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    STATE of Tennessee, DEPARTMENT OF CHILDREN’S SERVICES v. Juanita Kristin CULBERTSON. In the Matter of W.J.R.C. and S.D.H.
    Court of Appeals of Tennessee, Western Section, at Nashville.
    March 17, 2004 Session.
    April 21, 2004.
    Permission to Appeal Denied by Supreme Court July 19, 2004.

      Susan E. MeCown, Fayetteville, For Appellant, Juanita Kristin Culbertson.
    Paul G. Summers, Attorney General and Reporter; Juan G. Villaseñor, Assistant Attorney General, For Appellee, State of Tennessee, Department of Children’s Services.
   OPINION

W. FRANK CRAWFORD, P.J., W.S.,

delivered the opinion of the court,

in which ALAN E. HIGHERS, J. and HOLLY M. KIRBY, J., joined.

This is a termination of parental rights case. Mother appeals from the order of the Juvenile Court of Marshall County, terminating her parental rights. Specifically, Mother asserts that the grounds cited for termination are not supported by clear and convincing evidence in the record. Because we find clear and convincing evidence in the record to support the trial court’s findings, we affirm.

Juanita Kristin Culbertson (“Culbertson,” “Mother,” or “Appellant”) is the mother of the two minor children at issue in this case, W.J.R.C. (d.o.b. 3/2/00) and S.D.H. (d.o.b. 4/21/01). The father of S.D.H. is Jason Dale Hippe (“Hippe”). Culbertson and Hippe are not married, but live together. The father of W.J.R.C. surrendered his parental rights as of December 20, 2002 and is not a party to this appeal.

In July 2001, the Department of Children’s Services (“DCS,” or “Appellee”) received a referral that Culbertson and her children lived in a house that was dangerously filthy. Jana Dugger, a Child Protective Services worker with DCS, testified as follows concerning the conditions she encountered upon her investigation of the Culbertson house:

Q. What did you find when you went to the home?
A. The mother and the children were there, the children had black ears, black faces, their feet were black, there was ashtrays, cans — trash on the end table, the floors were dirty and there was some trash sticky, trashcans full.
Q. After you saw the conditions of the home, was there anything else that concerned you?
A. Also an allegation had been made about lack of supervision. And we discussed that with the mother, that the child had been missing — in previous days the child had been missing for several minutes.
Q. Were there any health concerns for these children?
A. Yes, at the time the baby [S.D.H.] was possible failure to thrive, [W.J.R.C.] had some asthma.
Q. Did the mother smoke?
A. Yes.
Q. Was there a problem with her smoking?
A. There were — during one of the home visits in one of the pictures [Exhibit 1], the coffee table was covered with ashtray — ashtrays, butts and cigarettes and [W.J.R.C.] would play in them. There were cigarette butts and ashes on the floor too.
Q. ... [W]ere there animals in the home?
A. Yes.
Q. And did those animals cause you any concern?
A. There was feces — there was a lot of feces and a lot — can’t think of the name of the cat — there was a lot of feces in there; there were some feces on the floor.

DCS made several subsequent visits to the home and Ms. Dugger testified that conditions improved somewhat. Ms. Dug-ger testified that “Healthy Family” was already working with Culbertson and that DCS placed “Homemaker Services,” “Family Support Services,” and Child Development” services in the home. Despite these efforts, conditions at the home did not improve substantially and, on October 30, 2001, DCS filed a “Petition for Temporary Custody.” A “Protective Custody Order” was entered that same day and S.D.H. and W.J.R.C. were removed from the home. A preliminary hearing was held on November 2, 2001, in which the children were found to be dependent and neglected. The children remained in protective custody following an adjudicatory hearing on November 6, 2001.

On November 27, 2001, “Permanency Plans” (the “Plans”) were drafted for these two children and were signed by both Culbertson and Hippe on that same date. The Plans listed the duel goal of “Return Home” and “Adoption.” In contemplation of the goal of reunification, the Plan set up scheduled visitation with the children and listed the following requirements and responsibilities for Culbertson:

