text:
    In the Matter of C.T.S.
    Court of Appeals of Tennessee, at Jackson.
    July 22, 2004 Session.
    Aug. 16, 2004.
    Application for Permission to Appeal Denied by Supreme Court Nov. 8, 2004.

      Cyburn Hillard Sullivan, III and Richard D. Cartwright, Covington, Tennessee, for the appellants, V.A.T. and W.N.S. a/k/a N.W.S.
    Paul G. Summers, Attorney General and Reporter, and Elizabeth C. Driver, Assistant Attorney General, for the appellee, State of Tennessee, Department of Children’s Services.
   OPINION

DAVID R. FARMER, J„

delivered the opinion of the court,

The trial court terminated Father’s parental rights based on Tenn.Code Ann. § 36 — 1—113(g)(6) and Mother’s parental rights based on TenmCode Ann. § 36 — 1— 113(g)(1). Mother and Father appeal. We affirm.

This is a termination of parental rights case. The facts of this case are undisputed. VA.T. (“Mother”) has four biological children.' The two eldest children have not been in Mother’s custody since 1997. The Department of Children’s Services (“DCS”) removed a third child, D.T. from Mother’s custody in 1999, when D.T. was six days old, and placed him in foster care. D.T. tested positive for cocaine at birth, and in 2000 DCS petitioned to terminate Mother’s parental rights to D.T. However, Mother voluntarily surrendered her rights to D.T., and D.T.’s foster parents adopted him in 2001. C.T.S., the child who is the subject of this action, is the half-brother of D.T. C.T.S. currently is in foster care with the same family that adopted D.T. This family also desires to adopt C.T.S.

C.T.S. has been in DCS custody almost since birth. He was born February 16, 2001 with cocaine in his system, and Mother has admitted to smoking crack cocaine shortly before the birth. DCS become involved with C.T.S. when the physician attending C.T.S.’s birth contacted it expressing concern that parents were unable to care for the child. In his correspondence with DCS, the attending physician stated that Mother had received no prenatal care during her pregnancy, that she had arrived at the hospital with pain and bleeding caused by the toxic effects of cocaine, that she had been in this condition for as many as 24 hours, and that both she and C.T.S. had tested positive for cocaine. He also stated that Mother was addicted to crack cocaine and that she was “unable to control her own environment much less that of this newborn child.” C.T.S. has been in the care of his foster family since he was 13 days old.

During the course of its investigation, DCS determined there was an outstanding warrant for C.T.S.’s father, W.N.S. (a/k/a N.W.S.; hereinafter, “Father”). Father subsequently was arrested on drug charges. DCS initially placed C.T.S. with his paternal aunt, but removed him to DCS custody on February 21, 2001, after he was left unattended. Shortly thereafter, DCS placed C.T.S. in foster care with the family caring for D.T.

In March 2001, Mother was charged with drug offenses. At the time of her arrest, she was on probation from a 1997 drug offense. Both Mother and Father were convicted of selling cocaine. In November 2001, Father was sentenced to 15 years incarceration. Mother entered a plea of nolo contendere in August 2001, and received a nine year prison sentence.

DCS petitioned for the termination of Mother’s and Father’s parental rights on March 1, 2002. On April 15, 2003, one day before the trial, Father filed a motion for continuance and a motion requesting recu-sal of the trial judge. Mother orally joined Father’s motion for continuance. The trial court denied both motions. By order of May 21, 2003, the trial court terminated Father’s rights based on Tenn.Code Ann. § 36-l-113(g)(6), finding that Father had been incarcerated under a 15 year sentence while C.T.S. was under eight years of age. The trial court additionally found Mother had abandoned C.T.S.; that she had exhibited wanton disregard for C.T.S.’s safety and willfully had placed him in physical danger before his birth; that the circumstances leading to C.T.S.’s removal continued to exist; and that there was little likelihood that C.T.S. could safely be returned in the near future. The trial court also determined that C.T.S. had bonded with his foster family and half brother, that he was well cared for, and that termination of Mother’s and Father’s parental rights was in C.T.S.’s best interest. Mother and Father filed a timely notice of appeal to this Court.

Mother filed a motion to consider post-judgment facts in this Court, which was granted. In her motion, Mother submits that she was paroled on May 21, 2004. She further asserts that, while incarcerated, she completed her G.E.D. and participated in several programs, including a parenting class, a food and nutrition program, and a 12-step serenity program and that she currently lives with her grandmother in Covington, Tennessee.

Issues Presented

Mother and Father present the following issues, as we restate them, for review by this Court:

(1) Whether the trial court properly denied Father’s motion for recusal.
(2) Whether the trial court properly denied Father’s and Mother’s motion for continuance.
(3) Whether clear and convincing evidence supports the trial court’s judgment.

