-1-113(g)(3) (2003). In order to terminate parental rights based upon this

ground, DCS must present clear and convincing evidence showing that each of these factors

exist. In re Valentine, 79 S.W.3d 539, 550 (Tenn. 2002).

The juvenile court found, and the record clearly establishes, that the children have been

removed from the home by court order since February 26, 2002, more than six months. Turning to

the first statutory factor, the original conditions leading to the children’s removal from the home was

the arrival of Ms. Reynolds at the parent’s home on February 24, 2002, to find that S.A.R. had been

allowed to wander from the home, and the unsanitary condition of the home itself. Regarding the

conditions necessitating removal, the juvenile court made the following findings:

38. The conditions which led to removal of the children from the

home of [the parents] still exist and other conditions exist

-20-

which in all probability would cause the children to be subject

to further abuse and/or neglect, making it unlikely that the

children could be returned to either parent in the near future.

39. These conditions are that: [the parents] have failed to

maintain a safe and sanitary home when the children are in

the home; they have failed to properly supervise the children,

placing the children at risk of harm; they have failed to obtain

appropriate medical treatment for the children on a timely

basis; [Mother] was recently incarcerated for writing

worthless checks; despite many services provided by [DCS],

including Child Health and Development Services,

Therapeutic Interventions, Kids First and ARC, [the parents]

have continued to grossly neglect their children when the

children were in their care.

....

50. The Court found the testimony of Rebecca Iaquinta to be very

credible. . . .During a driving lesson, Ms. Iaquinta was

discussing with Cynthia Reynolds how difficult it was for her

having children at such a young age. Ms. Reynolds stated that

Ronnie Reynolds, Sr. had been “...messing with me since I

was 11 years old.” Under the context of the conversation, Ms.

Iaquinta believed that Ms. Reynolds was talking about sexual

contact. The Court interprets Ms. Reynold’s comment to

mean that Mr. Reynolds had sexual contact with her

beginning at the age of eleven. During her testimony, Cynthia

Reynolds offered no testimony which would refute Ms.

Iaquinta’s interpretation of her comment. Ronnie Reynolds

did not testify. Cynthia Reynolds was Ronnie Reynold’s

stepdaughter at the time the sexual contact purportedly

occurred and resided in the home with him and her mother.

DCS did not allege in its Petition that Ronnie Reynolds

committed severe sexual abuse, however, his alleged sexual

abuse of Cynthia Reynolds as a child certainly constitutes

conditions which in all reasonable probability would cause

the children before the Court at this time to be exposed to

similar abuse or neglect, therefore, preventing the children’s

safe return to the parents. . . .

In her brief, Mother does not attack the juvenile court’s findings as to this factor. Father, however,

argues in his second issue on appeal that the parent’s home is currently clean and suitable enough

for custody of the children to be restored in the parents. Father argues that, if this were not true, DCS

-21-

would not have allowed the children to be placed back in the home for two trial visits. Father also

states that the parents presently have suitable funds with which to provide for the children’s needs.

The record is replete with evidence which demonstrates that, every time the children were

returned to the parent’s home, the conditions deteriorated to an unacceptable level. Additionally,

the trial court was concerned with the potential for physical and sexual abuse to recur if the children

were returned to the home.10 Accordingly, we find that the preponderance of the evidence supports

the trial court’s factual findings regarding this factor. We further find that this evidence constitutes

clear and convincing proof of “other conditions which in all reasonable probability would cause the

child to be subjected to further abuse or neglect.” Tenn. Code Ann. § 36-1-113(g)(3)(A)(i) (2003);

see also In re S.Y., J.Y., and D.Y., 121 S.W.3d 358, 369 (Tenn. Ct. App. 2003) (stating that, even

though present conditions have been remedied, “other conditions” may still exist which satisfy this

factor).

We now turn to Mother’s issue asserting that the juvenile court erred in finding that the

remaining two elements in section 36-1-113(g)(3)(A) were present in this case. Regarding the

second statutory element, the juvenile court made the following findings:

43. Cynthia Lynn Bradham Reynolds and Ronnie Reynolds’

mental and/or emotional status would be detrimental to the

children and/or prevent them from effectively providing care

and supervision for the children.

44. Cynthia Lynn Bradham Reynolds and Ronnie Reynolds have

failed to effect a lasting adjustment after reasonable efforts by

available social agencies for such a duration of time that

lasting adjustment does not reasonably appear possible.

....

