The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
September 19, 2002 Session
IN THE MATTER OF: R.C.V. and O.V., CHILDREN UNDER THE AGE OF 18
YEARS
A Direct Appeal from the Juvenile Court for Shelby County
No. J2905 The Honorable George Blancett, Special Judge
No. W2001-02102-COA-R3-JV - Filed November 18, 2002
This is a termination of parental rights case on appeal for the second time. This Court in the
first appeal reversed the order of the juvenile court terminating the parental rights of the parties
primarily because the trial court failed to provide counsel to the parties pursuant to Rule 39, Tenn.
R. Juv. P. On remand, the juvenile court found clear and convincing evidence justifying termination
of parental rights pursuant to the applicable statutes and that termination was in the children’s best
interests. The juvenile court also held that the appointment of a special judge in this instance was
not unconstitutional nor was the parent denied due process in the termination proceeding. As
appealed, we affirm.
Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Affirmed
W. FRANK CRAWFORD , P.J., W.S., delivered the opinion of the court, in which DAVID R. FARMER ,
J. and HOLLY KIRBY LILLARD, J., joined.
Webb A. Brewer, Barbaralette G. Davis, Nancy Percer Kessler, Memphis Area Legal Services, Inc.,
For Appellant, Cynthia Valle
Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond, Assistant Attorney
General, ForAppellee, Tennessee Department of Childrne's Services
OPINION
The parents of the two children, O. V. and R. V., are Gilberto and Cynthia Valle. O. V. was
born on May 11, 1995. On June 6, 1995, O. V. was found to be dependent and neglected and placed
in the custody of the Tennessee Department of Children’s Services (DCS). R. V. was born on July
6, 1996, and on July 9, 1996, she was placed in DCS custody as a dependent and neglected child.
Both children were placed in foster care, and court approved plans were adopted for both with the
goal of reunification of the family. On March 4, 1997, Court Appointed Special Advocate (CASA)
was appointed after DCS recommended that the children stay in foster care. On February 20, 1998,
CASA filed a petition for termination of parental rights pursuant to T.C.A.§ 36-1-113(c) alleging
that: (1) the children had been abandoned pursuant to T.C.A. § 36-1-113(g)(1) as defined in T.C.A.
§ 36-1-102; (2) pursuant to T.C.A. §§ 36-1-113(g)(2) and 37-2-403 appellants failed to substantially
comply with the plans of care; (3) pursuant to T.C.A. § 36-1-113(g)(3)(A)(I-iii) the children were
removed from appellants' home by court order for a period of six months, and that the conditions that
led to removal persist with little likelihood of an early remedy; and (4) that termination was in the
best interest of the children. The case was heard on May 28, 1998, by Special Judge George
Blancett. At the conclusion of all proof, the trial court ruled from the bench that the parental rights
of Gilberto and Cynthia Valle would be terminated. The order terminating parental rights was
entered June 24, 1998. On Appeal, this Court reversed the order of the trial court and remanded the
case for a second trial. Our decision was based primarily on the trial court’s failure to inform the
father, Gilberto Valle, of his right to an attorney. See In re Valle, 31 S.W.3d 566 (Tenn. Ct. App.
2000).
Before the second trial, the children’s father, Gilberto Valle, died. Since his death, the
mother, Cynthia Valle (“Ms. Valle,” or “Appellant”), has proceeded on this matter alone. Prior to
the second trial, a supplemental report and recommendation was filed by the court-appointed
guardian ad litem.1 In preparing the supplemental report, the guardian ad litem reviewed the records
of the Juvenile Court and the DCS, discussed the case with Ms. Valle, and visited with the children.2
After these interviews, the guardian ad litem renewed his previous finding that “the mother appears
to care and want custody of the children, but [she does] not seem to be in a position to take care of
the minor children or to provide a suitable residence for her or her children.” The guardian ad litem
recommended that custody remain with DCS and that Ms. Valle’s parental rights be terminated.
The second trial took place in the Juvenile Court of Memphis and Shelby County before
Special Judge George Blancett on June 7, 2001. At the outset of the trial, Memphis Area Legal
Services (MALS), who represented Ms. Valle, objected to Special Judge Blancett hearing the case.
MALS argued that Special Judge Blancett’s appointment was not consistent with Rule 11 of the
Tennessee Supreme Court or, alternatively, that T.C.A. § 17-2-118(f) was unconstitutional. The
juvenile court overruled MALS’ objection and the case proceeded.3
1
Before the first trial, Judge M cDowell agreed that an a ttorney should be appo inted to represe nt Ms. Valle due
to her history of mental illness an d that a guardian ad litem was needed to represent the needs of the children. On April
29, 1998, orders were entered appointing an attorney ad litem to protect the lawful rights of Ms. Valle and a guardian
ad litem was app ointed for the protection of the children’s rights.
2
At the time of the interview, R. V. and O. V. were living with foster parents. The guardian ad litem was “very
impressed with the co nditions of the ch ildren and eq ually impressed with the fact that the children have a stable home ....”
At the time of the interview, Ms. Valle was living at 1373 Faxon, a boarding house. The guardian ad litem described
the environm ent as “un stable.”