Standard of Review

Our standard of review of a trial court sitting without a jury is de novo upon the record. Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.1995). There is a presumption of correctness as to the trial court’s findings of fact, unless the preponderance of evidence is otherwise. Tenn. R.App. P. 13(d). However, no presumption of correctness attaches to a trial court’s conclusions on issues of law. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000); Tenn. R.App. P. 13(d). We review a trial court’s determinations on motions of recusal under an abuse of discretion standard. Caudill v. Foley, 21 S.W.3d 203, 215 (Tenn.Ct.App.1999). The trial court’s determination on whether to grant a motion for continuance is likewise reviewed under an abuse of discretion standard. Knight v. Knight, 11 S.W.3d 898, 905 (Tenn.Ct.App.1999).

Tennessee Code Annotated § 36-1-113 governs the termination of parental rights. The code provides, in pertinent part:

(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.

Tenn.Code Ann. § 36-l-113(c)(2001). This section also provides the grounds on which parental rights may be terminated. The existence of any statutory basis for termination of parental rights will support the trial court’s decision to terminate those rights. In re C.W.W., N.W.W., Z.W.W., & A.L.W., 37 S.W.3d 467, 473 (Tenn.Ct.App.2000).

A court’s determination to terminate parental rights must be supported by clear and convincing evidence. Id. at 474. The “clear and convincing evidence” standard is more exacting than the “preponderance of the evidence” standard, although it does not demand the certainty required by the “beyond a reasonable doubt” standard. Id. To be clear and convincing, the evidence must eliminate any substantial doubt and produce in the fact-finder’s mind a firm conviction as to the truth. Id. Insofar as the trial court’s determinations are based on its assessment of witness credibility, this Court will not reevaluate that assessment absent evidence of clear and convincing evidence to the contrary. See Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn.1999).

Motion for Recusal

All litigants are entitled to the “cold neutrality of an impartial court” and have a right to have their cases heard by fair and impartial judges. Kinard v. Kinard, 986 S.W.2d 220, 227 (Tenn.Ct.App.1998)(quoting Leighton v. Henderson, 220 Tenn. 91, 98, 414 S.W.2d 419, 421 (1967)). Thus, a judge should recuse himself or herself if there is any doubt regarding the judge’s ability to preside impartially or if the judge’s impartiality reasonably can be questioned. Caudill, 21 S.W.3d at 214. Parties challenging a judge’s impartiality “must come forward with some evidence that would prompt a reasonable, disinterested person to believe that the judge’s impartiality might reasonably be questioned.” Davis v. Dep’t of Employment Sec., 23 S.W.3d 304, 313 (Tenn.Ct.App.1999). The alleged bias or prejudice of the judge, moreover, must come from an extrajudicial source and not be based on what the judge see or hears before him. Wilson v. Wilson, 987 S.W.2d 555, 562 (Tenn.Ct.App.1998). Additionally, a party must seek recusal in a timely fashion, immediately after he becomes aware of such prejudice or impartiality. Gotwald v. Gotwald, 768 S.W.2d 689, 694 (Tenn.Ct.App.1988).

In the case before this Court, Father moved for the trial court’s recusal on April 15, 2003, one day before the April 16 trial date. The basis of Father’s motion was his belief that the trial court had prejudged the case and that the court would not view the evidence objectively. We find nothing in the record to support Father’s contention, particularly in light of the fact that statutory grounds existed to terminate Father’s rights based on undisputed objective facts. We find no abuse of discretion and affirm the denial of Father’s motion for recusal.

Motion for Continuance

Father’s motion for continuance likewise was made the day before trial. Although Mother did not file a written motion, Mother orally joined Father’s motion for continuance at trial. Trial courts have wide discretion to determine whether a motion for continuance should be granted, but must exercise this discretion in an efficient manner. Coakley v. Daniels, 840 S.W.2d 367, 370 (Tenn.Ct.App.1992). The age of the cause of action is a primary factor for consideration by the trial court in determining whether a continuance is justified. Id.

The basis of Father’s motion was that his current counsel had recently been appointed to the case and that counsel was unable to meet with Father at the West Tennessee Penitentiary until April 11, 2003. However, the trial court terminated Father’s parental rights based on Tennessee Code Annotated § 36—1—113(g)(6), and it is undisputed that Father was sentenced to 15 years incarceration when C.T.S. was under eight years of age. No length of continuation would have changed this fact or eliminated the grounds on which Father’s rights were terminated. We affirm the denial of Father’s motion for continuance.

In her oral motion to join Father’s motion for continuance, Mother stated that her basis for seeking a continuance was her up-coming hearing before the parole board in July 2003. We note, however, that Mother was denied parole in July 2003. Further, the trial court terminated Mother’s parental rights based on Mother’s conduct prior to her incarceration. Thus, continuance of this matter would have served no useful purpose. We find no abuse of discretion by the trial court and affirm the trial court’s denial of Mother’s oral motion.

Termination of Parental Rights

We next turn to whether clear and convincing evidence supports a finding that grounds exist for termination of Father’s parental rights based on Tennessee Code Annotated § 36—1—113(g)(6) and the termination of Mother’s parental rights based on abandonment as defined in Section 36-1-102(1). Section 36—1—113(g)(6) provides that grounds for termination of parental rights exists where:

The parent has been confined in a correctional or detention facility of any type, by order of the court as a result of a criminal act, under a sentence of ten (10) or more years, and the child is under eight (8) years of age at the time the sentence is entered by the court.