1. ... [Culbertson] will maintain clean, sanitary and safe living conditions in her home for a period of 4 consecutive months.... [Culbertson] will further understand that animal feces cannot be left where her children may come into contact with it. She must control this situation or remove all animals from the home.
2. [Culbertson] will understand that Homemakers are teachers placed in her home to show her how to become a better homemaker. Should Homemaking or other services be reinstated into her home [Culbertson] will cooperate ■with any and all requests of the worker. [Culbertson] will also participate in anger management counseling in order to better understand appropriate ways of dealing with anger. Within a period of 4 months [Culbertson] will present evidence of her participation in such counseling to DCS Child and Family CM.
3. Although it was reported that [Culbertson] did attend parenting classes, she needs to participate in further counseling for a better understanding of what child neglect is, how it adversely affects children, and what her parental responsibilities are. [Culbertson] will understand that failure to give her children daily baths and dress them appropriately in clean clothing is an invitation to infections and disease and a serious health hazard to her children. [Culbertson] will further understand her responsibility to know the whereabouts of, and to properly supervise her children at all times. [Culbertson] will also understand that failure to comply with the requirements of this permanency plan may result in the termination of her parental rights.
4. [Culbertson] will acquire appropriate housing which is adequately furnished for herself and her children.... [Culbertson] will maintain such housing for a period of 4 consecutive months. DCS Child and Family Case Manager will determine the suitability of the housing. [Culbertson] will immediately notify the DCS Child and Family CM of any change of address and/or telephone number.
5. [Culbertson] will participate in a clinical interview administered by a licensed mental health professional to further explore issues related to these traumatic events and how or why they might affect her ability to give care and nurture to her own children. This interview will take place within a period of 2 months and [Culbertson] will follow through to completion any recommendations resulting from this interview. [Culbertson] will further sign a consent for release of information so that DCS Child and Family CM may obtain information from the mental health professional pertaining to [Culbertson’s] mental status.
6. [W.J.R.C.] will continue to receive therapy from Marshall CDC, or a similar facility located in the vicinity of the foster home, to assess whether he needs more therapy to achieve the level of development considered normal for a child his age. Any recommendations made by such facility will be followed.

On January 22, 2002, the Plans were ratified by Order of the trial court. During the time that the children were removed to State custody, Hippe and Culbertson had a falling out. According to Culbertson’s testimony, she married Brian Penn on April 12, 2002 (eight (8) days after meeting him). Mr. Penn allegedly physically abused Culbertson and they separated sometime around July 2002. At the time of the hearing in this matter, Culbertson was still married to Mr. Penn, who, at that time, was incarcerated on prescription fraud charges. While still living with Mr. Penn, Culbertson began a relationship with a known sexual offender, Jason S. McCarty. On November 11, 2002, Culbertson gave birth to a third child, J.D.H. By the time J.D.H. was born, Culbertson and Hippe had reconciled. Culbertson testified that the father of J.D.H. could be either Hippe or Jason McCarty. On December 10, 2002, J.D.H., who is not a subject of this appeal, was removed from Culbertson’s home because of unsanitary conditions in the household similar to those that led to the removal of W.J.R.C. and S.D.H.

On January 21, 2003, DCS filed its “Petition for Termination of Parental Rights” (the “Petition”), which sought to terminate the parental rights of Culbertson and Hippe to W.J.R.C. and S.D.H. The Petition reads, in relevant part, as follows:

V.
Juanita Kristin Culbertson has not contributed to the child[ren’s] support at any time since the children came into custody of the State of Tennessee. There is no evidence to show that Juanita Kristin Culbertson is not able bodied and able to work to support these children.
Juanita Kristin Culbertson was advised on November 27, 2001 that willful failure to contribute to the support of the children was grounds for termination of parental rights.
The Petitioner therefore avers that ... Juanita Kristin Culbertson ... [has] abandoned [W.J.R.C.] and [S.H.D.] in that [she] has willfully failed to contribute to the support or make reasonable payments towards the support of said children for more than four (4) consecutive months prior to the filing of this Petition.
VI.
The Defendant Mother, Juanita Kristin Culbertson, has not complied with the provisions of the permanency plan.... Specifically, she has not obtained or maintained a safe, stable and sanitary home.... She has not undergone a clinical interview conducted by a licensed mental health professional nor followed through with any recommendations made by the mental health professional. She has not demonstrated proper parenting techniques.
Juanita Kristin Culbertson was advised on November 27, 2001 during a staffing for the permanency plan that failure to comply with the permanency plan was grounds for termination of parental rights.
The children have been removed from the custody of the parents for more than six (6) months. The conditions which led to the removal of the children from the home still exist and other conditions exist which in all probability would cause the children to be subject to further abuse and/or neglect, making it unlikely that the children could be returned to either parent in the near future. The children were removed due to environmental neglect, specifically the home was filthy, with animal feces on the floors, dirty clothing and diapers strung throughout the house, cigarette butts and trash all over the floors, and the floors were black and sticky. In December 2002, the newborn sibling of these children was removed for environmental neglect with similar conditions. Specifically, the home was filthy; cat feces were on the floor, walls, bedding, etc., dirty clothes and bloody undergarments were on the floors, cigarette butts and trash were everywhere. During the time the children have been in custody, Juanita Kristin Culbertson has married and separated from her husband. She has entered into a relationship with a known sexual offender, Jason S. McCarty.... She has been unable to maintain a stable and sanitary home and has lived with known drug users. She has not been employed....
There is little likelihood that these conditions will be remedied at an early date so that the children can be returned to Juanita Kristin Culbertson ... in the near future.
The continuation of the parent or guardian and child relationship greatly diminishes the child’s chance of an early integration into a stable and permanent home.
IX
Juanita Kristin Culbertson has not made an adjustment of circumstances, conduct or conditions as to make it in the child[ren’s] best interest to return home in the foreseeable future.
Juanita Kristin Culbertson has failed to effect a lasting adjustment after reasonable efforts by available social agencies for such a duration of time that lasting adjustment does not reasonably appear possible.
Juanita Kristin Culbertson has not paid a reasonable portion of the child[ren’s] substitute physical care and maintenance or been financially able to do so.
Juanita Kristin Culbertson has not paid child support consistently with the child support guidelines promulgated by the Department pursuant to T.C.A. 36-5-101.
Juanita Kristin Culbertson has not demonstrated proper parenting ability.
A meaningful relationship has not otherwise been established between the child[ren] and Juanita Kristin Culbertson.