3
An O rder was entered on June 7, 2 001 , stating that:
(continued...)
-2-
Ms. Marie Brunt, a case manger in adoption for the DCS, testified on behalf of CASA, using
notes of events in the case file of DCS. Ms. Brunt was assigned to the Valle case in February of
2000.4
Ms. Brunt testified that both O. V. and R. V. came to the attention of DCS shortly after their
respective births when the hospital contacted DCS to express concern about releasing the children
to Ms. Valle due to her mental condition.5 Both children were taken directly from the hospital into
protective services.6 Neither child has been returned to the mother since being taken into state
custody. According to DCS’ policy, a plan was approved for O. V. on July 7, 1995 and a plan for
R. V. was approved on August 8, 1996. The goal of the original plan was reunification of the family.
The original plans listed three requirements for Ms. Valle: (1) to seek and complete mental
health treatment, (2) to attend parenting classes, (3) to contact DCS for visitation with her children.
A fourth requirement that Ms. Valle sign a release so that DCS could obtain her mental health
records was added in a subsequent review of the plan. DCS referred Ms. Valle to The University
of Tennessee for parenting classes, beginning in July 1996. On August 8, 1996, DCS received a
letter discharging Ms. Valle from the parenting class because “[Ms. Valle’s] mental illness is
preventing her from learning appropriate parenting skills.”7 After Ms. Valle was dismissed from the
UT parenting class, DCS enrolled her in another class at the Parenting Center. Ms. Valle failed to
attend the Parenting Center class.8 Despite DCS’ requests, Ms. Valle also failed to provide proof
3
(...continued)
Upon careful consideration of the trial memoranda filed by the Respondent and the
Attorney General and the arguments of counsel, and in light of the recent decision
of the Court of Appeals in In re Valentine, No. W1999-01293-COA-R3-CV, 2001
W L 277 979 (Te nn. Ct. A pp. W S march 19, 2001), the Court is of the opinion that
the Respondent’s challenge is not well-taken and that the Re feree is authorized to
hear this case. It is so ORDERED.
4
Ms. Fannie Lamar was the previous case manager. She testified on behalf of CASA at the first trial in May
of 1998.
5
The exact nature of M s. Valle’s mental illness is not in record.
6
The pro tective o rder for O. V. was signed on 6/6/95 and the ord er for R . V. was signed on 7/9/96 .
7
This letter was from Alison M. Lozano, the Chief of Social Work for UT . Ms. Lo zano indicated that M s.
Valle “mono polized the class talking about issues that had no thing to do with the class discussion.” Furthermo re, Ms.
Valle got into a verbal altercation with another member of the class and then refused to let the matter end.
8
On cross-examination, Ms. Valle’s attorney questioned Ms. Brunt as to whether DC S pro vided a referral to
a parenting class specializing in parents with mental illnesses. Ms. Brunt answered that DCS did not. Also, Ms. Brunt
admitted that she was not sure whether Ms. Valle received a copy of the enrollment letter from the Parenting Center.
Ms. Valle testified that she was never notified of her enrollment in the Parenting Center Class and that she was under
the impression that DCS did not want her to attend any more parenting classes after the incident at UT.
-3-
that she was complying with her medication regime for treatment of her mental illness.9 Ms. Valle
also failed to maintain contact with DCS regarding her children and her visitation. According to Ms.
Brunt, Ms. Valle also failed to satisfy the fourth requirement by signing a release in order for DCS
to be informed of the progress of her treatment for mental illness. According to Ms. Valle’s
testimony, she does not recall having been asked to sign a release.
Regarding visitation, Ms. Brunt testified that Ms. Valle visited once in 1995, nine times in
1996. The 1995 and 1996 visits were uneventful, except for the fact that Ms. Valle often left early.10
There were two visits in 1997. During the 1997 visits, Ms. Brunt testified that Ms. Valle’s behavior
became “aggressive and hostile,” and that security was called to escort her from the building. After
March of 1997, Ms. Valle made no further attempts to visit with her children.11 In 2001, following
a hearing in March, a new visitation schedule was set up for Ms. Valle. Since that time, she has had
three visits with her children, all of which went well.12 During these visits, Ms. Valle was
accompanied by her sister, Leatrice Townsend, and her mother. Ms. Townsend testified that she had
called Ms. Fannie Lamar at DCS at least twice to request that she [Ms. Townsend] be allowed to see
the children independent of whether Ms. Valle was there and was told that such visitation was
impossible if the parent was not present. Ms. Brunt testified that DCS has made every effort to
accommodate Ms. Valle’s requests for visitation with the children; however, due to illness, one or
two visits were denied.13
As to monetary support, Ms. Brunt testified that Ms. Valle has never provided money for the
care of her children. Ms. Valle testified that her monthly income was $457 from SSI. On August
5, 1997, the goal of the plan was changed from family reunification to adoption. Ms. Brunt testified
9
Ms. Valle testified that, at the time the initial plan for O. V. was drafted, she was receiving treatment for her
mental illness at St. Josep h under the supervision of a Dr. R ao. Ho wever, acco rding to her o wn testimony, she did not
remember giving this information to DC S. W hen St. Josep h’s Ho spital clo sed, D r. Rao referred M s. Valle to Midtown
Mental Health Center for continuation of her treatment. Ms. Valle was treated with medication, including Lithium. M s.
