Opinion
No. E2006-01677-COA-R3-PT.
Assigned on Briefs January 16, 2007 Session.
Filed February 9, 2007.
Appeal from the Juvenile Court for Hancock County; No. J-535; Robert M. Estep, Judge.
Judgment of the Juvenile Court Affirmed; Case Remanded.
Scott A. Hodge, Morristown, Tennessee, for the Appellant, B.B.M.
Robert E. Cooper, Jr., Attorney General and Reporter, and Kimberly J. Dean, Deputy Attorney General, Nashville, Tennessee, for the Appellee, State of Tennessee, Department of Children's Services.
D. MICHAEL SWINEY, J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J., and SHARON G. LEE, J., joined.
This is the second appeal to this Court of the Juvenile Court's judgment terminating the parental rights of B.B.M. ("Mother") to her four children. After a second trial, the Juvenile Court held that: (1) there was clear and convincing evidence that grounds existed to terminate Mother's parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(2) and (g)(3); (2) there was clear and convincing evidence that termination of Mother's parental rights was in the children's best interest; and (3) that the Department of Children's Services ("DCS") had made reasonable efforts to assist Mother to reunite with her children. Mother appeals challenging each of these rulings. After a careful review of the record, we affirm the Juvenile Court's judgment in all respects.
OPINION Background
This is our second occasion to consider whether the Juvenile Court properly terminated Mother's parental rights to her four children, who are currently ages 10, 11, 14, and 16. The first petition to terminate Mother's parental rights was filed on October 21, 2002. Following a trial, the Juvenile Court terminated Mother's parental rights based on Mother's inability:
to provide a suitable home and demonstrated lack of concern for the children [which preclude] an early return of the children to her care, conditions which led to the removal still persist, other conditions persist which would in all probability cause the children to be subjected to further abuse and neglect and mother has failed to comply in a substantial manner with the permanency plan. These grounds have been proven by clear and convincing evidence.
See Dep't of Children's Servs. v. B.B.M., No. E2004-00491-COA-R3-PT, 2004 WL 2607769, at *3 (Tenn.Ct.App. Nov. 17, 2004), no appl. perm. appeal filed. The Juvenile Court also determined that there was clear and convincing evidence that termination of Mother's parental rights was in the best interest of the children. Id. Mother appealed to this Court. We reversed the termination of Mother's parental rights because the record on appeal contained insufficient evidence, including the lack of many crucial documents, which rendered this Court unable to undertake an appropriate review of the Juvenile Court's judgment. Thus, we never reached the issue of whether clear and convincing evidence had been presented to the Juvenile Court to establish grounds for terminating Mother's parental rights, or whether it had been proven by clear and convincing evidence that such termination was in the children's best interest. We stated:
By the time of the first trial, the children's father had voluntarily surrendered his parental rights. By the time of the second trial, the children's biological father was deceased.
Having an adequate record on appeal is critical to this Court to enable it to review the judgment of the lower court, and is even more crucial when fundamental constitutional rights are at stake. Due to the unfortunate state of the record in the present case, we have in large part been precluded from effectively reviewing the judgment of the Juvenile Court. There is insufficient evidence before us to conclude that DCS proved by clear and convincing evidence that reasonable efforts were made by DCS to assist Mother to reunite with her children. Accordingly, the judgment of the Juvenile Court is reversed and the remaining issues are pretermitted. On remand, DCS is instructed to develop a new permanency plan consistent with the children's and Mother's current situation.
B.B.M., 2004 WL 2607769, at *9.
Following remand, a new Permanency Plan was established in January of 2005 (the "2005 Plan") . The primary goal of the 2005 Plan was to help Mother provide a safe and secure home for the children so that they could be returned to Mother's care. Among other things, the 2005 Plan required Mother to: (1) resolve legal concerns involving co-habitation with her then-boyfriend and now-husband Danny Mills; (2) provide and maintain adequate housing; (3) provide proof of adequate income and resources to meet the families needs; (4) provide child support in the amount of $1 per day per child; (5) complete a parenting assessment and follow all recommendations; (6) practice and demonstrate parenting skills on a regular basis when visiting with the children; and (7) complete a mental health assessment and follow all recommendations.
