                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                          Submitted on Briefs September 19, 2006

                          IN RE I.C.G., B.M.D., T.N.C., & T.L.C.

                     Appeal from the Juvenile Court for Hamilton County
                          No. 192214-18 Suzanne Bailey, Judge



                 No. E2006-00746-COA-R3-PT - FILED OCTOBER 31, 2006



In this appeal, S.L.B. (“Mother”) contends that the trial court erred in terminating her parental rights
to four of her five children. Mother does not challenge the propriety of the trial court’s order
terminating her parental rights as to the fifth child. After careful review of the evidence and
applicable authorities, we hold that the evidence does not preponderate against the trial court’s
finding by clear and convincing evidence that termination of Mother’s parental rights was in the best
interest of her children. Therefore, we affirm.


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


SHARON G. LEE, J., delivered the opinion of the court, in which HERSCHEL PICKENS FRANKS, P.J.,
and CHARLES D. SUSANO , JR., J., joined.

Robert B. Pyle, Chattanooga, Tennessee, for the Appellant, S.L.B.

Paul G. Summers, Attorney General and Reporter, and William N. Helou, Assistant Attorney
General, Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children's
Services.
                                                        OPINION

                                                     I. Background

        This case involves the termination of Mother’s parental rights to five of her children.1 Imari
G. (born September 13, 1991) is the son of Anthony G., who is deceased. Bre’Ana D. (born March
1, 1993) is the daughter of Michael D. The remaining three children, Tyrone C., Jr., (“Tyrone Jr.”)
(born July 30, 1999), Tyshaila C. (born December 3, 2000), and Tyonna C. (born July 7, 2002), were
fathered by Tyrone C., Sr. (“Tyrone Sr.”). The Department of Children’s Services (“DCS”) is not
seeking termination of the parental rights of Michael D. and Tyrone Sr. and is continuing to provide
services to them.

        On May 4, 2002, Mother brought Tyrone Jr. to the emergency room of T.C. Thompson
Children’s Hospital in Chattanooga. The child was treated for second-degree burns on the tops and
sides of his feet, his left elbow, his left buttock, and part of his back. He also had first-degree burns
on his shoulders. According to Mother, who was approximately seven months pregnant at the time
of the incident, she was taking a nap around 11 a.m. on either May 1 or 2, 2002,2 when she awoke
to the sound of Tyrone Jr. screaming. Mother said that she found the two-year-old in the bathtub,
and he had been burned by hot water in the tub.3 Mother testified that her elderly grandparents were
supposed to be watching the children while she slept.4 Tyrone Jr.’s pediatrician reported that Mother
called him late on the night of May 3, 2002, to request a prescription for ointment to treat the burns,
and then brought the child to his office the following morning. Mother was told to take Tyrone Jr.
to the emergency room, which she did that same day. Doctors told DCS that the burns on Tyrone
Jr.’s body were not water burns. Mother had previously been investigated by DCS because of burns
on Bre’Ana D. and bruises on Tyrone Jr.

        On May 8, 2002, the Juvenile Court of Hamilton County entered a protective custody order
which vested DCS with temporary custody of Imari G., Bre’Ana D., Tyrone Jr., and Tyshaila C. The
court found probable cause to believe that the children were dependent and neglected based on the
severe injuries sustained by Tyrone Jr. while in his Mother’s care. On July 9, 2002, the trial court
entered a protective custody order regarding Tyonna C., then two days old, and placed her in the care
of DCS based upon the same episode of alleged abuse.


         1
           Since DCS filed its Petition to Terminate Parental Rights on May 19, 2004, Mother has given birth to two
additional children, Jomanna and Jacob. Both children were removed from Mother’s custody shortly after their birth
and placed in the custody of DCS. M other’s parental rights to these two children are not at issue in this case. At the time
the trial court rendered its judgment on February 24, 2006, Mother was pregnant with her eighth child.

         2
             According to the record, Mother is unable to remember the exact date of the incident.

         3
             A test of the water temperature in Mother’s apartment indicated that the water could get as hot as 151 degrees.

         4
         Tyrone Sr., M other’s husband and the father of three of the children at issue in this case, was incarcerated for
domestic violence at the time of Tyrone Jr.’s injury.

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        DCS drafted permanency plans for the children.5 Mother signed the permanency plans for
her four oldest children on June 20, 2002, noting that she did not agree to the requirement that she
“admit to child abuse or any other criminal conduct.” The permanency plan for the infant, Tyonna
C., was not signed by Mother. There is no indication in the record as to why she did not sign the
final permanency plan, which was developed in September of 2002. However, the requirements for
Tyonna C.’s plan were essentially the same as those of the other four children.