48. The Defendants argued that the Court should consider the

condition of their home now, even though the children are not

in their home, and give them another chance to show that they

can properly parent the children. The Court does not find

merit in this argument and finds no reason to believe the

children could be safely and permanently returned to the

parents in the foreseeable future based upon the testimony of

witnesses. . . .

10

W e are mindful that the record does not indicate whether Father was ever formally charged with either

physically or sexually abusing any of his children. However, the record contains sufficient evidence to suggest that abuse

was occurring. The evidence presented at trial also indicated that Father had an inappropriate sexual relationship with

Mother, also his step-daughter, when she was a child. It was appropriate for the juvenile court to consider these facts

in determining whether DCS carried its burden as to this factor.

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In support of her argument that the juvenile court erred in so finding, Mother points to the fact that

there was “no information concerning psychological intervention that could have made it possible

for these children to be returned to the mother.” Given the lack of such evidence, Mother argues that

the juvenile court was without sufficient evidence with which to make a finding regarding the second

element.

The evidence presented below clearly and convincingly shows that DCS has proven the

second factor found in section 36-1-113(g)(3) of the Tennessee Code. The parents have engaged in

a recurring pattern of allowing the home to deteriorate to abysmal conditions each and every time

the children were in their custody. Although the parents completed parenting classes, the evidence

presented at trial demonstrated that the parents have continuously failed to apply what they have

learned. Mother and Father emphasize in their briefs that Father is disabled by poor eyesight which

limits his ability to maintain the home. However, the testimony offered at trial by DCS

overwhelmingly indicates that Father is able to participate to some degree in maintaining the home.

Numerous social services personnel who visited the home stated that they had personally seen Father

cleaning the house and children. Other witnesses conveyed that they had personally observed Father

fixing cars and lawnmowers, painting, and giving directions while traveling in an automobile.

Mother argues that her failure to apply the skills she acquired during these parenting classes

is due to her inability to learn these skills. Mother asserts that DCS failed to provide her with a

psychological examination which would have identified this problem, and the record is devoid of

any evidence regarding her mental status. For the reasons discussed below in our discussion of

DCS’s reasonable efforts in reuniting this family, we find Mother’s argument in this regard to be

without merit. We note here, however, that the evidence presented at trial also showed that the

Reynolds’ home would occasionally be “immaculate” when social services agencies returned to

follow-up on their progress, which discredits Mother’s assertion that her low mental functioning

prevented her from keeping a clean home. Despite the lack of evidence as to Mother’s mental

abilities, the record contains sufficient evidence which clearly and convincingly supports the trial

court’s conclusion that, if the children were returned to the parents, the conditions which led to the

termination of their parental rights would begin anew. See State v. R.S.P., No. E2002-00442-COA-

R3-JV, 2002 WL 31431496, at *4 (Tenn. Ct. App. Oct. 31, 2002); In re Baker, No. W1998-00606-

COA-R3-CV, 1999 WL 1336044, at *4–5 (Tenn. Ct. App. Dec. 28, 1999).

Turning to the third statutory factor, Mother argues that the juvenile court erred in finding

that “the continuation of the parent or guardian and child relationship greatly diminishes the

children’s chance of an early integration into a stable and permanent home.” See Tenn. Code Ann.

§ 36-1-113(g)(3)(iii) (2003). In support of this argument, Mother asserts that DCS presented no

proof that, if appropriate social services were provided to the family in the future, the children could

not be safely returned to the Reynolds’ home.

Mother and Father have had from 1998 to present to remedy the condition of the home.

During this time, Mother and Father were unable to maintain the children’s environment at an

appropriate level, even with help from numerous social services agencies. We find no basis in

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Mother’s argument that these conditions will be remedied in the future. See In re Baker, 1999 WL

1336044, at *5. The juvenile court gave great weight to the credibility of the numerous witnesses

presented by DCS, especially the children’s teachers, representatives of various agencies, and mental

health professionals, whose testimony indicated that continuing the parent/child relationship would

be detrimental to the children’s chances of success in achieving stability and permanency in the

future. We find that the evidence contained in the record clearly and convincingly supports the trial

court’s finding that the third factor found in section 36-1-113(g)(3)(A)(iii) of the Tennessee Code

has been satisfied.