There actually were four plans developed in 2005, one for each child. The plans are virtually identical. For ease of reference, we will refer to these plans collectively as the "2005 Plan."
On October 5, 2005, DCS filed a second petition to terminate Mother's parental rights to all four children. In this petition, DCS claimed Mother had failed to substantially comply with the statement of responsibilities contained within the 2005 Plan. DCS also claimed that: (1) the children had been removed from Mother's care for a period of at least six months; (2) that the conditions which led to the children's removal still persisted or other conditions existed which would prevent their safe return to Mother's care; (3) there was little likelihood that these conditions would be remedied in the near future; and (4) continuation of the parent/child relationship would greatly diminish the children's chances of early integration into a safe, stable, and permanent home. DCS also alleged that termination of Mother's parental rights was in the children's best interest.
The trial took three days. We will summarize the pertinent testimony. The first witness was Patricia Johnson ("Johnson"), a case manager with DCS. Johnson has worked with Mother and her four children since November of 2004. Johnson stated that the children have been in DCS custody since 1998. The children currently are together in the same foster home they have been in since 2000. The foster parents hope to adopt all four children. Johnson testified that she developed the most recent permanency plan in January of 2005. According to Johnson:
We went through the perm plans . . . that she had prior, and I went through a social history intake of what she would need to do in order to bring her children home. We established the goals, and she did it over the phone because she didn't have transportation to the meeting.? [T]hen I met with her and Danny in my office . . . and we went over the Perm Plan line by line and discussed some other issues.?
Johnson then testified to each of the goals contained in the 2005 Plan as set forth above. Johnson added that she discussed the goals and requirements of the 2005 Plan with Mother 44 times over the course of a year. Thirteen of those discussions took place at court hearings, staffing reviews, and before the foster care review board.
Johnson explained that she conducted a home visit in March of 2005. The house where Mother was living was "completely enclosed in plastic so it would be warm?." There were buckets along the front of the house to catch rain water because there was no running water in the house. The was a small bedroom for the two boys that had been divided in half with a partition. A separate bedroom was being built for the two girls. There was only one bed in the new bedroom for the two girls to share. The bedroom for the two girls was not completed and there was a gaping hole of 2 to three 3 inches at the bottom of the bedroom door which lead outside to a porch. There were exposed electrical wires on the porch. Because there was no running water, there were no adequate toilet facilities. Notwithstanding the foregoing, Johnson did state that Mother kept the house neat and clean. Johnson testified that she discussed the housing situation with Mother and on several occasions provided Mother with a resource list containing potentially available low-income housing. Johnson stated that she discussed the housing situation with Mother 28 times, with each of these discussions being documented in Johnson's file. Mother informed Johnson on several occasions over several months that she ( i.e., Mother) owned a trailer and was going to have the trailer moved to a different location and that this trailer would be suitable for Mother and the four children. It turned out that Mother never owned such a trailer. Johnson testified that she conducted another home visit in February of 2006. No improvements had been made by that time and the room that was being built onto the house for the two girls was "cracking" up and down the walls.
The 2005 Plan also required Mother to establish a budget and to be able to care for the children financially. Mother told Johnson that she earned $200 a week from a computer business and sales of Avon products. Mother also received disability benefits. Mother claimed to have income of $4,600 the previous year from sources other than her disability benefits. Mother received $579 per month in disability benefits. Because Mother was earning money over and above her disability benefits, the 2005 Plan required Mother to pay child support of $1 per day for each child. Mother never paid any child support. Mother told Johnson that her attorney "told her not to."