       On September 9, 2003, the trial court found Mother’s five children to be dependent and
neglected. Furthermore, the court entered a finding of severe abuse against Mother, stating that clear
and convincing evidence persuaded the court that Mother had intentionally inflicted Tyrone Jr.’s
burns. The trial court’s findings were affirmed by the Circuit Court of Hamilton County.

        On April 14, 2004, the trial court terminated Mother’s visitation because of Mother’s
inappropriate behavior during supervised visits with her children. During one of the visits, Mother
lost her temper, and DCS had to call security to remove Mother from the premises. The following
month, DCS filed a petition to terminate the parental rights of Mother on the grounds that Mother
abandoned the children by willfully failing to support them; Mother committed severe abuse against
Tyrone Jr.; Mother failed to substantially comply with the permanency plans drafted by DCS; the
children have been removed from Mother’s home by court order for more than six months and the
conditions which led to the removal persist and are unlikely to be remedied in the near future, and
the continuation of the mother/child relationship greatly diminishes the children’s chances of early
integration into a safe, stable, and permanent home; and Mother was sentenced to more than two
years’ imprisonment for conduct against Tyrone Jr.6 DCS further asserted that the termination of
Mother’s parental rights would be in the best interests of her five children.

        The trial court granted a default judgment to DCS on September 26, 2005, because Mother
failed to appear in court and did not provide an excuse for her absence. Mother’s attorney filed a
motion to set aside the default judgment, which the trial court denied when Mother once again failed
to appear in court for the motion hearing. Mother’s attorney filed a second motion to reconsider the
termination, which was granted on November 9, 2005.

      Following a bench trial, the court entered a Termination of Parental Rights and Final Decree
of Complete Guardianship on February 24, 2006. The trial court found, by clear and convincing


         5
           The permanency plans required, among other things, that Mother: undergo a parenting assessment; complete
a psychological examination; actively participate in any counseling recommended as a result of the pyschological
assessment and attend such counseling until all treatment goals have been met; complete counseling designed to deal with
domestic abuse issues; admit to abusing her children; have gainful, stable employment for at least six months prior to
her children returning home; provide a safe, clean, and stable home for her children; cooperate with all DCS case workers
and other professionals assigned to work with her; and pay child support to the state in accordance with current
guidelines.

         6
         Mother pleaded guilty to attempted aggravated child neglect, for which she received a ten-year sentence. The
Criminal Court of Hamilton County suspended Mother’s sentence and placed her on active probation.

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evidence, all of the grounds for termination of Mother’s parental rights alleged by DCS with the
exception of abandonment by failure to pay child support.7 Furthermore, the court found by clear
and convincing evidence that it was in the best interests of the children that Mother’s parental rights
be terminated. Mother appeals.

                                                       II. Issue

        The sole issue raised by Mother on appeal is whether the trial court was correct in finding,
by clear and convincing evidence, that termination of her parental rights was in the best interest of
Imari G., Bre’Ana D., Tyshaila C., and Tyonna C. Mother did not appeal the trial court’s finding
that termination of her parental rights to Tyrone Jr. was in that child’s best interest.

                                             III. Standard of Review

        A biological parent’s right to the care and custody of his or her child is among the oldest of
the judicially recognized liberty interests protected by the due process clauses of the federal and state
constitutions. Troxel v. Granville, 530 U.S. 57, 65 (2000); Hawk v. Hawk, 855 S.W.2d 573, 578-79
(Tenn. 1993); Ray v. Ray, 83 S.W.3d 726, 731 (Tenn. Ct. App. 2001). Although this right is
fundamental and superior to claims of other persons and the government, it is not absolute. State
v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct. App. 2004). This right continues without interruption
only as long as a parent has not relinquished it, abandoned it, or engaged in conduct requiring its
limitation or termination. Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Although “parents
have a fundamental right to the care, custody, and control of their children,” this right is not absolute
and parental rights may be terminated if there is clear and convincing evidence justifying such
termination under the applicable statute. In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988)
(citing Stanley v. Illinois, 405 U.S. 645 (1972)).