Tenn.Code Ann. § 36-l-113(g)(6)(2001). The parties do not dispute that Father is serving a sentence of over ten years or that the sentence against him was entered when G.T.S. was under eight years of age'. We accordingly affirm the finding that grounds exist for termination of Father’s parental rights under Section 36-1-113(g)(6).

The trial court found as grounds for terminating Mother’s parental rights that Mother had abandoned C.T.S. as provided by Section 36 — 1—113(g)(1). Abandonment is defined by the Code as:

(1)(A) “Abandonment” means, for purposes of terminating the parental or guardian rights of parent(s) or guardian(s) of a child to that child in order to make that child available for adoption, that:
(i) For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent(s) or guardian(s) of the child who is the subject of the petition for termination of parental rights or adoption, that the parent(s) or guardian(s) either have willfully failed to visit or have willfully failed to support or make reasonable payments toward the support of the child;
(ii) The child has been removed from the home of the parent(s) or guardian(s) as the result of a petition filed in the juvenile court in which the child was found to be a dependent and neglected child, as defined in § 37-1-102, and the child was placed in the custody of the department or a licensed child-placing agency, that the juvenile court found, or the court where the termination of parental rights petition is filed finds, that the department or a licensed child-placing agency made reasonable efforts to prevent removal of the child or that the circumstances of the child’s situation prevented reasonable efforts from being made prior to the child’s removal; and for a period of four (4) months following the removal, the department or agency has made reasonable efforts to assist the parent(s) or guardian(s) to establish a suitable home for the child, but that the parent(s) or guardian(s) have made no reasonable efforts to provide a suitable home and have demonstrated a lack of concern for the child to such a degree that it appears unlikely that they will be able to provide a suitable home for the child at an early date;
(iii) A biological or.legal father has either willfully failed to visit or willfully failed to make reasonable payments toward the support of the child’s mother during the four (4) months immediately preceding the birth of the child; provided, that in no instance shall a final order terminating the parental rights of a parent as determined pursuant to this subdivision (iii) be entered until at least thirty (30) days have elapsed since the date of the child’s birth;
(iv) A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent’s or guardian’s incarceration, or the parent or guardian has engaged in conduct prior to incarceration which exhibits a wanton disregard for the welfare of the child; or
(v) The child, as a newborn infant aged seventy-two (72) hours or less, was voluntarily left at a facility by such infant’s mother pursuant to § 68-11-255; and, for a period of thirty (30) days after the date of voluntary delivery, the mother failed to visit or seek contact with the infant; and, for a period of thirty (30) days after notice was given under § 36-l-142(e), and no less than ninety (90) days cumulatively, the mother failed to seek contact with the infant through the department or to revoke her voluntary delivery of the infant.
(B) For purposes of this subdivision (1), “token support” means that the support, under the circumstances of the individual case, is insignificant given the parent’s means;
(C) For purposes of this subdivision (1), “token visitation” means that the visitation, under the circumstances of the individual case, constitutes nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child;
(D) For purposes of this subdivision (1), “willfully failed to support” or “willfully failed to make reasonable payments toward such child’s support” means that, for a period of four (4) consecutive months, no monetary support was paid or that the amount of support paid is token support;
(E) For purposes of this subdivision (1), “willfully failed to visit” means the willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation;
(F) Abandonment may not be repented of by resuming visitation or support subsequent to the filing of any petition seeking to terminate parental or guardianship rights or seeking the adoption of a child; and
(G) “Abandonment” and “abandonment of an infant” do not have any other definition except that which is set forth in this section, it being the intent of the general assembly to establish the only grounds for abandonment by statutory definition. Specifically, it shall not be required that a parent be shown to have evinced a settled purpose to forego all parental rights and responsibilities in order for a determination of abandonment to be made. Decisions of any court to the contrary are hereby legislatively overruled;

TenmCode Ann. § 36-l-102(l)(2001).

The trial court found that Mother was incarcerated at the time DCS filed the petition to terminate her parental rights and for the four months preceding the filing of the petition; that Mother had failed to visit and willfully failed to support C.T.S.; and that Mother had engaged in conduct prior to incarceration which exhibits a wanton disregard for the welfare of the child. Having reviewed the entire record in this case, including Mother’s testimony at trial, we affirm termination of Mother’s parental rights for abandonment as defined by Section 36-l-102(l)(A)(iv). It is clear that Mother ingested crack cocaine during her pregnancy and immediately before the birth of C.T.S., knowing the effects it would have on her child. Mother’s knowledge of these effects, moreover, was more than theoretical as she previously had given birth to a child who also was born addicted to cocaine. Such conduct clearly exhibits a wanton disregard for the welfare of the child. It is also clear from the record that Mother has never attempted to support C.T.S., and that she made very little attempt to visit or contact him. We accordingly affirm the trial court’s determination that grounds existed to terminate Mother’s parental rights.