Johnson testified that she contracted with the Foothills Agency to conduct a parenting assessment and to make recommendations. One of the recommendations was for Mother to have a mental health assessment. Mother did not undertake a mental health assessment. Mother did, however, attend and complete several parenting classes.
Mother's visits with the children were supervised. At the first visit after Johnson was assigned to Mother's case, the two oldest children told Mother they did not want to visit with her anymore. Mother never visited with the oldest two children again. By the time of trial, it had been over a year since Mother had had any contact with the two oldest children. After the first visit, Mother never requested again to see the oldest two children. When asked to describe Mother's visits with the youngest two children, Johnson described those visits as "chaotic." According to Johnson, Mother sent the foster parents a letter stating she would give them custody of the two oldest children if they did not change the children's names and met certain other conditions. Johnson stated that none of the children have any sort of a relationship with Mother. Mother's current husband claims to be the biological father of one of Mother's children. Johnson added that during the supervised visits, Mother paid attention only to that child, to the exclusion of the other child.
Cynthia Ellison ("Ellison") worked for the Foothills Agency and also was assigned to assist Mother and her children. Ellison began working with Mother in May of 2005. Ellison recommended Mother have a mental health assessment, but to Ellison's knowledge that never was done. Ellison stated that on a couple of occasions, she worked with Mother and Johnson in attempting to establish a budget for Mother. According to Ellison, Mother's monthly expenses exceeded her monthly income, and this did not take into account increased expenses that would occur if Mother regained custody of the four children.
When asked if she discussed Mother's housing situation with Mother, Ellison stated that she had, then added:
Yes, we discussed [housing] . . . [o]n a weekly basis when she would first come in, I would try to meet with her for a few minutes before the children got there just to say, "What progress have you made?", you know, "What appointments have we kept?", and things like that, and I would always ask her about housing. "Has your housing situation changed? Have you followed through with, you know, X amount of this and whatever." And so it was always yes. You know, she had checked into buying a home at one point maybe, getting her other home . . . finished with water and all that, . . . and when we closed our case, none of that had been completed.
Q. Why did you close your case?
A. Because at the time I was leaving the Foothills, my job, and the State had asked us at that time to close it because we had been in there for so long?.
Q. How long had Foothills been in there?
A. A year, right at a year.
Q. Had there been any progress? Had you seen any progress in the time you had the case?
A. No.
Q. Did you discuss the Permanency Plan with her?
A. Yes, uh-huh.
Q. Did she understand the goals of that Permanency Plan?
A. Yes.
* * *
Q. During the entire time that you all did all of your intakes — I mean all of your visits and all of your requests to Mrs. Mills for mental health and housing, etcetera, did you see any progress at all?
A. No, I did not.
Ellison went on to explain that she met with Mother a total of 46 times, and each time she discussed the requirements of the Permanency Plan with Mother.
There were numerous other witnesses for DCS at trial. For example, there was testimony from several DCS caseworkers who worked with Mother prior to this Court's reversal of the first judgment terminating Mother's parental rights. These witnesses testified that Mother had failed to complete the requirements of the various permanency plans that had been developed beginning as far back as 1999. One of the managers of a low-income housing complex testified that Mother never applied for housing at that facility. The foster parents also testified to the various extra-curricular activities the children engage in and generally as to how well the children were doing in their care. The foster parents could not recall a single time when Mother had called to speak with the children.
Mother's oldest child, B.D.R., testified that she was sixteen years old and attending high school. B.D.R. stated that she has been living with the foster parents since 2001, that she desired to stay with the foster parents, and that she wanted the foster parents to adopt her. B.D.R. stated that Mother left her when B.D.R. was seven years old. Mother left the family at Christmas time and said she did not want the children anymore. B.D.R. had no contact with Mother for the next three or four years and did not start having contact again until required to do so by DCS. When B.D.R. told Mother that she did not want to visit with her anymore, Mother told her "Okay". B.D.R. added that Mother acted "like it was nothing." B.D.R. testified that she and her three siblings are happy with the foster parents.