        Termination proceedings are governed by statute in Tennessee. Parties who have standing
to seek the termination of a biological parent’s parental rights must first prove at least one of the
statutory grounds for termination. Tenn. Code Ann. § 36-1-113(c)(1). Secondly, they must prove
that termination of the parent’s rights is in the child’s best interest. Tenn. Code Ann. § 36-1-
113(c)(2). Because the decision to terminate parental rights has profound consequences, courts must
apply a higher standard of proof in deciding termination cases. Therefore, to justify termination of
parental rights, the party seeking termination must prove by clear and convincing evidence the
ground (or grounds) for termination and that termination is in the child’s best interest. Tenn. Code
Ann. § 36-1-113(c); In re Valentine, 79 S.W. 3d 539, 546 (Tenn. 2002).

        The heightened burden of proof in parental termination cases minimizes the risk of
erroneous decisions. In re C.W.W., 37 S.W.3d 467, 474 (Tenn. Ct. App. 2000); In re M.W.A., Jr.,


         7
         The trial court stated that “because of Mother’s pregnancies with children who are not the subject of this action
and claims of inability to work during those pregnancies, the Court does not find clear and convincing evidence of
abandonment by failure to pay child support.”

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980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence
standard establishes that the truth of the facts asserted is highly probable, State v. Demarr, No.
M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App. M.S., filed Aug. 13, 2003),
no appl. perm. filed, and eliminates any serious or substantial doubt about the correctness of the
conclusions drawn from the evidence. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002); In re S.M.,
149 S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d 919, 925 (Tenn. Ct. App.
2004). It produces in a fact-finder’s mind a firm belief or conviction regarding the truth of the facts
sought to be established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83
S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474.

        In a non-jury case such as this one, we review the record de novo with a presumption of
correctness as to the trial court’s determination of facts, and we must honor those findings unless the
evidence preponderates to the contrary. Tenn. R. App. P. 13(d); Union Carbide v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993). When a trial court has seen and heard witnesses, especially where
issues of credibility and weight of oral testimony are involved, considerable deference must be
accorded to the trial court’s factual findings. Seals v. England/Corsair Upholstery Mfg. Co., Inc.,
984 S.W.2d 912, 915 (Tenn. 1999). Further, “[o]n an issue which hinges on the credibility of
witnesses, the trial court will not be reversed unless there is found in the record clear, concrete, and
convincing evidence other than the oral testimony of witnesses which contradict the trial court’s
findings.” Galbreath v. Harris, 811 S.W.2d 88, 91 (Tenn. Ct. App. 1990) (citing Tennessee Valley
Kaolin Corp. v. Perry, 526 S.W.2d 488, 490 (Tenn. Ct. App. 1974)). The trial court’s specific
findings of fact are first reviewed and are presumed to be correct unless the evidence preponderates
against them. We then determine whether the facts, either as found by the trial court or as supported
by the preponderance of the evidence, clearly and convincingly establish the grounds for terminating
the biological parent’s parental rights. In re S.M., 149 S.W.3d 632, 640 (Tenn. Ct. App. 2004). The
trial court’s conclusions of law are reviewed de novo and are accorded no presumption of
correctness. Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn. 1996); Presley v. Bennett,
860 S.W.2d 857, 859 (Tenn. 1993).

                                            IV. Analysis

         Mother asserts that the trial court erred in finding that termination of her parental rights is
in the best interest of Imari G., Bre’Ana D., Tyshaila C., and Tyonna C. Tennessee law provides that
a court shall consider the following factors when determining whether termination of parental rights
is in the best interest of a child:

               (1) Whether the parent or guardian has made such an adjustment of
               circumstance, conduct, or conditions as to make it safe and in the
               child’s best interest to be in the home of the parent or guardian;

               (2) Whether the parent or guardian has failed to effect a lasting
               adjustment after reasonable efforts by available social services



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               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 and 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 activitiy 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). The factors enumerated above are not exhaustive, and “[t]he statute
does not require every factor to appear before a court can find that termination is in a child's best
interest.” Dept. of Children's Svcs. v. T.S.W., No. M2001-01735-COA-R3-PT, 2002 WL 970434,
at *3 (Tenn. Ct. App. M.S., filed May 10, 2002).

        The trial court heard testimony from several witnesses, including DCS employees, mental
health professionals, friends of Mother, and Mother herself. After considering all of the evidence,
the court found by clear and convincing evidence that termination of Mother’s parental rights was
in the best interest of the children. Specifically, the court found that:



                                                -6-
       •       The children had been removed from Mother’s custody by order of the court
               for at least six months before the hearing, and Mother “failed to make any
               adjustment of circumstance, conduct or conditions to make it safe and in the
               Children’s best interest to be placed in her care.” See Tenn. Code Ann. § 36-
               1-113(i)(1).