The trial court further found that termination of Mother’s and Father’s parental rights are in the best interest of .C.T.S. Neither Mother nor Father submit the trial court erred in this determination and, having reviewed the record, we agree that termination is in C.T.S.’s best interest.

Holding

In light of the foregoing, we affirm termination of Mother’s and Father’s parental rights to C.T.S. Costs of this appeal are taxed to the Appellants, V.A.T. and W.N.S., a/k/a N.W.S., and their sureties, for which execution may issue if necessary.


source: Caselaw Access Project

author: DAVID R. FARMER, J.,

license: Public Domain

text:
    In the Matter of S.R.C.
    Court of Appeals of Tennessee, at Jackson.
    Assigned On Brief July 20, 2004.
    Aug. 16, 2004.
    Application for Permission to Appeal Denied by Supreme Court Nov. 22, 2004.

      Jason C. Scott, Trenton, Tennessee, for the Appellant, M.C.
    Paul G. Summers, Attorney General and Reporter, and Juan G. Villasenor, Assistant Attorney General, for the Appellee, State of Tennessee, Department of Children’s Services.
   OPINION

DAVID R. FARMER, J.,

delivered the opinion of the court,

in which W. FRANK CRAWFORD, P.J., W.S., and HOLLY M. KIRBY, J., joined.

The trial court terminated Mother’s parental rights. We affirm.

This is a termination of parental rights case. In May 2003, the Department of Children’s Services (“DCS”) filed a petition in Gibson County Juvenile Court to terminate the parental rights of M.C. (“Mother”) to S.R.C., born May 16, 2001. In its petition, DCS also named as respondents alleged fathers S.C.S. and S.D.W. The trial court dismissed S.D.W. upon motion of DCS, and S.C.S. entered a waiver of interest in the matter. Thus, Mother was the sole respondent before the trial court when it heard this matter.

The pertinent facts of this case are undisputed. Mother suffers from paranoid schizophrenia and bipolar disorder and is “polysubstance” dependant. In addition to abusing drugs, Mother experiences auditory and visual hallucinations. Mother was incarcerated for public intoxication from September 5, 2001, until November 16, 2001. In March 2002, Mother left S.R.C. in the care of Mother’s sister. DCS removed S.R.C. from Mother’s sister after it determined that Mother’s sister had ingested Xanax and alcohol and was unfit to care for S.R.C. In April 2002, mother entered into a permanency plan which included providing child care, securing a stable home, securing financial stability through employment or public assistance, refraining from drug use, seeking drug counseling, and complying with treatment recommendations for bipolar disorder. Mother continued to abuse drugs, however, and was incarcerated on several occasions, during which S.R.C. was left with unfit caregivers.

The trial court awarded DCS temporary custody of S.R.C: in June 2002, after finding S.R.C. to be dependent and neglected and that removal was in S.R.C.’s best interest. In November 2002, Mother was admitted to a halfway house to await admission to a drug treatment facility. She refused to take a drug test, however, and consequently became ineligible to remain at the facility.

In May 2003, DCS filed a petition to terminate Mother’s parental rights and the trial court heard the matter in October 2003. At the time of trial, Mother was incarcerated. Debra Davenport (Ms. Davenport), a senior psychological examiner who had evaluated Mother, testified that, in light of Mother’s mental illness and antisocial traits, it would take several years, if ever, before Mother could provide a stable environment for S.R.C. Ms. Davenport also testified that Mother had not complied with medical treatment. The trial court also heard the testimony of Patti Cunningham (Ms. Cunningham), a DCS case manager, who testified that Mother had made no progress on the permanency plan and that Mother continued to abuse drugs and alcohol. The trial court found Mother had not complied with the permanency plan, that Mother is incompetent to provide care for S.R.C., and that termination of Mother’s parental rights is in the best interest of S.R.C. The trial court entered its final order terminating Mother’s parental rights on January 5, 2004, and Mother filed a timely notice of appeal to this Court.

Issues Presented

Mother raises the following issues, as we slightly restate them, for review by this Court:

(1) Whether DCS failed to prove by clear and convincing evidence that termination of parental rights was in the best interest of S.R.C.;
(2) "Whether DCS failed to prove by clear and convincing evidence that it used reasonable efforts to reunify the mother and child;
(3)Whether DCS failed to prove by clear and convincing evidence that Mother had failed to comply with the permanency plan where Mother’s dual diagnosis made compliance impossible.

Standard of Review

We review the determinations of a trial court sitting without a jury de novo upon the record. Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.1995). We presume the trial court’s findings of fact to be correct, unless the evidence preponderates otherwise. Tenn. R.App. P. 13(d). However, no presumption of correctness attaches to a trial court’s conclusions on issues of law. Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.2000); Tenn. R.App. P. 13(d).

Tennessee Code Annotated § 36-1-113 governs the termination of parental rights. The code provides, in pertinent part:

(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.