C. Failure to Comply with the Permanency Plans

We also note that Mother and Father have intertwined, within the issues addressed above,

another issue, even though it is not stated as such. The parents argue, in essence, that the juvenile

court also erred in finding that the parents failed to comply with the Permanency Plans. Since we

affirm the trial court’s holdings regarding the grounds for termination discussed above, we do not

need to discuss the merits of this issue. See In re Baker, No. W1998-00606-COA-R3-CV, 1999 WL

1336044, at *3 (Tenn. Ct. App. Dec. 28, 1999); see also In re Valentine, 79 S.W.3d 539, 546 (Tenn.

2002) (stating that DCS must only prove one of the grounds found in section 36-1-113(g) of the

Tennessee Code by clear and convincing evidence in order to justify termination of parental rights).

D. Reasonable Efforts by DCS

We now turn to the final issue raised by Mother and Father collectively in this matter. Both

parents assert that the trial court erred in finding that DCS made reasonable efforts at reuniting the

children with their parents. Before the parental rights of a parent may be terminated, the court must

make the following finding:

(a) At any proceeding of a juvenile court, prior to ordering a child

committed to or retained within the custody of the department of

children’s services, the court shall first determine whether reasonable

efforts have been made to:

(1) Prevent the need for removal of the child from such child’s

family; or

(2) Make it possible for the child to return home.

(b) Whenever a juvenile court is making the determination required

by subsection (a), the department has the burden of demonstrating

that reasonable efforts have been made to prevent the need for

removal of the child or to make it possible for the child to return

home.

Tenn. Code Ann. § 37-1-166 (2003); see also In re C.M.M. & S.D.M., No. M2003-01122-COA-R3-

PT, 2004 WL 438326, at *5–8 (Tenn. Ct. App. Mar. 9, 2004). To aid the court in making this

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determination, DCS is required by statute to submit an affidavit outlining the efforts made on its part

in reuniting the family, which it did in this case. Tenn. Code Ann. § 37-1-166(c) (2003). The trial

court’s findings regarding the reasonable efforts made by DCS in this case have already been

provided, in relevant part, above.

On appeal, Mother and Father argue that DCS failed to make reasonable efforts because

Mother was never given appropriate psychological testing. DCS counters by asserting that this issue

is without merit. The Reynolds argue that, had DCS done so, the department would have been able

to (1) determine that Mother’s limited psychological development was the reason she was unable

to comply with the requirements of the Permanency Plan, and (2) provide Mother with additional

assistance in order to meet the goals of the Permanency Plan, ultimately enabling the children to be

returned to the home.

In support of this position, Mother and Father point to Mother’s testimony at trial showing

she did not graduate from high school and, while in school, was in special education classes. She

also directs our attention to the fact that Ms. Stokesberry recommended that Mother undergo a

psychological evaluation in May 2003, but this test was never performed. Additionally, Mother and

Father assert that Ms. Walters never ascertained why Mother was not learning the parenting skills

DCS required her to implement, and the Permanency Plans never mention Ms. Stokesberry’s

recommendation. In fact, Ms. Walters testified that she had no knowledge of Ms. Stokesberry’s

recommendation. It was not until Ms. Cowan took over the case, and shortly before the petition to

terminate parental rights had been filed, that she asked Mother to undergo a psychological

evaluation.

As additional support for their argument, Mother and Father rely on our holding in In re

M.E., M.E., R.B, M.B. S.B., No. M2003-00859-COA-R3-PT, 2004 WL 1838179 (Tenn. Ct. App.

Aug. 16, 2004). In that case, DCS provided the parent with a psychological evaluation, but they

failed to follow up with counseling. Id. at *10. In finding that DCS failed to make reasonable

efforts, we stated:

Here, the record shows that the Department provided numerous

services; however, those services were of little consequence due to

the Department’s failure to provide the most critical, indeed the most

obvious service required by Mother, psychological counseling.

Id. We find that this holding is not controlling in this case. Ms. Cowan admitted at trial that she

wanted Mother to undergo a psychological evaluation because of Mother’s apparently low mental

functioning, and she wanted to ensure that every possible avenue of aid was provided. However, Ms.

Cowan, while meeting with the parents in February 2004, requested that Mother undergo a

psychological evaluation, but Mother declined. Mother testified at trial that she refused to take the

test relying on the advice of her lawyer. Accordingly, we reject Mother’s contention that DCS did

not make reasonable efforts by failing to provide her with a psychological evaluation.

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IV. Best Interest of the Children

We now address the final issue raised by DCS on appeal. In addition to proving by clear and

convincing evidence the existence of one of the statutory grounds for termination, DCS must also

prove that terminating a parent’s parental rights is in the best interest of the child. Tenn. Code. Ann.