       •       Despite assistance from DCS, “there is no evidence that [Mother] can provide
               a home in which the Children will be safe from the threat of certain emotional
               and psychological and very likely physical harm caused by the Mother’s
               tendency to engage in violent relationships and her untreated personality
               disorders.” See Tenn. Code Ann. § 36-1-113(i)(2), (7), (8).

       •       The children “were taken from the Mother at such a tender age that no
               meaningful parent-child relationship exists between them and their mother.”
               See Tenn. Code Ann. § 36-1-113(i)(4). Imari G. indicated that he wanted to
               remain with his foster family rather than returning to Mother. Bre’Ana D.
               told Dr. Tom Biller, one of the pyschiatrists who counseled the children after
               they were placed with DCS, that if she (Bre’Ana) were a parent, it would be
               wrong to treat her children like Mother treated her.

       •       A change of caretakers and homes is likely to have a negative effect on the
               children. See Tenn. Code Ann. § 36-1-113(i)(5). The trial court emphasized
               that the children have been in foster care for four years during the pendency
               of this proceeding, yet “they have achieved an amazing level of permanency
               despite this lengthy process.” The court expressed concern that “[i]t is highly
               unlikely that other such good opportunities for permanency will be available
               if full advantage is not taken of these right away.” Finally, the court noted
               that continuation of Mother’s parental relationship with the children “greatly
               diminishes the Children’s chances of early integration into a stable and
               permanent home.”

       •       Because of Mother’s antisocial personality disorder, Mother “cannot provide
               a safe environment for the Children and she will not change.” See Tenn.
               Code Ann. § 36-1-113(i)(8). The trial court reiterated testimony from Dr.
               Bertin Glennon, the psychiatrist who conducted a parenting assessment of
               Mother, that “[Mother’s] personality disorder will cause her to consistently
               fail to follow the normal process of thinking for a mother and that the
               condition will not change.” The court emphasized that none of the mental
               health service providers who testified would recommend that custody of the
               children be restored to Mother.

        While discussing the statutory grounds for terminating Mother’s parental rights, the trial
court called attention to its earlier finding that Mother had committed severe child abuse against


                                                -7-
Tyrone Jr. That finding, which was affirmed by the Circuit Court of Hamilton County, is also
relevant in the best-interest analysis. See Tenn. Code Ann. § 36-1-113(i)(6).

        Mother argues that the trial court “hardly carried the day on best interests of the children,
much less by clear and convincing evidence.” We disagree. There is ample evidence in the record
to support the trial court’s findings. Certainly the history of child abuse in Mother’s household
would raise concerns about the health of these children, should they be returned to Mother. There
was also a history of domestic violence between Mother and her partners. Mother testified that she
had been in three abusive relationships in her lifetime, one of which is with her current husband,
Tyrone Sr., who is also the father of three of the children at issue in this case. Mother was diagnosed
with personality disorders by two mental health professionals, and the court stated that it witnessed
symptoms of Mother’s antisocial personality disorder while she was testifying. Furthermore, there
is evidence that Mother’s parenting ability will be impaired because of her mental health condition.

        Three case managers from DCS testified that they would not recommend that Mother be
allowed to have custody of her children. They described her temper tantrums during visits with her
children and a general uncooperative attitude when she interacted with DCS employees. In fact,
Mother’s behavior during visits was so extreme and so upsetting to her children that the court
terminated her visitation. Mother was also uncooperative during her parenting assessment and did
not complete the counseling that was required as part of her permanency plan. She failed to pay
child support and testified that she does not want to get a job because she is trying to get disability
payments. This suggests that she might not be able to support her children, even if they were
returned to her care.

         Although a parent’s right to the care and custody of her children is a fundamental liberty
interest protected by both our state and federal constitutions, a parent’s interest must yield to that of
her children. After careful review, we must conclude that the evidence does not preponderate against
the trial court’s finding by clear and convincing evidence that termination of Mother’s parental rights
is in the best interest of Imari G., Bre’Ana D., Tyshaila C., and Tyonna C.

                                            V. Conclusion

         For the foregoing reasons, the judgment of the trial court is affirmed. This case is remanded
to the trial court for enforcement of the trial court’s judgment terminating Mother’s parental rights
to Imari G., Bre’Ana D., Tyshaila C., and Tyonna C. and for collection of costs assessed below, all
pursuant to applicable law. Costs on appeal are adjudged against the Appellant, S.L.B.



                                                        ___________________________________
                                                        SHARON G. LEE, JUDGE




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