Tenn.Code Ann. § 36-1-113(e)(2001). This section also provides the grounds on which parental rights may be terminated. The existence of any statutory basis for termination of parental rights will support the trial court’s decision to terminate those rights. In re C.W.W., N.W.W., Z.W.W., & A.L.W., 37 S.W.3d 467, 473 (Tenn.Ct.App.2000).

A court’s determination to terminate parental rights must be supported by clear and convincing evidence. Id. at 474. The “clear and convincing evidence” standard is more exacting than the “preponderance of the evidence” standard, although it does not demand the certainty required by the “beyond a reasonable doubt” standard. Id. To be clear and convincing, the evidence must eliminate any substantial doubt and produce in the fact-finder’s mind a firm conviction as to the truth. Id. Insofar as the trial court’s determinations are based on its assessment of witness credibility, this Court will not reevaluate that assessment absent evidence of clear and convincing evidence to the contrary. See Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 788 (Tenn.1999).

Analysis

The Tennessee Code provides, in pertinent part:

Initiation of termination of parental or guardianship rights may be based upon any of the following grounds:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has occurred;
(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)(A)The child has been removed from the home of the parent or guardian by order of a court for a period of six (6) months and:
(I) The conditions which led to the child’s removal or other conditions which in all reasonable probability would cause the child to be subjected to further abuse or neglect and which, therefore, prevent the child’s safe return to the care of the parent(s) or guardian(s), still persist;
(ii) There is little likelihood that these conditions will be remedied at an early date so that the child can be safely returned to the parent(s) or guardian(s) in the near future; and
(iii) The continuation of the parent or guardian and child relationship greatly diminishes the child’s chances of early integration into a safe, stable and permanent home.

TenmCode Ann. 36 — 1—113(g)(1)— (3)(A)(2001).

The trial court specifically did not find willful abandonment or wanton disregard for the child on the part of Mother. The trial court’s final order is somewhat contradictory, however, regarding the persistence of conditions leading to the removal of S.R.C. from Mother’s care. Although the trial court stated it did not find “persistence of conditions,” the trial court also stated, “[t]he Court does find that the child was placed as a dependent and neglected child in foster care and there has been a total failure by [Mother] and no reasonable efforts by her to remedy the situation and it is unlikely she will be able to provide a suitable home.”

Upon review of the entire record in this case, we find overwhelmingly clear and convincing evidence of grounds for termination of Mother’s parental rights under section 36-1-113(g)(3)(A). As the trial court noted, Mother entered into two permanency plans in this matter, one in March 2003, and one in December 2003. She had nineteen months to comply with the plans and, although she was incarcerated for some of that time, she had a substantial amount of time during which she was not incarcerated and did little, if anything, to remedy her situation. She continued to abuse drugs and, at the time of trial, remained mentally incompetent to provide care and supervision for S.R.C.

Although we are not insensitive to Mother’s mental illness, the record reflects little effort by Mother to address her illness or to end her “polysubstance” dependency. Mother has not complied with any requirements . of the permanency plans. S.R.C. has been in DCS custody for well over six months under a finding of dependency and neglect and the conditions leading to removal of the child clearly persist. It is unlikely that Mother will be able to provide a suitable home for S.R.C. in the near future.

Additionally, we agree with DCS that clear and convincing evidence establishes grounds for termination of Mother’s parental rights under section 36-1—113(g)(8), which provides:

(B) The court may terminate the parental or guardianship rights of that person if it determines on the basis of clear and convincing evidence that:
(I) The parent or 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 impaired and is so likely to- remain so that it is unlikely that the parent or guardian will be able to assume or resume the care of and responsibility for the child in the near future, and
(ii) That termination of parental or guardian rights is in the best interest of the child.

TenmCode Ann. § 36-1-113(g)(8)(B)(2001). Termination of parental rights under this section does not require a showing of willfulness on the part of the parent. Tenn. Code Ann. § 36-1-113(8)(C)(2001). Not only does the record support termination based on this section, but, in her brief to this Court, Mother asserts that her mental health condition makes long-term drug rehabilitation a “near impossibility.”

We also agree with the trial court that clear and convincing evidence establishes that termination of Mother’s parental rights is in the best interest of the child under section 36 — 1—llSfl). S.R.C. has no meaningM relationship with Mother, and Mother cannot care for S.R.C. Mother cannot provide a safe, healthy home for S.R.C.; she cannot care for or supervise S.R.C.; Mother’s continued drug abuse and mental/emotional condition are likely to be detrimental to S.R.C. and make it unlikely that Mother will be able to care for S.R.C. in the near Mure, if ever. S.R.C. is in a safe and stable foster home, however, with a family that intends to adopt the child. Termination of Mother’s parental rights clearly is in S.R.C.’s best interest.

Holding

In light of the foregoing, we affirm the judgment of the trial court. Costs of this appeal are taxed to Mother, M.C., and her surety, for which execution may issue if necessary.