Mother's second oldest child, B.B., also testified. B.B.'s testimony was consistent with the testimony of his older sister to the effect that he liked where he was living and wanted the foster parents to adopt him.
Mother testified that she and her husband recently had undertaken some repairs to the house they live in. Specifically, they painted the outside of the house and there now is running water. Mother obtained running water in the house approximately three months before the trial. Mother also has carpeted various areas of the house. Mother stated she is receiving SSI benefits because of a physical disability involving her back and being blind in one eye. Mother attended several different parenting classes over the years and received certificates demonstrating that she completed those classes. Mother testified that when the two oldest children told her they did not want to visit with her anymore, she told them they could visit any time they wanted to, but she was not going to force them to visit. Mother claimed she was bothered by the trial testimony of her two oldest children and she hoped she would be able to build a relationship with them in the future. When asked if she thought DCS had helped her to meet the requirements of the permanency plans, Mother stated that they had not. According to Mother:
Well, through most of the caseworkers, you know, they holler you have to do this or do that. I've asked a few of them if they could help with some of the appointments or whatever, and they said that it was my full responsibility to do whatever I needed to do to fulfill those Perm Plans.
On cross-examination, Mother stated that Johnson was interested in helping her, but the other DCS caseworkers were not.
Mother testified that: (1) she believed she had done what was necessary to regain custody of the children; (2) she has a proper home to care for the children; and (3) the parenting classes have given her adequate information and resources to care for the children. With regard to whether she was able to care for the four children financially, Mother stated there was assistance out there to help her if she regained custody. Mother stated that she was working part-time as an "unregulated child care provider." Mother provided child care as part of a program through DHS and her home has been approved by DHS for Mother to provide child-care services. Mother testified that DCS would not permit her to make child support payments because she was receiving disability payments.
Following the three day trial, the Juvenile Court entered a thorough judgment which terminated Mother's parental rights. The Juvenile Court stated, inter alia, as follows:
[T]he court finds by clear and convincing evidence that the children have been removed from the home of [Mother] for more than six months and that the conditions that led to the children's removal, in all reasonable probability would prevent the children's safe return to the home. Specifically, the children have been out of the home since 1998. That these children were found to be dependent and neglected by this Court and were placed in the custody of the Department of Children's Services; the Department of Children's Services made reasonable efforts to prevent removal; the Department has made reasonable efforts to assist the parent to establish a suitable home for the children for a period of four (4) months following the removal, but [Mother] has failed to comply with the terms of the permanency plans and has not obtained adequate housing to provide a suitable home even though [Mother was provided] with sufficient information regarding housing, and has demonstrated a lack of concern for the children to such a degree that there is little likelihood that the situation will be remedied in the near future or unlikely that [Mother] will be able to provide a suitable home for the children at an early date;
That the children have been removed from the home of [Mother] by order of this Court for more than six (6) months; the conditions which led to the children's removal still persist; conditions still persist which in all probability would cause the children to be subjected to further abuse and neglect and which, therefore, in all probability would prevent the children's safe return to the care of [Mother]; there is little likelihood that these conditions will be remedied at an early date so that these children can be returned to [Mother] in the near future; the continuation of the legal parent and child relationship greatly diminishes the children's chances of early integration into a safe, stable and permanent home;
That [Mother] has failed to comply in a substantial manner with those reasonable responsibilities set out in the foster care plan, has not attended and completed the mental health counseling, has not obtained adequate housing or provided a budget, which would indicate that she would be able to meet the financial needs of the children related to remedying the conditions which necessitate foster care placement; during the trial, four different [DCS] Case Workers testified and introduced Permanency Plans.?
The caseworkers testified that [Mother] had attended some parenting classes and had made some efforts to comply, but had never completed any of the Permanency Plans, which have been submitted to her.