Valle’s most recent visit to Midtown Mental Health Center was one month prior to the second trial. Although Ms. Valle
produced so me m edica l records for the seco nd trial, these records did not includ e any period before M ay of 1998 .
10
R. V. was not bo rn until July 6, 1996 so the 19 95 visit and approximately half of the 1996 visits were o nly
with O. V.
11
Ms. Valle was incarcerated during part of 1998. She made no attempts to see her children during this period,
although there is some indication in the record that she tried to visit after she was released. Ms. Valle testified that she
contacted DCS concerning a visit approximately two weeks after she was released from prison on April 8, 1998. There
is also some confusion in Ms. Brunt’s testimony as to whether there was a visit before the first trial some time in April
or M ay of 1998 .
12
These visits occurred on April 26, May 9, and May 24 of 2001. Ms. Brunt testified that Ms. Valle arrived
on time and was attentive to her children. However, the children did no t recognize M s. Valle as their m other but on ly
as a “lad y they were com ing to visit.”
13
O. V. has a heart condition–a “rapid heart condition,” according to Ms. Brunt, which has resulted in
hospitalization. O. V. is required to take medication three times per day for his co ndition. R. V. is an asthm atic and also
takes m edica tion for that condition.
-4-
that the reason for the change was due to Ms. Valle’s failure to comply with the plan of care and the
DCS’ belief, based on the mother’s past history, that the failure to comply would not be remedied
in the future.
As to possible family member adoption of the children, Ms. Townsend and Ms. Valle both
testified that the family discussed the possibility of one of them adopting the children and decided
that Ms. Valle’s aunt, Ann Harris, should pursue this possibility. Ms. Brunt of DCS testified that,
although Ms. Harris initiated the adoption process, she failed to satisfy all of the procedural
requirements. Ms. Townsend testified that, after Ms. Valle’s parental rights were terminated after
the first trial, she [Ms. Townsend] also inquired about adopting the children. Ms. Townsend did not,
however, follow through because it was her understanding that a termination of Ms. Valle’s rights
also precluded the family from pursuing adoption or other association with the children.
At the close of Ms. Brunt’s testimony, CASA rested their case. At that point, Ms. Valle’s
attorney moved to have the petition for termination of parental rights dismissed on the basis that
CASA had not met their burden by clear and convincing evidence. The motion was denied.
Ms. Valle subsequently testified that she was currently living in a “group home,” and that she
would not be able to care for her children unless she “had some help.” When asked what type of
help she would require in order to be able to care for her children, Ms. Valle responded that she
would need help with housing, transportation, and money.
At the close of all evidence, the trial court took the matter under advisement. An order
terminating Ms. Valle’s parental rights was entered on July 12, 2001, and provides in pertinent part:
FINDINGS OF FACT
This matter came on to be heard before the Honorable George E.
Blancett, Special Judge of the Juvenile Court of Memphis and Shelby
County, Tennessee; appointed pursuant to Tennessee Code Annotated
Section 17-2-118(f)(2), the Judge having found it necessary to be
absent from holding court...
* * *
From the testimony at this hearing it appears that the mother has an
undefined “mental disability.” No evidence or testimony as to the
nature of such mental illness was tendered to the Court. The mother’s
condition appears to have been known by the Tennessee Department
of Children’s Services prior to [O.V.] coming into their custody due
to two other children having been removed from her custody. The
Tennessee Department of Children’s Services had no contact with the
mother due to her whereabouts being unknown to the Tennessee
-5-
Department of Children’s Services at the “staffing” for the first Plan
of Care. The mother, in her absence, was assigned the responsibility,
among other things, to seek and complete treatment for her mental
illness. The Plan’s initial goal was for return of said child to the
mother; the Plan also expressed the alternative to make placement
with a family member if one were available.... The mother maintain
[sic] little contact with the Tennessee Department of Children’s
Services during 1995, and the first record of her contact with the
Tennessee Department of Children’s Services was in December 1995,
at which time the contents of the Plan were explained to her, and she
had her first visit with [O. V.] since his removal from her.
There was no evidence offered of any additional contact between the
mother and child until after the mother gave birth to [R. V.] on July
6, 1996, at which time the hospital, being aware of the condition of
the mother, contacted the Tennessee Department of Children’s
Services concerning the possible risk of harm to said child if
discharged to her mother. The hospital was aware that three other
children had been previously removed from the mother’s custody. [O.
V. and R. V.] were placed in the same foster home and separate plans
of care were prepared for each of them. The mother was present at
the “staffing” for the first Plan for [R. V.] on July 29, 1996.... The
Plan...required the mother and father to attend “parenting classes” and
for the mother to sign a release to enable the Tennessee Department
of Children’s Services to be informed of the nature of her mental
illness and what, if any, progress and treatment was being rendered.
There is no record of receiving this information and no evidence of
a release of information being signed or its being tendered to her for
signing other than notations in the Plan.