      . The Tennessee Code provides:
      (I)In determining whether termination of parental or guardianship rights is in the best interest of the child pursuant to this part, the court shall consider, but is not limited to, the following:
      (1) Whether the parent or guardian has made such an adjustment of circumstance, conduct, or conditions as to make it safe and in the child’s best interest to be in the home of the parent or guardian;
      (2) Whether the parent or guardian has failed to effect a lasting adjustment 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)(2001).


author: Justice LANG.

text:
    The STATE of Texas, Appellant, v. Sean Eric SEIBERT, Appellee.
    No. 05-03-01206-CR.
    Court of Appeals of Texas, Dallas.
    July 9, 2004.

      Charles Patrick Reynolds, Asst. Dist. Atty., Dallas, for appellant.
    Robert T. Baskett, Lyon, Gorsky, Bask-ett & Haring, L.L.P., Dallas, for appellee.
    Before Justices WHITTINGTON, WRIGHT, and LANG.
   OPINION

Opinion by

Justice LANG.

The State appeals the trial court’s order granting appellee Sean Eric Seibert’s motion to quash and dismissing the indictment. In two issues, the State argues the trial court erred in (1) testing the State’s evidence at trial in its reconsideration and granting of appellee’s motion to quash and (2) dismissing a facially valid indictment for the offense of stalking. For the reasons that follow, we resolve the first issue against the State and the second issue in its favor. Accordingly, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Appellee was indicted for a class A misdemeanor charge of stalking. Among other acts, appellee allegedly followed complainant without her knowledge, surreptitiously videotaping her as she went about her day. Later, he delivered some of these tapes to complainant’s home. Complainant found the tapes and called the police. The indictment, which tracked of the Texas Penal Code § 42.072, alleged in pertinent part that appellee:

did ... knowingly engage in conduct directed specifically toward ... complainant, that the defendant knew and reasonably believed the said complainant would regard as threatening bodily injury to the said complainant, to wit: following said complainant, and the defendant’s said conduct would cause a reasonable person to fear, and did cause the said complainant to fear, bodily injury for the said complainant....

(Emphasis added.) Appellee discovered that the dates alleged in the indictment were dates he allegedly left the videotapes at complainant’s home, not the dates he created the tapes. On April 26, 2002, ap-pellee filed a motion to quash alleging, in part, that the word “following” as used in the statute is too vague to be constitutional and that “the indictment itself is vague and fails to give proper notice to the Defendant” of the actual criminal conduct he was alleged to have committed. The trial court denied this motion. On February 12, 2003, appellant filed a supplemental and amended motion to quash on essentially the same grounds. This, too, was denied. The case went to trial on July 21, 2003. Four days into the trial on the merits, but before the State had rested, the trial court granted appellee’s original motion to quash the indictment and dismissed the jury. This appeal followed.

DISCUSSION

A. Standard of Review

When reviewing a trial court’s ruling on a motion to quash, we will not reverse unless the court abuses its discretion. Jones v. State, 111 S.W.3d 600, 605 (Tex.App.-Dallas 2003, pet. ref'd) (citing Thomas v. State, 621 S.W.2d 158, 163 (Tex.Crim.App.1981) (op. on reh’g); State v. York, 31 S.W.3d 798, 800-01 (Tex.App.-Dallas 2000, pet. ref'd)).

B. Whether the Trial Court Tested the State’s Evidence

In its first issue, the State complains about the trial court’s action in conducting four days of a jury trial and then granting the motion to quash. The State contends that the trial judge improperly used the four days of trial to test the sufficiency of the State’s evidence against the indictment. The State claims that once a trial has commenced, a trial judge lacks the authority to reconsider a motion to quash filed prior to that trial.

1. Applicable Law

A charging instrument that is valid on its face and returned by a legally constituted grand jury is sufficient to mandate trial of the charge on its merits. State v. Rosenbaum, 910 S.W.2d 934, 948 (Tex.Crim.App.1995) (dissenting op. adopted on reh’g); State v. Boado, 8 S.W.3d 15, 17 (Tex.App.-Houston [1st Dist.] 1999) pet. dism’d, improvidently granted, 55 S.W.3d 621 (Tex.Crim.App.2001). In most circumstances, a charging instrument which tracks the language of a criminal statute possesses sufficient specificity to provide a defendant with notice of a charged offense and the State need not allege facts which are merely evidentiary in nature. State v. Edmond, 933 S.W.2d 120, 128 (Tex.Crim.App.1996); DeVaughn v. State, 749 S.W.2d 62, 67 (Tex.Crim.App.1988); York, 31 S.W.3d at 800.

A motion to quash should be granted only where the language concerning the defendant’s conduct is so vague or indefinite as to deny the defendant effective notice of the acts he allegedly committed. DeVaughn, 749 S.W.2d at 67; York, 31 S.W.3d at 800-01. In making this determination, an indictment must be facially tested by itself under the law, as a pleading. Rosenbaum, 910 S.W.2d at 948. It can neither be supported nor defeated by evidence introduced at trial. Id.; Boado, 8 S.W.3d at 17; see State v. Habern, 945 S.W.2d 225, 227 (Tex.App.-Houston [1st Dist.] 1997, no pet.). A trial court that considers such evidence errs “grievously.” Habern, 945 S.W.2d at 226 (citing Rosenbaum, 910 S.W.2d at 948).