Additionally, members of the Hancock County Foster Care Review Board . . . testified that they had various reviews of the case and meetings with the caseworkers and [Mother] and that there had not been compliance by [Mother] for a reunification with her children. All the Foster Care Review Board Members were unanimous in stating that they felt it was in the best interest of the children that the rights of the mother be terminated.
* * *
Furthermore, the Court finds that the Department of Children's Services has made reasonable efforts to achieve the goal of the Permanency Plans and to achieve permanency for the children.
Based upon the foregoing, the court finds by clear and convincing evidence that there has been substantial noncompliance by [Mother] with the Statement of Responsibilities in the various Permanency Plans, which have been submitted.
Furthermore, the court finds by clear and convincing evidence that the children have been removed from the home of [Mother] for more than six months and the conditions, which would subject the children to further abuse and/or neglect still persist.
Furthermore, due to the fact that this had been an ongoing process for approximately eight years, the court finds by clear and convincing evidence that there is little likelihood that the situation will be remedied in the near future.
Therefore, the court finds by clear and convincing evidence that the grounds for termination of parental rights of [Mother] have been established. . . .
The Juvenile Court then discussed the various factors contained in Tenn. Code Ann. § 36-1-113(i) which are to be considered when determining whether termination of parental rights is in the child's best interest. After discussing the factors applicable to this case, the Juvenile Court determined that there was clear and convincing evidence that termination of Mother's parental rights was in all four of the children's best interest. Mother's second appeal followed.
Mother raises three issues. First, Mother claims there was insufficient evidence to terminate her parental rights on either of the statutory grounds relied upon by the Juvenile Court. Second, Mother claims the Juvenile Court erred when it concluded that clear and convincing evidence had been presented that termination of her parental rights was in the children's best interest. Mother's third issue is a claim that her parental rights were improperly terminated because DCS failed to exercise reasonable efforts on her behalf.
Discussion
Our Supreme Court recently reiterated the standard of review for cases involving termination of parental rights. According to the Supreme Court:
This Court must review findings of fact made by the trial court de novo upon the record "accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence is otherwise." Tenn. R. App. P. 13(d). To terminate parental rights, a trial court must determine by clear and convincing evidence not only the existence of at least one of the statutory grounds for termination but also that termination is in the child's best interest. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)). Upon reviewing a termination of parental rights, this Court's duty, then, is to determine whether the trial court's findings, made under a clear and convincing standard, are supported by a preponderance of the evidence.
In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006).
In Dep't of Children's Servs. v. D.G.S.L., this Court discussed the relevant burden of proof in cases involving termination of parental rights. Specifically, we observed:
It is well established that "parents have a fundamental right to the care, custody, and control of their children." In re Drinnon, 776 S.W.2d 96, 97 (Tenn.Ct.App. 1988) (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)). "However, this right is not absolute and parental rights may be terminated if there is clear and convincing evidence justifying such termination under the applicable statute." Id. (citing Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)).
Termination of parental or guardianship rights must be based upon a finding by the court that: (1) the grounds for termination of parental or guardianship rights have been established by clear and convincing evidence; and (2) termination of the parent's or guardian's rights is in the best interests of the child. Tenn. Code Ann. § 36-1-113(c). Before a parent's rights can be terminated, it must be shown that the parent is unfit or substantial harm to the child will result if parental rights are not terminated. In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn.Ct.App. 1998). Similarly, before the court may inquire as to whether termination of parental rights is in the best interests of the child, the court must first determine that the grounds for termination have been established by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c). . . .
Dep't of Children's Servs. v. D.G.S.L., No. E2001-00742-COA-R3-JV, 2001 WL 1660838, at *6 (Tenn.Ct.App. Dec. 28, 2001), no appl. perm. appeal filed.