Both parents were referred to The University of Tennessee, Boling
Center for Developmental Disabilities to attend “Supported Parenting
Classes” from which the mother was dismissed in August 1996, due
to her inappropriate behavior. ... The parents were later, in December
1996, referred to The Parenting Center to attend parenting classes;. .
. . there is no evidence that they complied or attended any of the
classes. Several plans of care ... were prepared to guide the family
and the Tennessee Department of Children’s Services in attempts to
reunite this family. The Tennessee Department of children’s Services
worker assigned to this case in February 2000, testified from the
records of the efforts of the previous case managers. The records
show that there has been continued noncompliance with the plan of
care by the mother.
-6-
The testimony further shows that the visitation of the mother with the
children has been irregular. In the year 1995, the mother visited with
O. V. only once, December 8, 1995. In 1996, the mother visited with
the children nine times. The written notes recorded during the visits
described the mother as being inattentive to the children, her leaving
early before the scheduled time for the visit was to end, and of a lack
of bonding between mother and children. In 1997 two visits were
recorded, the second of these visits was at the Tennessee Department
of Children’s Services offices at which time the mother’s conduct
became so aggressive and hostile that she was removed form the
building by the building security staff.
The mother did not request visitation again until after the petition to
terminate her parent rights was filed in 1998. The mother next
requested visitation following the remand of this matter for a new
trial in 2000. She had three visits, April 26, May 9 and 24. Each of
these visits was described as “going well,” the mother was on time for
the visits, and she was devoting appropriate attention to the children.
The children were not informed that “the lady” visiting them was
their mother. After the first visit, the mother requested she be
allowed to bring other family members to the visits. This request was
denied because it was felt inappropriate and would cause confusion
to the children.
The record reveals that the mother’s probation for a felony conviction
was revoked July 21, 1999, and she was sentenced to one-year
confinement. She was given credit for time served from March14,
1997 to April 7, 1998 (390 days). ... The mother’s confinement was
not made known to the Tennessee Department of Children’s Services.
The mother testified that she was “not sure whether the father told the
Tennessee Department of Children’s Services of her confinement.”
In August 1997, the goal of the plan of care was changed to adoption
due to the mother’s continued noncompliance with the Plans. The
mother had been previously informed of the possible consequences
of a goal change to adoption. The mother’s compliance with the plan
of care did not improve even after being informed of the possibility
of her parental rights being terminated and of the children becoming
candidates for adoption. Both children were placed in the “special
needs” category for adoptive placement on December1, 1997. O. V.
has a condition to his heart, requiring medication three times every
day. [R. V.] is asthmatic and has episodes of fainting.
-7-
The uncontroverted evidence indicates that both children have bonded
closely with the prospective adoptive parents, and that a change of
caregivers and physical environment would likely have an adverse
effect on the emotional and physical condition of the children. The
mother testified that she is not able at this time to care for the children
almost six years after removal. At this time the mother lives in a
group home. The mother admitted she might not have given
information to the Tennessee Department of Children’s Services that
could have assisted them in helping her to overcome some of her
deficiencies.
The mother testified that two of her relatives might now be able or
willing to have custody of the children. One of the relatives, Latrice
Townsend, maternal aunt, testified that she has been with the children
only twice during their lifetime. She denied knowing how to seek
visitation or custody with the children. She said the Tennessee
Department of Children’s Services case manager would not assist her
to get visitation. She further testified that she was not available to are
for the children until after May, 1998. She, along with other family
members, along with the father, discussed the possibility of Ann
Harris, maternal aunt, seeking custody or adopting the children. Ann
Harris made application to be considered as adoptive parent, but she
withdrew her application because of personal conflicts she had with
the mother. April Townsend, maternal aunt, testified that she is
available at this time to care for the children, but she offered no
specific plan to achieve this. She has had no involvement with the
children up to this point. Neither Ann Townsend nor Latrice
Townsend appeared to be realistic candidates for custody or adoption
of either or both of the children. They offered no testimony that was
positive in support of the mother’s ability to care for the children.
The most positive testimony was that they, April Townsend and
Latrice Townsend, wanted the children.
At the close of proof, mother’s attorney that there was or may have
been a violation of 42 U.S.C. 12101 and 28 C.F.R.35.130(B)(&),
concerning discrimination against mother. There was no evidence
offered as proof of any discrimination, and Court finds no
discrimination has been proven.
CONCLUSIONS OF LAW
The Court is of the opinion and finds by clear and convincing
evidence that grounds for termination of parental rights of the mother
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have been established and that termination of parental rights is in the
best interest of the children:
1. That the children have been removed from the home of the mother
by order of a court for a period of six (6) months, and
2. That the conditions which led to the children’s removal which in
all reasonable probability would cause the children to be subjected to
further neglect and which prevent the children’s safe return to the care
of their mother, still persist, and
3. That there is little likelihood that these conditions will be
remedied at an early date so that the children could be safely returned
to the mother in the near future, and
4. That the continuation of the parent and child relationship with the
children greatly diminishes the children’s chances of early integration
into a safe, stable and permanent home.