§ 36-1-113(c)(2) (2003). The legislature has instructed the courts to conduct a best interest analysis

in a parental termination case as follows:

(i) In determining whether termination of parental or guardianship

rights is in the best interest of the child pursuant to this part, the court

shall consider, but is not limited to, the following:

(1) Whether the parent or guardian has made such adjustment of

circumstance, conduct, or conditions as to make it safe and in the

child’s best interest to be in the home of the parent or guardian;

(2) Whether the parent or guardian has failed to effect a lasting

adjustment after reasonable efforts by available social services

agencies for such duration of time that lasting adjustment does not

reasonably appear possible;

(3) Whether the parent or guardian has maintained regular visitation

or other contact with the child;

(4) Whether a meaningful relationship has otherwise been established

between the parent or guardian and the child;

(5) The effect a change of caretakers and physical environment is

likely to have on the child’s emotional, psychological and medical

condition;

(6) Whether the parent or guardian, or other person residing with the

parent or guardian, has shown brutality, physical, sexual, emotional

or psychological abuse, or neglect toward the child, or another child

or adult in the family or household;

(7) Whether the physical environment of the parent’s or guardian’s

home is healthy and safe, whether there is criminal activity in the

home, or whether there is such use of alcohol or controlled substances

as may render the parent or guardian consistently unable to care for

the child in a safe and stable manner;

(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) (2003). The trial court is not required to find that every statutory

ground exists in a given case before determining that termination is in the child’s best interest. State

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v. T.S.W., No. M2001-01735-COA-R3-CV, 2002 WL 970434, at *3 (Tenn. Ct. App. May 10, 2002).

The juvenile court found that terminating the parental rights of Mother and Father was in the

best interest of the children. The record indicates that the parents have failed to adjust the conditions

of the home in order to make it safe for the children to return. Tenn. Code Ann. § 36-1-113(i)(1)

(2003). They have also failed to adjust the home environment despite the involvement of numerous

social services agencies over a period of five years, and it does not appear that a lasting adjustment

will occur in the future. Tenn. Code Ann. § 36-1-113(i)(2) (2003). While several witnesses did

testify that the parents loved their children, the proof established that Mother and Father failed to

appropriately interact with their children to foster their development. Ms. Billings expressed

concerns that the children were not given proper stimulation by the parents to aid in their

development. Tenn. Code Ann. § 36-1-113(i)(4) (2003). The testimony of the children’s teachers

and the counselors who interviewed the children indicates that the children have improved

emotionally and academically since being removed from the custody of their parents. Tenn. Code

Ann. § 36-1-113(i)(5) (2003).

Ms. Hall and Ms. Stokesberry testified about concerns that Father had sexually abused S.A.R.

Ms. Iaquinta testified concerning Mother’s statements of alleged sexual abuse by Father at an early

age. The juvenile court also heard testimony indicating that both Father and Mother physically

abused some of their children. Ms. Walters and Ms. Smith testified concerning burns to S.A.R.’s

foot. Ms. Walters testified to finding a burn on S.L.R.’s arm during one visit and a cut to D.K.R.’s

eye. Mr. Herman testified concerning statements made by S.R. during a therapy session concerning

physical abuse inflicted by both Mother and Father. Tenn. Code Ann. § 36-1-113(i)(6) (2003). The

evidence overwhelmingly showed that the physical environment of the home deteriorates to an

unsafe and unsanitary level every time the children are present. Tenn. Code Ann. § 36-1-113(i)(7)

(2003). Finally, we find sufficient evidence in the record to support the trial court’s finding that the

parent’s mental and/or emotional status was detrimental to the children so as to prevent the parents

from providing safe, stable care and supervision for the children. Tenn. Code Ann. § 36-1-113(i)(8)

(2003). Based on our review of the entire record, we find that the evidence presented at trial

supports the juvenile court’s finding that termination of the Reynolds’ parental rights was in the best

interest of the children.

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V. Conclusion

For the reasons stated above, we affirm the juvenile court’s decision to terminate the parental

rights of Ronnie Reynolds and Cynthia Lynn Bradham Reynolds as to the five children involved in

this case. Costs of this appeal are taxed to the Appellants, Ronnie Reynolds and Cynthia Lynn

Bradham Reynolds, for which execution may issue if necessary.

___________________________________

ALAN E. HIGHERS, JUDGE

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