A hearing on the Petition was held on March 7, 2003. Following the hearing, the trial court entered its “Order for Termination of Parental Rights and Full Guardianship of Children,” (the “Order”) on March 31, 2003. The Order reads, in pertinent part, as follows:

Juanita Kristin Culbertson and Jason Dale Hippe have willfully failed to contribute to the children’s support during the four months immediately preceding the filing of this Petition. They are both able bodied and able to work.... Jason Dale Hippe paid Juanita Kristin Culbertson child support while the children were in the custody of the State of Tennessee but Juanita Kristin Culbertson failed to pay any of that support to the State for the support of her children. ... Juanita Kristin Culbertson has not been employed at any time while the children have been in foster care. Juanita Kristin Culbertson has not made any payments to the State of Tennessee for the care of her children since the children were placed in State custody on October 30, 2001.
Therefore, the Defendants, Juanita Kristin Culbertson and Jason Dale Hippe, have abandoned the minor children, [S.D.H.] and [W.J.R.C.], in that they have willfully failed to contribute to the support or make reasonable payments towards the support of said children for more than four (4) consecutive months prior to the filing of the Petition to Terminate. That Juanita Kristin Culbertson and Jason Dale Hippe have failed without good cause or excuse, to make reasonable and consistent payments for the support of the children in accordance with the child support guidelines promulgated by the department pursuant to 36-5-101.
The children were removed from the parents, Juanita Kristin Culbertson and Jason Dale Hippe, as the result of a Petition filed in Juvenile court in which the children were found to be dependent and neglected as defined by T.C.A. 37-1-102 and the children were placed in DCS custody. The Juvenile Court found that the DCS made reasonable efforts to prevent removal of the children in that Homemakers, Home Ties, Marshall County Child Development Center and Family Support Services were place in the home to work with the parents prior to the removal. For a period of four (4) months following removal, the DCS made reasonable efforts to assist the parents, Juanita Kristin Culbertson and Jason Dale Hippe, to establish a suitable home for the children, but the parents have made no reasonable efforts to provide a suitable home and have demonstrated a lack of concern for the children to such a degree that it appears unlikely that Juanita Kristin Culbertson and Jason Dale Hippe will be able to provide a suitable home for the children at an early date. Therefore, the Defendants, Juanita Kristin Culbertson and Jason Dale Hippe, have abandoned [S.D.H.] and [W.J.R.CJ.
The Defendant Mother, Juanita Kristin Culbertson, has not complied with the provisions of the permanency plan. The children were removed from the custody of the mother due to environmental neglect, lack of safe and sanitary housing; neglect of physical hygiene of the children; medical neglect, the developmental delay of one child and failure to thrive of the other child; and improper supervision. In December 2002, the newborn sibling of these children was removed for the same or similar conditions, including having cat feces throughout the house. The responsibilities in the permanency plan were reasonably related to the reasons why the children were removed from the custody of the parent. Specifically, the Defendant Mother has not obtained or maintained clean, safe and sanitary housing with appropriate furnishings for the children, she has not demonstrated an understanding that allowing her children to live in such filthy conditions poses a great risk to their health and safety; she has not demonstrated an understanding that animal feces cannot be left where her children may come into contact with it, that she must either control the situation or remove the animals from her home; she has not obtained or maintained employment or other legal means of supporting herself or her children; she did not complete parenting classes; she has not demonstrated that she has learned proper methods of parenting young children; she has not paid for the support of the children; she has failed to protect the children from potentially dangerous situations by exposing them to sexual offenders; she had not completed anger management counseling; she did not complete counseling to understand what child neglect is [and] how it adversely affects children; and what her parental responsibilities are; she has not demonstrated an understanding that failure to give her children daily baths and to dress them in appropriate and clean clothing is an invitation to infection and disease; she has not demonstrated an understanding that it is her responsibility to know the whereabouts of and to properly supervise her children at all times; she has not demonstrated that she can effectively cope with her past traumas or as a parent; and she did not maintain regular contact with the Department of Children’s Services.
The children have been removed from the custody of their parents for more than six (6) months. The conditions which, led to the removal of the children from the home of Juanita Kristin Culbertson and Jason Dale Hippe still exist and other conditions exist which in all probability would cause the children to be subject to further abuse and/or neglect, making it unlikely that the children could be returned to Juanita Kristin Culbertson and Jason Dale Hippe in the near future. Juanita Kristin Culbertson and Jasón Dale Hippe have not demonstrated the ability to properly parent young children; have not maintained stable employment; have not maintained clean, sanitary, stable housing; have not demonstrated that they have made the necessary changes that would reduce the risk of their abusing or neglecting the children in the future; they are unable to demonstrate that they have learned proper parenting techniques.... The parents did not do anything to remedy their situation and to regain custody of their children until the last couple of months and even then, they did not provide or furnish their own home. The Court cannot place children in a home and hope the parents will do right when they have not shown that they have done anything to regain custody of their children. These innocent children were not being taken care of by their parents and there is no proof that the parents can change, especially given that the newborn sibling of these children was removed for substantially similar conditions as those that existed at the time of the removal of these children.
There is little likelihood that these conditions will be remedied at an early date so that the children can be returned to either parent in the near future. There has been no proof that the parents can change any time soon.
The continuation of the parent and child relationship greatly diminishes the children’s chances of an early integration into a stable and permanent home.
Juanita Kristin Culbertson and Jason Dale Hippe have not made an adjustment of circumstances, conduct or conditions as to make it in the children’s best interest to return home in the foreseeable future.
Juanita Kristin Culbertson and Jason Dale Hippe have failed to effect a lasting adjustment after reasonable efforts made by available social agencies for such duration of time that lasting adjustment does not reasonably appear possible.
.... Juanita Kristin Culbertson and Jason Dale Hippe associate with known sexual offenders and allow these sexual offenders to be around the half-sibling of these children and [have] brought a know sexual offender to visitation of these children.
Juanita Kristin Culbertson and Jason Dale Hippe have not established a meaningful relationship with the children.
It is in the best interest of the children and the public that any and all parental rights that Juanita Kristin Culbertson and Jason Dale Hippe may hold to the children, [S.D.H.] and [W.J.R.C.], [be] forever terminated and that the complete custody, control, and guardianship of said children be awarded to the State of Tennessee, Department of Children’s Services, with the right to place said children for adoption and to consent to adoption in loco parentis.