5. That the mother is incompetent to adequately provide for the
further care and supervision of the children because of the mother’s
mental condition [and] is presently impaired and is likely to remain
so that it is unlikely that the mother will be able to assume the care
and responsibility for the child[ren] in the near future.
The mother has a continued inability to provide the necessary
fundamental care for said children, even if not willful, the failure
constitutes a condition, which prevents the safe return of the children
to her care. The efforts to provide help to improve her parenting
skills have been unsuccessful, and there is little likelihood of
improvement as would allow the safe return of the children to the
mother in the near future...
Ms. Valle appeals, raising four issues for our review as stated in her brief:
I. Did the trial court improperly interpret the Tennessee Supreme
Court’s opinion in Ferrell v. Cigna, 33 S.W.3d 731 (Tenn. 2000),
and Article VI, Section 4 of the Tennessee Constitution in
considering whether the Memphis and Shelby County Juvenile Court
Judge may proscriptively appoint a referee as special judge in
termination of parental rights cases without following the appropriate
procedures and without the consent of the parties.
II. Did the trial court violate Cynthia Valle’s right to procedural due
process, as guaranteed by the Fourteenth Amendment to the United
States Constitution and Article 1, Section 8 of the Tennessee
Constitution by the use of unfair procedures.
-9-
III. Did the sole testimony of one witness rise to the level of clear and
convincing evidence sufficient to terminate the parental rights of a
natural parent, when that witness was purportedly the custodian of
record who had no personal knowledge of the facts about which she
testified.
IV. Did the Tennessee Department of Children’s Services make
reasonable efforts to help the natural parents meet the requirements
of the permanency plans before seeking to terminate their parental
rights.
Since this case was tried by the trial court sitting without a jury, we review the case de novo
upon the record with a presumption of correctness of the findings of fact by the trial court. Unless
the evidence preponderates against the findings, we must affirm, absent error of law. See Tenn. R.
App. P. 13(d).
Did the Trial Court improperly interpret the Tennessee
Supreme Court’s opinion in Ferrell v. Cigna, 33 S.W.3d 731
(Tenn. 2000), and Article VI, Section 4 of the Tennessee
Constitution in considering whether the Memphis and
Shelby County Juvenile Court Judge may proscriptively
appoint a referee as special judge in termination of
parental rights cases without following the appropriate
procedures and without the consent of the parties.
At the outset of the second trial, counsel for Ms. Valle made the following statement to
the Court:
It’s clear that Judge Turner is not here, and it was announced that he
found it necessary to be absent, and that you’re [George E. Blancett]
sitting as Special Judge.
And we [counsel for Ms. Valle] assume that you’re sitting by virtue
of Tennessee Code Annotated Section 17-2-118 or perhaps 17-2-122
or any of the other statutes that provide for the appointment of a
special or substitute judge.
However, we believe that upon information and belief that the proper
procedure has not been followed as set out by the Tennessee Supreme
Court Rule 11, and also is reiterated in the case of Ferrell vs. Cigna
Insurance Company...
-10-
[Here counsel reads, from Rule 11, Tennessee Supreme Court, the
proper procedure for appointing substitute or special judges]
To our [counsel for Ms. Valle] knowledge and information this
[compliance with Rule 11] has not happened, and therefore we would
respectfully ask this court not to proceed today until those procedures
have been accomplished.
Although Ms. Valle’s counsel raises the issue of noncompliance with statutory
procedures, she puts nothing into the record as to exactly how Judge Blancett’s appointment has
violated Rule 11, Tennessee Supreme Court, or Ferrell v. Cigna Ins. Co., 33 S.W.3d 731. Only
a vague reference to Ms. Valle’s counsel’s own “knowledge and information” is cited. Without
specific information, this Court is called upon to guess the source of Judge Blancett’s
appointment. And this is a task we must decline. Since this record is devoid of any material
evidence that might give us compass as to whether proper procedures have been bypassed, we
must decline to address the question.
As to the issue of whether appointment of a juvenile court referee as special judge
contravenes our State Constitution, our Supreme Court has recently provided a definitive answer
on this question in In re Valentine, 79 S.W.3d 539 (Tenn. 2002). In Valentine, the Court held
that “the appointment of a juvenile court referee as a special judge under Tenn. Code. Ann. § 17-
2-118(f)(2) does not contravene the provision in Article VI, § 4 of the Tennessee Constitution
requiring that a judge be elected.” Id. at 545.
For the foregoing reasons, this issue is without merit.
Did the trial court violate Cynthia Valle’s right to procedural due
process, as guaranteed by the Fourteenth Amendment to the
United States Constitution and Article 1, Section 8 of the
Tennessee Constitution by the use of unfair procedures.
Appellant points to several incidents at trial, alleging that any one of them could have
violated her right to due process under the Fourteenth Amendment. First, Ms. Valle contends
that Judge Blancett erred in allowing Ms. Brunt to testify “from her summary of DCS’ records,
replete with hearsay contained therein.” Ms. Brunt’s reading from this document drew the
following objection from Ms. Valle’s counsel:
MS. DAVIS: Your Honor, I’m going to object. I’m not sure, but I’m
wondering if the witness is reading, if she has some material she’s
reading from, and if she does I would like to see it to be apprised [sic]
as to what–
THE COURT: The question is, have you reviewed some notes to–
-11-
THE WITNESS [Ms. Brunt]: What I’ve done is–I have to, because
you see the depth of the file, I had to summarize and put something
together or I wouldn’t–it would be easier for me to testify.