2. Application of Law to Facts

The State asserts that the trial judge committed grievous error by relying upon the evidence offered at trial to determine the sufficiency of the indictment. However, the record does not support this contention. When the trial judge announced that he was granting the motion to quash, the State asked for specific findings. The trial judge declined to provide findings or disclose his reasoning. The trial judge’s statement to the jurors as they were dismissed does not indicate clearly whether he considered the State’s evidence presented at trial in granting ap-pellee’s motion to quash:

At this time the Court has granted a motion to quash. That means that the Court has found as a matter of law that the pieces of paper that were filed in this case were not sufficient. After I heard the testimony up to this point, not — not discharging anybody, all I’m finding is that, at this time, the State has not given Defendant sufficient notice of the crime that he’s charged with. And it’s very complicated in this particular case because you’ve got two different days and you’ve got some other matters in here.
I’m not going to comment any further on that. You’re discharged for this case for the day and for the week.

Without a clear record reflecting the trial court’s basis for granting the motion, we must assume the trial court considered the indictment only as a pleading, not in light of the evidence. See Johnson v. Randall’s Food Mkts., Inc. 869 S.W.2d 390, 394 (Tex.App.-Houston [1st Dist.] 1993) (when record presented to court of appeals does not contain transcript describing basis for appellant’s complaint, reviewing court cannot speculate as to reasons why trial court made certain decision) rev’d on other grounds, 891 S.W.2d 640 (Tex.1995); c.f. Lackey v. State, 638 S.W.2d 439, 457 (Tex.Crim.App.1982) (where trial court did not assign reason for excluding expert witness, a masters level psychologist, reviewing court could not assume trial court found witness lacked expertise as psychologist).

The State maintains that the trial court lacked authority to grant appellee’s motion to quash after trial commenced. It argues that by reconsidering the motion to quash after trial began, the trial court effectively engaged in “sandbagging,” in violation of the spirit of code of criminal procedure article 1.14 and the holding in Van Dusen v. State, 744 S.W.2d 279 (Tex.App.-Dallas 1987, no pet). In Van Dusen, this Court concluded that pursuant to article 1.14, a defendant waives all rights stemming from defects in the indictment unless he objects before trial commences. Id. at 280. However, this is not the issue in the case before us. Here, appellee filed two motions to quash the indictment well before trial commenced.

As the State acknowledged at oral argument, neither Van Dusen nor article 1.14 directly supports the claim that a trial court should not grant a motion to quash after trial begins. Further, we can find no such prohibition in the case law or statutes. The law requires only that the court evaluate the validity of the indictment based solely upon the language within its four corners, as a pleading. See Rosenbaum, 910 S.W.2d at 948; Brasfield v. State, 600 S.W.2d 288, 294-95 (Tex.Crim.App.1980), overruled on other grounds by Janecka v. State, 739 S.W.2d 813 (Tex.Crim.App.1987); State v. Kinkle, 902 S.W.2d 187, 190 (Tex.App.-Houston [14th Dist.] 1995, no pet.). The record does not show that the trial court considered anything other than the indictment as a pleading. Accordingly, we resolve the State’s first issue adversely to it.

C. Whether the Trial Court Erred by Dismissing a Facially Valid Indictment

In a second issue, the State claims the court erred in dismissing a facially valid indictment. Appellee contends that the trial court properly dismissed the indictment because the term “following” as used in the statute is unconstitutionally vague and, due to that vagueness, the indictment failed to adequately notify appellee of the criminal conduct in which he was allegedly engaged. In his motion to quash, appellee argued that use of the term “following” provided sufficient notice only if it meant “an accused is in reasonable physical proximity to the other person and that both know of the following at the time of the conduct.” To propose any other meaning, appellee argues, would force persons of ordinary intelligence to guess at the scope of the statute’s meaning. It is appellee’s contention that because the term “following” cannot be given “a specific, recognizable meaning,” the statute does not give fair notice and is constitutionally void. Further, appellee argues that even if this Court finds the statute is constitutional, the indictment itself is too vague to provide proper notice, since “following” may encompass non-criminal activity.

1. Applicable Laiu

a. Constitutionality of the Statute

When reviewing the constitutionality of a statute, we presume the statute is valid and that the Legislature has not acted unreasonably or arbitrarily in enacting it. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex.Crim.App.1978); Lewis v. State, 88 S.W.3d 383, 392 (Tex.App.-Fort Worth 2002, pet. refd). The burden rests on the party challenging the statute to establish its unconstitutionality. Cotton v. State, 686 S.W.2d 140, 145 (Tex.Crim.App.1985); Lewis, 88 S.W.3d at 392. We uphold the statute if we can determine a reasonable construction that will render it constitutional and carry out the legislative intent. Ely v. State, 582 S.W.2d 416, 419 (Tex.Crim.App.1979); Lewis, 88 S.W.3d at 392.