Termination of parental rights may be based upon a number of statutory grounds. The statutory provisions relied upon by the Juvenile Court in the present case provide that parental rights can be terminated for the following reasons:
(2) There has been substantial noncompliance by the parent or guardian with the statement of responsibilities in a permanency plan or a plan of care pursuant to the provisions of title 37, chapter 2, part 4;
(3) The child has been removed from the home of the parent or guardian by order of a court for a period of six (6) months and:
(A) The conditions that led to the child's removal or other conditions that in all reasonable probability would cause the child to be subjected to further abuse or neglect and that, therefore, prevent the child's safe return to the care of the parent(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions will be remedied at an early date so that the child can be safely returned to the parent(s) or guardian(s) in the near future; and
(C) The continuation of the parent or guardian and child relationship greatly diminishes the child's chances of early integration into a safe, stable and permanent home.
Tenn. Code Ann. §§ 36-1-113(g)(2) and (g)(3) (Supp. 2006).
We first will discuss whether the Juvenile Court erred when it terminated Mother's parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(2). The 2005 Plan required Mother to accomplish several objectives, including being able to provide and maintain adequate housing, provide proof of income and resources to adequately meet the children's needs, complete a parenting assessment and follow all recommendations, and complete a mental health assessment and follow all recommendations. The Juvenile Court correctly noted that the children have been in DCS custody for many years. Well before the 2005 Plan was implemented, DCS made it clear to Mother that the lack of proper housing was a significant impediment to Mother regaining custody of the children. Mother failed to obtain adequate housing for many years. When the second petition was filed, there still were numerous problems with Mother's house including, but not limited to, the house being enclosed with plastic to keep it warm and no running water. It was not until three months before trial before some of these problems were remedied. Even with what has been "fixed", there was clear and convincing evidence presented to the Juvenile Court that Mother's house was inadequate to care for four children. Even though Mother was provided with contact numbers for various people who could help Mother find low-income housing, Mother never adequately pursued these opportunities.
In addition, there is overwhelming evidence that Mother would not be able to care for the children financially should custody of the children be returned to her. We also note that Mother never completed the mental health assessment required by the 2005 Plan even though she had sufficient time and opportunity to do so.
When considering the requirements of the 2005 Plan as a whole, there was clear and convincing evidence presented to the Juvenile Court that Mother failed to comply substantially with the terms of that Plan. We, therefore, affirm the Juvenile Court's conclusion that grounds had been proven by clear and convincing evidence to terminate Mother's parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(2).
The next issue is whether the Juvenile Court properly concluded that grounds existed to terminate Mother's parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(3). There is no doubt that the children had been removed from Mother's care for at least six months. The lack of proper housing and financial resources to care properly for the four children unquestionably can be deemed "other conditions" which would subject the children to neglect and prevent their safe return to Mother' care. Given that Mother has been unable to remedy these problems for many years, it is unlikely that these conditions would be remedied at any time in the near future. Continuing the parent/child relationship at this point would greatly diminish the children's chances of integrating into a safe, stable and permanent home. In fact, at least for the two oldest children, continuing the parent/child relationship could very well eliminate their chances of integrating into a permanent home. We conclude that there was clear and convincing evidence presented to the Juvenile Court that grounds existed to terminate Mother's parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(3).
Having concluded there was sufficient evidence of grounds to terminate Mother's parental rights, we now must determine whether there was clear and convincing evidence that termination of Mother's parental rights was in the children's best interest. Tenn. Code Ann. § 36-1-113(i) (Supp. 2006) sets forth a list of non-exclusive factors to consider when making this determination. These factors are:
(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 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) (Supp. 2006).