MS. DAVIS: Well, I think, Your Honor, if she is testifying from
notes, then I’m entitled to see what it is she’s testifying from. I see
that the records are sitting there, but I also saw her referring in her
testimony from the very beginning to some papers that she was
reviewing, so I think I’m entitled to see what those papers are.
THE COURT: I don’t understand your objection. Are you objecting
to her testifying from her notes?
MS. DAVIS: I’m objecting to her testifying from her notes, yes,
without me having reviewed those notes, Your Honor.
THE COURT: Well, that will be overruled, but if you can, get down
to a point subsequent to this that heeds you in your cross-examination
of her, and you can renew your ability to see them at that time.
We first note that Ms. Davis objected to this testimony not on the basis of hearsay, but on
the ground that she [Ms. Davis] had not had the opportunity to review the document. We note,
however, that at least two hearsay objections were warranted by Ms. Brunt’s testimony. First,
there was the hearsay objection to the DCS records themselves. However, even if this objection
was overruled under the business records or other hearsay exception, every statement recorded in
a business record is not necessarily admissible as evidence. See Butler v. Ballard, 696 S.W.2d
533, 536-37 (Tenn. Ct. App. 1985). Consequently Ms. Valle could still have made a hearsay
objection to Ms. Brunt’s testimony concerning the contents of the DCS records. However, the
record before us does not indicate even one objection to Ms. Brunt’s testimony on the grounds of
hearsay. Failure to interpose proper and seasonable objections to hearsay equals a waiver and
statements or records that would likely be excluded under a proper hearsay objection become
sufficient evidence absent such objection. A party who invites or waives error, or who fails to
take reasonable steps to cure an error, is not entitled to relief on appeal. See Tenn. R. App. P.
36(a), cmt. a. Failure to object to evidence in a timely and specific fashion precludes taking issue
on appeal with the admission of evidence. See Ehrlich v. Weber, 88 S.W. 188, 189 (Tenn.
1905); See also Pyle v. Morrison, 716 S.W.2d 930, 936 (Tenn. Ct. App. 1986); Tenn. R. Evid.
103 (a)(1).
As to the objection that is in record (i.e. Ms. Davis not being allowed to review the
document that Ms. Brunt used during her testimony), we find that Judge Blancett subsequently
sustained the objection by allowing Ms. Davis to look at the document:
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THE COURT: What I would suggest now, would you [Ms. Davis]
like to renew your request to examine some of the notes that are
nonconfidential in basis?
MS. DAVIS: Yes, Your Honor, I would like to examine–
THE COURT: I think what I might do is recess this hearing until one
o’clock and give you the opportunity to meet, and you [Ms. Neale,
counsel for CASA] can help with that to be sure that nothing is
prevented by the statutory or confidential nature–
MS. NEALE: Are you suggesting that she be allowed to go through
case notes?
THE COURT: Anything that she’s [Ms. Brunt] testified to involving
this child in the matter, that should be made part and available for her
[Ms. Davis] to look at...
We note that Ms. Davis’ objection was only to her not being allowed to look at the
document Ms. Brunt was using. Nowhere in the record do we find an objection based upon
improper use of the document to refresh Ms. Brunt’s memory nor do we find any objection,
whether before or after Ms. Davis was allowed to see this document, on the ground of hearsay.
Ms. Davis’ objection to not being allowed to see the document was subsequently sustained when
Judge Blancett took a recess and allowed Ms. Davis access to whatever Ms. Brunt was using
during her testimony. After being allowed to see the document, we do not find any indication in
the record that Ms. Davis raised any further objections.
The remaining grounds Ms. Valle raises in support of her argument that she was denied
due process stem from the actions of Judge Blancett during the trial. Ms. Valle contends that the
manner in which Judge Blancett conducted the trial made it impossible for her to proceed with
meaningful cross-examination and, consequently, she was unable to completely develop her case.
Ms. Valle alleges, inter alia, that Judge Blancett “repeatedly interrupted Mrs. Valle’s defense,”
“impose[d] unrealistic time restraints,” “exhibited a cavalier attitude toward establishing the
truth,”14 “sarcastically interjected,”15 and “rush[ed] to judgment.”
14
Ms. Valle cites the following example from the record:
THE COU RT: So consequently, the Dep artment of Children Services referre d M s.
Valle to the mental health which she didn’t go to or did go to.
MS . DAV IS: Well, I don’t know that that is true, Your Ho nor.
TH E COU RT : W ell,--
(continued...)