Culbertson appeals from this Order and raises four (4) issues for review as stated in her brief:

I. Whether the trial court erred in finding that, by clear and convincing evidence, Juanita Kristin Culbertson, abandoned her child[ren] by willfully failing to pay support within four months of the filing of the Petition to Terminate Parental Rights.
II. Whether the trial court erred when it concluded, by clear and convincing evidence, that there was substantial noncompliance with the responsibilities stated in the Permanenfcy] Plan[s] on the part of Juanita Kristin Culbertson.
III. Whether the trial court erred when it concluded by clear and convincing evidence, that pursuant to Tennessee Code Annotated § 36 — 1—113(g)(3)(A), that persistence of conditions existed.
IV. Whether the trial court erred when it concluded, by clear and convincing evidence, that it was in the best interest of the children] that the parental rights of Juanita Kristin Culbertson be terminated.

Since this case was tried by the court sitting without a jury, we review the case de novo upon the record with a presumption of correctness of the findings of fact by the trial court. Unless the evidence preponderates against the findings, we must affirm, absent error of law. See Tenn. R.App. P. 13(d).

T.C.A. § 36-l-113(c)(Supp.2003) governs termination of parental rights and requires that such termination be based upon:

(1) A finding by the court by clear and convincing evidence that the grounds for termination [of] parental or guardianship rights have been established; and
(2) That termination of the parent’s or guardian’s rights is in the best interest of the child.

The trial court terminated Culbertson’s parental rights on the following grounds, which are found at T.C.A. § 36 — 1— 113(g)(Supp.2003):

(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.

T.C.A. § 36-l-102(l)(A)(Supp.2003) defines “Abandonment” as follows:

(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 par-entis) or guardian(s) either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child;
(ii) The child has been removed from the home of the parent(s) or guardian(s) as the result of a petition filed in the juvenile court in which the child was found to be a dependent and neglected child, as defined in § 37-1-102, and the child was placed in the custody of the department ... that the juvenile court found ... that the department ... 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 ... 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;

T.C.A. § 36-l-113(c) allows for termination of parental rights if any one of the grounds outlined in T.C.A. § 36-l-113(g) is found by clear and convincing evidence, and termination is in the best interest of the child. We have reviewed the entire record in this case and we find that the record is replete with evidence to support the trial court’s finding that there is clear and convincing evidence of grounds for termination of Culbertson’s parental rights and that termination of Culbertson’s parental rights is in the best interest of W.J.R.C. and S.D.H.