To pass a vagueness challenge, a criminal statute must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited. Lewis, 88 S.W.3d at 392; Sisk v. State, 74 S.W.3d 893, 901 (Tex.App.-Fort Worth 2002, no pet.). Also, the law must establish determinate guidelines for law enforcement. Sisk, 74 S.W.3d at 901; Battles v. State, 45 S.W.3d 694, 703 (Tex.App.-Tyler 2001, no pet.). A statute is not rendered unconstitutionally vague merely because words or terms are not specifically defined. Sisk, 74 S.W.3d at 901(citing Engelking v. State, 750 S.W.2d 213, 215 (Tex.Crim.App.1988)).

b. Notice Required in the Indictment

A charging instrument which tracks the language of a criminal statute possesses sufficient specificity to provide a defendant with notice of a charged offense, and the State need not allege facts which are merely evidentiary in nature. State v. Edmond, 933 S.W.2d 120, 128 (Tex.Crim.App.1996); DeVaughn, 749 S.W.2d at 67; York, 31 S.W.3d at 800.

2. Application of Law to Facts

a. Constitutionality of the Statute

The First, Second, and Twelfth Courts of Appeal have addressed the constitutionality of Texas Penal Code § 42.072. See Lewis, 88 S.W.3d at 392; Sisk, 74 S.W.3d at 901; Battles, 45 S.W.3d at 702-03; Clements v. State, 19 S.W.3d 442, 450-51 (Tex.App.-Houston [1st Dist.] 2000, no pet.). We agree with these courts’ holdings in concluding that the current version of the stalking statute is not unconstitutionally vague. See Lewis, 88 S.W.3d at 392; Sisk, 74 S.W.3d at 901; Battles, 45 S.W.3d at 702-03; Clements, 19 S.W.3d at 450-51. The statute prohibits conduct that causes another person to be placed in fear of bodily injury or death, and which would cause a reasonable person to fear bodily injury for herself. See Tex. Pen.Code Ann. § 42.072(a)(2)-(3) (Vernon 2003). Also, the statute specifies that an element of the offense of stalking is “engaging in conduct ... that the actor knows or reasonably believes the other person will regard as threatening.” Id. § 42.072(a)(1). Therefore, a person who knows or reasonably believes his conduct will be regarded as threatening bodily injury or death is put on notice that his conduct is prohibited. Lewis, 88 S.W.3d at 392; Clements, 19 S.W.3d at 450. We conclude the stalking statute is not unconstitutionally vague.

b. Notice Required in the Indictment

We disagree with appellee’s position that the indictment is too vague to provide proper notice. The indictment tracks the language of the statute, and names the victim and dates of alleged acts. It alleges the conduct in which appellee engaged, i.e., “following.” Additionally, it alleges that conduct was directed specifically toward complainant. Finally, the indictment alleges that appellee knew and reasonably believed complainant would regard such conduct as threatening bodily injury to herself. The term “following,” alleged in the indictment, is not so broad as to encompass non-criminal activities.

We note that appellee’s arguments in support of his motion to quash are fact-based, relying on the contention that his surreptitious videotaping and later delivery of the tapes to complainant do not constitute “following.” Appellee’s position amounts to an evidentiary insufficiency argument. Such an attack should be made after the close of the State’s evidence on a motion for instructed verdict. In respect of a motion to quash an indictment, a trial court must test the indictment on its face, as a pleading, not by what evidence may support it. Accordingly, because the trial court dismissed the indictment, we may not test the evidence even if we decided to evaluate the record based upon appellee’s theory.

The stalking statute is not unconstitutionally vague and the indictment was facially sufficient to notify appellee of what he was accused. We resolve this issue favorably to the State.

CONCLUSION

Having resolved the first issue adversely to the State, we conclude that the trial court did not test the State’s evidence in considering appellee’s motion to quash and thus did not err in this regard. However, we resolved the second issue in the State’s favor. Because the stalking statute is not unconstitutionally vague and the indictment was factually sufficient to notify appellee of the accusations against him, we conclude the trial court abused its discretion in granting appellee’s motion to quash.

Having determined the trial court abused its discretion, we reverse the trial court’s order and remand this cause for further proceedings.

      . Effective September 1, 2001, the Legislature raised the level of this offense from a Class A misdemeanor to a third-degree felony. The State filed this indictment on September 14, 2001, for the offense of stalking. However, the alleged conduct occurred on or about July 30, 2001, before the legislative change took place. See Act of May 26, 2001, 77th Leg., R.S., ch. 1222, §§ 2, 3, 2001 Tex. Gen. Laws 2795-96 (change in law applies to offenses committed on or after effective date of change). On September 19, 2001, upon presentment of the indictment, the case was transferred to the County Criminal Court No. 7, pursuant to code of criminal procedure art. 21.26, for trial as a misdemeanor. See Tex. Code Crim. Proc. Ann. art. 21.26 (Vernon 1989).