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We have read the entire trial transcript in this case, and, while we note that some of Judge
Blancett’s comments, when read from the record, do seem a bit brusque, not every comment by a
judge that can be deemed improper requires reversal. During the course of a trial, a judge must
be patient, dignified, and courteous to lawyers and witnesses while, at the same time, ensuring
that the matter is adjudicated promptly and efficiently.16 The manner in which a judge chooses to
balances these requirements is largely left to the judge’s own discretion. When reviewing a
14
(...continued)
MS. DA VIS: Maybe the witness–
THE COURT: –the fact that whether or not they knew she was on notice bec ause
they referred her to it, so I think that’s a given that they thought that she had an
involvement there so she was referred to it, but she didn’t go. That’s the question,
as to wh ether o r not she went.
15
Ms. Valle cites the following example from the record:
THE CO UR T: M s. Davis, I’m telling you again that it says here when this case
started a couple of days ago it seems that part of the responsibilities of the mother
was [sic] to comply with the mental health plan of recommendation, and so she was
referred to it and whether she went or not is what’s the matter.
* * *
MS. DAV IS: Your Ho nor, with all due respect, I don’t think the testimony has been
that she has been referred anywhere by the Department.
THE COURT : I’m just saying that she said she should comply with it. She
doesn’t–she didn’t sign any release, don’t have any information, so why spend any
more time looking for something that’s not there?
MS. DA VIS : W ell, the question, Your H onor, is whether or not a release was
provided for her to sign. If the testimony is that she refused to sign a release, then
the question I have is, do you have the release to demonstrate or to evidence that
one was–
THE CO URT: It is not signed.
MS. DAV IS: Correct.
THE COURT : That seems nonproductive to find that unsigned release in there,
because – [to the witness] quit looking for the release. We will say that there’s no
unsigned release shown to the satisfaction of the Court. The Court will have to
evalua te that.
16
See Rule 10, Supreme Cour t Rules. Canon 3 (B)(4) states that “[a] judge shall be patient, dignified, and
courteous to litigants, jurors, witne sses, lawye rs, and others with who m the ju dge deals in an official capacity....” This
duty, however, is balanced against the duty imposed by Can on 3 (B) (8), which is to “dispose of all judicial matters
promptly, efficiently, and fairly.”
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record for allegations of error, the standard this Court must follow is found in Tenn. R. App. P.
36(b):
A final judgment from which relief is available and otherwise
appropriate shall not be set aside unless, considering the whole
record, error involving a substantial right more probably than not
affected the judgment or would result in prejudice to the judicial
process.
Considering the whole record, we find no evidence to suggest that Ms. Valle was prejudiced by
any comments Judge Blancett made. Therefore, we hold that the manner in which Judge
Blancett conducted this trial does not rise to the level of reversible error.
Did the sole testimony of one witness rise to the level of clear
and convincing evidence sufficient to terminate the parental
rights of a natural parent, when that witness was purportedly
the custodian of record who had no personal knowledge of
the facts about which she testified.
T.C.A. § 36-1-113(c) reads as follows:
(c) Termination of parental or guardianship rights must be based
upon:
(1) A finding by the court by clear and convincing evidence that the
grounds for termination or parental or guardianship rights have been
established; and
(2) That termination of the parent’s or guardian’s rights is in the best
interests of the child.
In determining whether this clear and convincing standard has been met, we do not look to the
testimony of one witness but rather to the record as a whole. So, the correct statement of the
issue is not whether the testimony of Ms. Brunt rose to the level of clear and convincing evidence
but whether the record, when taken as a whole, shows by clear and convincing evidence that Ms.
Valle’s parental rights should be terminated based on any of the grounds enumerated in T.C.A. §
36-1-113(g). The question of whether Ms. Brunt’s testimony and use of notes was proper is
addressed under Issue Two, supra.
Turning to the question of whether evidence in this case rose to the level of clear and
convincing proof, we first note that Judge Blancett’s Order Terminating Parental Rights listed
several grounds for termination:
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(b) That Respondent has abandoned the children under current law as
defined in TCA § 36-1-113(g)(1)(Supp. 2000).
(c) That Respondent has substantially failed to comply with the
statement of responsibilities in the ratified Permanency Plan as
defined in TCA § 37-2-403.
(d) That said children have been removed from the custody of
Respondent by order of the Court for at least six (6) months and the
conditions which led to the removal or other conditions which in all
reasonable probability would cause said children to be subjected to
further abuse or neglect and which, therefore, prevent said children’s
return to Respondent’s care, still persists and there is little likelihood
that the conditions will be remedied at an early date so that said
children can be returned to Respondent in the near future. Further,
the continuation of a relationship with Respondent greatly diminishes
said children’s chances of early integration into a stable and
permanent home.
(e) That in accordance with T.C.A. § 36-1-113(g)(8A)(B)((i)(ii)), the
Respondent is incompetent to adequately provide for the further care
and supervision of the children because her mental condition is
presently so impaired and is likely to remain so that it is unlikely that
she will be able to assume the care and responsibility for the children
in the near future...
We further note that clear and convincing evidence of any one of the above grounds is sufficient
to terminate Ms. Valle’s parental rights. See T.C.A. § 36-1-113(g). Notwithstanding Ms.
Brunt’s testimony on behalf of DCS, we find clear and convincing evidence from Ms. Valle’s
own testimony that she is “incompetent to adequately provide for the further care and supervision
of the children because her mental condition is presently...impaired”:
Q: Do you [Ms. Valle] feel like you could take care of the kids today?