Abandonment Grounds

Pursuant to T.C.A. § 36-1-102(1)(A)(I) abandonment occurs when a parent has willfully failed to visit or support the child 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. As it applies to this case, abandonment is a parent’s willful failure to pay more than token support in the four months preceding the filing of the petition to terminate parental rights. Culbertson argues that she did not willfully fail to support these children because no child support was ever ordered by the court or required in the Plans. In Tennessee, however, the obligation to pay support exists even in the absence of a court order to do so. See State v. Manier, No. 01A01-9703-JV-00116, 1997 WL 675209, at ⅜5 (Tenn.Ct.App. Oct. 31, 1997) (“The statute does not require the parent to first be placed under a court order.”); see also In re Gordon (Webb v. Wilson), 980 S.W.2d 372, 373-78 (Tenn.Ct.App.1998).

Although the absence of a court order does not negate a parent’s obligation to support his or her children, in order to safeguard a parent’s fundamental right to the care and custody of his or her child, parental rights may not be terminated based on abandonment for failure to support unless clear and convincing evidence shows that the parent’s failure to make reasonable payments toward the support of his or her child was willful. See In re Swanson, 2 S.W.3d 180, 184-85 (Tenn.1999). Requiring a showing that the failure to support the child was willful allows “for the type of individualized decision-making which must take place when a fundamental right is at stake.” Id. at 188. The issue, then, is whether Culbertson’s failure to make any meaningful support payments within the four months preceding the filing of the Petition was “willful.”

Failure of a parent to pay support under the termination statutes is “willful” if the parent “is aware of his or her duty to support, has the capacity to provide the support, makes no attempt to provide support, and has no justifiable excuse for not providing the support.”. In re Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003 WL 22794524, at *5 (Tenn.Ct.App. Nov. 25, 2003) (citing cases from other jurisdictions). “The willfulness of particular conduct depends upon the actor’s intent. Intent is seldom capable of direct proof, and triers-of-fact lack the ability to peer into a person’s mind to assess intentions or motivations.... Accordingly, triers-of-fact must infer intent from the circumstantial evidence, including a person’s actions or conduct.” Id.

The uncontested testimony in the record is that Culbertson paid no monetary support for these children from the time that they were removed from her home. Although Hippe paid some child support directly to Culbertson, those funds were never given to the State for the support of these two children. Concerning her own support of the children and how the funds that Hippe paid were used, Culbertson testified as follows:

Q. Didn’t you [Culbertson] think that you needed to support your children?
A. I did support my children.
Q. Would you please tell me how you did when you paid no support at all—
A. I paid support—
Q. May I finish my question, please.
Will you please tell me how you supported these children when you did not pay any support the entire time that they were in State custody?
A. I bought them clothes that they needed; I did buy diapers for them, and they ended up being too small.
Q. Jason Hippe paid you child support even though your children were in State custody; isn’t that true?
A. Yes, Ma’am.
Q. But you did not turn that money over to the State for the support of your children?
A. I used it for the children and bought them clothes; I bought their stuff that they needed with it and brought it to them.

Janice Flowers, the DCS case worker in this matter, testified that Culbertson “very rarely” brought diapers to their visitations. Concerning any clothing that was bought for the children, Ms. Flowers testified as follows:

Q. Have the parents brought clothing for these children?
A. Without looking at the record, I could not say. I believe that Jason [Hippe’s] mother may have brought clothing at Christmas ... but I could not swear to that....

From her testimony, it is obvious that Culbertson was at least cognizant of the fact that she should provide support for these children. This is particularly true in light of the fact that Hippe tendered money to Culbertson specifically for the purpose of child support. From the record, there is simply not enough evidence to corroborate Culbertson’s testimony that she used this money to purchase items for the children. Any items that Culbertson may have brought to visitation can only be viewed as token support in the context of this case.

Not only must a person be aware that they are obligated to support their children but, in order for abandonment to be willful, that person must also have ■ the capacity to provide the support, make no attempt to provide support, and have no justifiable excuse for not providing the support. There is no evidence in this record from which we can conclude that Culbertson is not able-bodied. However, the uncontested evidence is that Culbertson has not held a job since her children were removed from the home (and even before that time). Concerning why she has not procured employment, Culbertson testified as follows:

Q. You [Culbertson] testified that you had manic depression?
A. Yes, Ma’am.
Q. Isn’t this a life-long illness managed by medication?
A. It can be, but you can also get it under control yourself.
Q. You aren’t taking any medications; isn’t that correct?
A. Yes, Ma’am.
Q. Do you have anything else wrong, any other physical problems?
A. No, Ma’am.
Q. Then why won’t you hold a job down?
A. Lack of education and no ID.
Q. So why don’t you go back to school?
A. I’ve tried.
Q. How old are you?
A. Twenty-four.