Given that the children have been in foster care since 2000 and Mother still is unable to care for the children, it necessarily follows that Mother is either unable or unwilling to make an adjustment of circumstances such that it would be safe to return the children to her care. Notwithstanding the numerous efforts made by DCS and other agencies on Mother's behalf over the years, Mother has been unable to effect a lasting adjustment to her situation. There is little, if any, evidence of a meaningful relationship between Mother and the two youngest children. We safely can say there is no meaningful relationship between Mother and the two oldest children. Since all four of the children have been with the same foster parents for many years, abruptly changing the children's caretakers likely would be disruptive and effect the children's emotional well-being. When considering all of the relevant factors, including the trial testimony of two of Mother's children, we agree with the Juvenile Court that there was clear and convincing evidence that termination of Mother's parental rights was in the best interest of all four children.
The final issue is Mother's claim that DCS failed to make reasonable efforts on her behalf. As we stated in Mother's first appeal:
[W]e must ascertain whether the Department made reasonable efforts to prevent the need for removal and thereafter to return the children safely to their home for this is not a case where reasonable efforts are excused. Unless remaining with the parent exposes the children to substantial risk of harm, the Department must make reasonable efforts to prevent the need for removal of the children prior to separating the children from the family, Tenn. Code Ann. § 37-1-166(a)(1), and thereafter to return the children to their home unless it exposes the children to substantial harm. Tenn. Code Ann. § 37-1-166(a)(2); Tenn. Code Ann. § 37-1-166(g)(2).
The Department must establish by clear and convincing evidence that it made reasonable efforts to reunite the children with the parent. In re Valentine, 79 S.W.3d at 546; In re C.M.M. S.D.M., 2004 Tenn. App. LEXIS 160, No. M2003-01122-COA-R3-PT, 2004 WL at *11, (Tenn.Ct.App. March 9, 2004); Tenn. Code Ann. § 36-1-113(c). This burden requires that the Department present sufficient evidence to enable us to conclude, without serious or substantial doubt, that the efforts were reasonable under the circumstances. In re Valentine, 79 S.W.3d at 546; Walton v. Young, 950 S.W.2d 956, 960 (Tenn. 1997); In re C.D.B., 37 S.W.3d 925, 927 (Tenn.Ct.App. 2000).
B.B.M., 2004 WL 2607769, at *6 (quoting In re C. LaC. and D.L., No. M2003-02164-COA-R3-PT, 2004 WL 533937, at * 5 (Tenn.Ct.App. Mar. 17, 2004) (footnote omitted)).
Because of the inadequate record on the first appeal, we concluded that there was insufficient evidence that DCS had made a reasonable effort on Mother's behalf. It is important to note that we did not conclude that DCS actually had failed to make a reasonable effort on Mother's behalf, but rather only that the inadequate record made us unable to make that determination. We stated:
In all fairness, we expect that DCS may have made other reasonable efforts to assist Mother in the reunification process. The problem again falls back to the inadequacy of the record on appeal. Were we to have the permanency plans and at least some of the DCS case file in the record, or testimony from the case manager assigned to the file [during relevant time frames]?, it certainly is possible that we would conclude that the evidence was clear and convincing that reasonable efforts had been made by DCS. However, this evidence is missing, and we refuse simply to assume reasonable efforts were taken by DCS on Mother's behalf when such a fundamental right is at stake.
B.B.M., 2004 WL 2607769, at *8.
On this second appeal, there are no such deficiencies in the record. This Court has been provided with the necessary information to enable us to determine if DCS made reasonable efforts on Mother's behalf. The record contains testimony from several caseworkers regarding their efforts over many years to assist Mother. All of the permanency plans developed on Mother's behalf are in the record. The permanency plans set forth additional information about DCS's efforts made on Mother's behalf. In addition, we have Johnson's testimony as discussed above regarding the efforts she made on Mother's behalf. We conclude that DCS met its burden and established by clear and convincing evidence that it made reasonable efforts under the circumstances to reunite Mother with her four children, and we affirm the Juvenile Court's determination on this final issue.
Conclusion
The judgment of the Juvenile Court is affirmed, and this cause is remanded to the Juvenile Court for collection of the costs below. Costs on appeal are taxed to the Appellant, B.B.M., and her surety, if any.