If we let the kids go home with you today are you ready to take care
of them?
A: If I had some help.
Q: Okay. But you’ve got to take care of the kids yourself. They’re
your kids. Are you ready? Are you in a position to do that?
A: I don’t know.
Q: Okay. Do you have a nice place to live where you would be
comfortable taking them?
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A: I live in a group home.
Q: Okay. Do you think you would be able to provide for them, you
know, with the money that you get to take care of them?
A: I’m sure I’ll be needing some more money than what I’m getting.17
Q: And, you know, I know you’ve heard that [O. V.] has some
medical problems,--
A: Yes, I heard about that.
Q: –and he needs to get his medicine three times a day and be taken
to the hospital occasionally. Do you think you would be able to do
that?
A: Not today I wouldn’t, because I just–I would need some help. Do
you know what I’m saying?
* * *
Q: ...Do you have any idea of how long it’s going to take you to get
healthy and able to really take care of your kids all by yourself? Do
you have any idea?
A: Not today I’m not. After a little while I should know.
We hold that Ms. Valle’s own testimony, along with the entire record, provides clear and
convincing evidence sufficient to terminate her parental rights under T.C.A. § 36-1-
113(g)(8)(B)(i).18 Moreover, there is clear and convincing evidence supporting the juvenile
court’s findings of fact set out above. The record adequately establishes that termination of
parental rights is in the children’s best interests. Under T.C.A. § 36-1-113(g), this ground alone
is sufficient to terminate Ms. Valle’s parental rights we, therefore, pretermit discussion of
whether clear and convincing evidence exists for the other grounds listed in Judge Blancett’s
Order.
17
Ms. V alle testified that she receives appro ximately $45 7.00 p er month in SSI benefits.
18
T.C.A. § 36-1-113(g)(8)(B)(i) provides that the court may terminate parental rights if clear and convincing
evidence exists that: “The parent of guardian of the child is incompetent to adequately provide for the further care and
supervision of the child because the parent’s or guardian’s mental condition is presently so imp aired and is so likely to
rema in so that it is unlikely that the parent or guardian will be able to assume or resume the care of and resp onsibility
for the child in the near future...”
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Ms. Valle further argues that, under T.C.A. § 36-1-113(g)(8)(A), she was entitled to a
bifurcated trial on the issue of her incompetence. T.C.A. § 36-1-113(g)(8)(A) states:
The chancery and circuit courts shall have jurisdiction in an adoption
proceeding, and the chancery, circuit, and juvenile courts shall have
jurisdiction in a separate, independent proceeding conducted prior to
an adoption proceeding to determine if the parent or guardian is
mentally incompetent to provide for the further care and supervision
of the child, and to terminate that parent’s or guardian’s rights to the
child.
Id. (emphasis added)
By it’s plain language, T.C.A. § 36-1-113(g)(8)(A) requires a proceeding separate from the
adoption proceeding to determine competency of the parents. That proceeding is precisely what
we are dealing with in this appeal. The matter before us is a termination of parental rights
hearing.
Did the Tennessee Department of Children’s Services make
reasonable efforts to help the natural parents meet the
requirements of the permanency plans before seeking to
terminate their parental rights.
Under T.C.A. § 37-1-166(a), the court is required to determine whether DCS made
“reasonable efforts” for reunification of the family. T.C.A. § 37-1-166(g)(1) defines “reasonable
efforts” as follows:
As used in this section, “reasonable efforts” means the exercise of
reasonable care and diligence by the department to provide services
related to meeting the needs of the child and the family. In
determining reasonable efforts to be made with respect to the child,
as described in this subdivision, and in making such reasonable
efforts, the child’s health and safety shall be the paramount concern.
The record in this case contains clear and convincing evidence that DCS has made
reasonable efforts to help Ms. Valle keep her family together. Reunification of a family is a two-
way street, and the law does not require DCS to carry the entire burden of this goal. By her own
testimony, Ms. Valle understood the plans that were put into place after her children were placed
into protective custody and that those plans imposed certain requirements on her:
Q: ...The Department has indicated that certain plans were put in
place after your children were taken into custody; do you understand
that?
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A [by Ms. Valle]: yes, Ma’am.
Q: Do you understand that they have indicated that certain
requirements that they made in order to return your children have not
been met by you; do you also understand that?
A: Yes, ma’am.
Additionally, DCS referred Ms. Valle to at least one Parenting Class, which by her own
admission she was unable to complete. DCS has allowed visitation with the children, except on
those occasions when the children were ill or hospitalized. Within the confines of it’s own
resources and the specific circumstances of this case, it is the opinion of this Court that DCS has
made reasonable efforts to help Ms. Valle meet the requirements of the Permanency Plans.
Unfortunately, Ms. Valle, by virtue of her mental illness, incarceration, poverty, or any number
of other factors, has been unable to reciprocate in the process of reunification.
For the foregoing reasons, we affirm the order of the trial court. Costs are accessed
against the Appellant, Cynthia Valle, and her surety.
__________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.
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