In addition to her alleged manic-depression, and her lack of education, Culbertson also testified that she did not want to work because she was a “stay-at-home mom,” to wit:

Q. And weren’t you [Culbertson] told— heard repeatedly saying that you could not work because you were a stay-at-home mom?
A. I said, yeah, I wanted to stay at home, but I have a lack of education.
Q. Well, you didn’t go back to school; did you?
A. I tried. My depression got in the way.
Q. You said you were a stay-at-home mother, but you didn’t have any children in the home; did you?
A. No.

From the record before us, it appears that Culbertson could have found some source of employment during the pendency of these termination proceedings had she truly been willing to do so. For the foregoing reasons, we find that grounds of abandonment by willful failure to support these children for four (4) months prior to the filing of the Petition to Terminate are met by clear and convincing evidence.

Failure to Substantially Comply with Permanency Plans

Culbertson’s requirements under the Permanency Plans are outlined, supra. The primary reason for removal of these children from the home was that the home and the children were filthy, that there were numerous hazards in that environment for the children, and that Culbertson had failed to protect the children from harmful circumstances. The Plans attempt to remedy these problems by requiring Culbertson, inter alia, to “maintain clean, sanitary and safe living conditions in her home for a period of 4 consecutive months,” to “understand that failure to give her children daily baths and dress them appropriately in clean clothing is an invitation to infections and disease and a serious health hazard to her children,” and to “acquire appropriate housing which is adequately furnished for herself and her children [and to] maintain such housing for a period of 4 consecutive months.”

Sanitary conditions in the home

As discussed, supra, Culbertson gave birth to a third child, J.D.H. on November 11, 2002. Just one month after his birth, J.D.H. was removed from Culbertson’s custody. Concerning the conditions, which led to this removal, Lisa Polly-Voight, the DCS manager for the J.D.H. case, testified as follows:

I went into the home and I found in the bathroom of the home there were women’s bloody undergarments on the floor and used feminine products, there was garbage littering the floor like magazines, there was cat feces and cat litter with the cat litter box on the floor.
In the living room area there were cigarette butts littering the entire floor, garbage, paper, old food wrappers on the floor, there were clothes everywhere. I was unsure if they were all clean or dirty. And over to the left side of the room there were — there was a large pile of boxes, clothing, just stuff. It’s hard to describe, just a lot of boxes piled on top, thrown over there. And on top of all that there was cat feces on that. And it was a section about four and a half foot. It was almost as tall as me, about 5 foot tall, 10 foot across. There were dirty diapers on the floor.
In the refrigerator there was mold, in the refrigerator there was a lot of — in the cabinets there was food like Doritos with a large hole that a rodent had eaten through it, it appeared to me. There was rodent droppings in the cabinets.

The fact that J.D.H. was found in conditions similar (and, indeed, the photographs depict even worse conditions) than those from which W.J.R.C. and S.D.H. were removed, is clear and convincing evidence that Culbertson failed to maintain a sanitary home pursuant to the permanency plans.

Personal hygiene for her children

In addition to being found in filthy conditions, Polly-Voight testified that J.D.H. “[h]ad a body rash on him and a really bad diaper rash .... [h]e appeared to have dirty clothes on.” The “body rash” was later diagnosed as scabies. The evidence clearly indicates that Culbertson had not changed her attitude toward the personal hygiene of her children since the removal of W.J.R.C. and S.D.H.

Home for the children

Under the Plans, Culbertson was required to provide a stable home for her children and to maintain that home for at least four (4) months. From the record, this requirement has not been met. Culbertson testified that she “cannot rent from housing authority because [she] got evicted from there [and] cannot get Section 8 for three years because [she] owe[s] housing $200-and-some.” Following the eviction, Culbertson and Hippe lived temporarily with another couple, Patricia and J.L. Land. The Lands have one child who is currently in State custody, having been found dependent and neglected. Ms. Flowers testified that the Lands are drug users.

At the time of the hearing, Culbertson was living with a Ms. Josie Rinehart. According to Culbertson, she was introduced to Ms. Rinehart through her brother, William. Apparently, Ms. Rinehart cares for several elderly and disabled people in the home and some of those people live there, to wit:

Q. Okay. Let me — I’m a little confused, so let me see if I can understand this:
In the home that you live at, Josie Rine-hart lives there?
A. Yes, Ma’am.
Q. And you live there?
A. Yes, Ma’am.
Q. And Jason Hippe lives there?
A. Yes, Ma’am.
Q. And your [Culbertson’s] mother fives there?
A. Yes, Ma’am.
Q. And this guy with Down Syndrome fives there?
A. Yes, Ma’am.
Q. And Grandmother Burk lives there?
A. Uh-huh.
Q. And Ms. Maggie lives there?
A. Ms. Maggie don’t five there.
Q. And your brother had been living there too until just recently, as you testified?
A. He’s been out of there for awhile now.
Q. How many adults five in this house?
A. Let’s see; Momma’s fixing to move out on the 17th of this month, so seven.
Q. So that’s seven adults who five in a four-bedroom house.
A. (Nods head).
Q. Is that a yes?
A. Yes, Ma’am, there is.
Q. And this is Josie Rinehart’s house?
A. Yes, Ma’am.
Q. It’s not your house?
A. Yes, Ma’am.

Concerning whether and when she and/or Hippe might be able to procure adequate housing, Culbertson testified as follows:

Q. ... Would it be possible to get a home if you and Jason [Hippe] both had a full-time job?
A. Right now, no.
Q. So even if you both had a full-time job, you could not get your own—
A. We could not afford it right now. Right now we aren’t even actually able to afford it even if I did work.
Q. And how would you be able to provide a fit and proper home for these children if you can’t get your own housing?
A. Because I’ve been trying to get my own housing.
Q. But you’ve been kicked out of public assistance housing; you’ve been barred from government housing; you have no job to get private housing. How would you be able to provide a home—
A. Because I am looking for a job now. I’ve been looking for a job.
Q. Ma’am, your children have been in custody for a year and a half and you have not gotten a job in that entire time. Why would you expect this Court to believe that you’d get one now?
A. Because I’ve got an application in at Wendy’s....
Q. So you’re here today to have your parental rights terminated; you do not have a job, you do not have your own house, you have no income whatsoever.
A. Because I was told by the lady at Wendy’s that she will call me. She has not called me yet.
Q. How can you expect this Court to believe that you would be able to provide for your children if you, in the entire time your children have been in custody, have not maintained a proper home, have not gotten a job, have not got any kind of income to support these children ...
A. Because I can do it; and I know I can do it if I just had half the chance to be shown, to show that I can do it.

Unfortunately, it appears that Culbertson has had numerous chances to procure employment and housing but has failed to take advantage of these opportunities, even in the face of losing her children. There is clear and convincing evidence to support a finding that Culbertson has not obtained adequate housing for her children since their removal to State custody.

Protection of children from harmful circumstance

In its Order, supra, the trial court found that Culbertson “has failed to protect the children from potentially dangerous situations by exposing them to sexual offenders.” Culbertson’s brother, William, has a sexual offense conviction. The record indicates that William lives (or has lived) in the Rinehart house. At least one of the photographs, admitted into evidence in this case, shows William in Culbertson’s home. In addition, Culbertson has brought her brother to her visitation with the children on at least one occasion. Concerning her decision to allow her brother access to the children, Culbertson testified as follows:

Q. But yet you exposed these children to know sexual offenders as well? You didn’t protect them from known sexual offenders; did you?
A. Yes, I did.
Q. No, you didn’t; you brought your own brother, who was a known sexual offender, to the visitation.
A. He was never left alone with the kids by himself.
Q. But you were supposed to protect them from all potentially dangerous situations. You did not do that, did you?
A. Yes, I did, because I know my brother wouldn’t do nothing like that.

Dr. Louise Strang, a psychologist and qualified expert in this case, testified, in relevant part, as follows:

Q. Were you [Dr. Strang] able to form an opinion as to whether or not the children are at risk of further abuse and neglect if they were to be returned to [Culbertson’s] custody.
A. If keeping people with criminal records, including sexual offender records, around one’s child, that would be an indication that, yes, there’s a risk of harm. There’s a general disregard for the protection of the children.

From the entire record in this case, we find that there is clear and convincing evidence that Culbertson has allowed her children to be exposed to potential danger by allowing her brother, a known sex offender, to live in the same house with her, and to visit with the children.

Persistence of Conditions

As discussed in detail, supra, this record indicates, by clear and convincing evidence, that Culbertson has been unable to maintain a stable and sanitary home since the children have been removed from the home. The fact that the third child, J.D.H., was removed because of similar circumstances in the house, the fact that J.D.H. was infected with scabies, the fact that Culbertson is living in a home, not her own, with seven (7) other adults, and the fact that she has failed to obtain employment, despite no evidence in the record to suggest that she is not able-bodied, all indicate that Culbertson has not sufficiently changed her circumstances or conduct such that it would be in the best interest of these children to be returned to her.

Concerning whether there is any hope that Culbertson might be able to parent these children given the proper support, Dr. Strang testified, in relevant part, as follows:

THE COURT: I mean, isn’t there something else that any of us can do or that the State can do [to assist Culbertson in being able to parent these children]?
THE WITNESS: I guess one question I would have is has the State noticed anything or the Court heard anything that would say there is hope that these people [Hippe and Culbertson] are willing to work really hard. Parenting is the hardest job there is. And that if you’re not rewarded by something, then you’re not motivated by something, then there’s nothing anybody can do to make you motivated. So I don’t know of anything. I think this case is hopeless.
THE COURT: You think their situation is to be — with both parents is hopeless?
THE WITNESS: Yes. And I hate to say that too with regard to the children belonging with their natural parents.
THE COURT: And what makes it hopeless?
THE WITNESS: Their [Culbertson and Hippe’s] character, their lack of ability, motivation, self-control, inner authority, outer authority, they don’t respect authority, they don’t have their own authority to guide them to make them do what they’re supposed to do. Common sense; there’s not a common sense even approach.

The record bears out Dr. Strang’s observations and opinions concerning Culbertson’s ability and/or motivation to change her life so that she can properly parent these children. At no point in this record, does Culbertson take any blame upon herself for the conditions in which she allowed her children to live, nor does she express any remorse. Despite reasonable efforts by DCS and other social services, Culbertson has not put forth the effort necessary to substantially change her living conditions. Furthermore, these children have been in State custody since October 30, 2001. Under T.C.A. § 36-1-113(g) and for the foregoing reasons, we find that the continuation of the parent and child relationship greatly diminishes the children’s chances of early integration into a safe, stable and permanent home.

Best Interest

The evidence in record indicates that these children have been placed in a stable foster home, where there is a potential that they will be adopted. While in foster care, the children have overcome some of the developmental obstacles that they were experiencing at the time of their removal from Culbertson’s home. They are well tended, clean, and safe. Because Culbertson’s living conditions have not changed drastically since the children’s removal, the record indicates, by clear and convincing evidence, that it is in the best interest of these children that Culbertson’s parental rights be terminated.

For the foregoing reasons, we affirm the Order of the trial court, terminating the parental rights of Juanita Kristin Culbertson and Jason Dale Hippe to W.J.R.C. and S.D.H. Costs of this appeal are assessed against the Appellant, Juanita Kristin Culbertson, and her surety.

      . Hippe does not appeal from the Order terminating his parental rights. He is not a party to this appeal.

      . Culbertson was in foster care as a child in the state of Michigan. Her mother’s parental rights were terminated in 1989.. Culbertson was later adopted and has reported that she was molested by her adoptive father shortly before her 14th birthday. She was subsequently removed from her adoptive home and stayed in various foster homes until being released from state custody shortly before her 19th birthday,

      . The CPS petition for custody stated that both W.J.R.C. and S.D.H. are developmentally delayed. S.D.H. was examined at Marshall County CDC and found to be on track developmentally. However, Marshall CDC was working with W.J.R.C. at the time of removal. At the time the Plans were drafted, the foster parents reported that W.J.R.C. had learned to chew solid food and was rapidly learning to speak (at the time of removal, he would only point and grunt). The foster parents also reported a dramatic decrease in W.J.R.C.'s head banging episodes.

      . T.C.A. § 34 — l-102(a) states that "[p]arents are the joint natural guardians of their minor children, and are equally and jointly charged with their care, nurture, welfare, education, and support ...” (emphasis added).

      . There is nothing in the record, other than Culbertson’s own testimony, concerning whether she has actually been diagnosed with manic-depression. Culbertson did testify that she was diagnosed with manic-depression by a Dr. Hill who had prescribed medication for her symptoms. Concerning whether she was taking her medication, Culbertson stated "I feel I don’t need the medicine that he had me on. It made me angry. And I think it made me angry; it coincided with my anger.”

      . Culbertson completed the eleventh grade and has no GED.


source: Caselaw Access Project

author: D. MICHAEL SWINEY, J.,

license: Public Domain

text:
    Marjorie DELAPP, et al. v. Arthur David PRATT, Individually and as Executor of the Estate of Mary A. Pratt. In re Estate of Mary Armstrong Pratt.
    Court of Appeals of Tennessee, at Knoxville.
    March 22, 2004 Session.
    June 22, 2004.
    Permission to Appeal Denied by Supreme Court Nov. 29, 2004.

      Christopher J. Oldham and Gerald L. Gulley, Jr., Knoxville, Tennessee, for the Appellant, Arthur David. Pratt.
    Johnny V. Dunaway, La Follette, Tennessee, for the Appellees, Marjorie De-Lapp, Mary Sherrod, and Elsie Catón.
   OPINION

D. MICHAEL SWINEY, J.,

delivered the opinion of the court,

in which HERSCHEL P. FRANKS, P.J., E.S. and CHARLES D. SUSANO, JR., J., joined.

Marjorie DeLapp, Mary Sherrod, and Elsie Catón (“Plaintiffs”) sued their brother, Arthur David Pratt (“Defendant”) claiming, in part, that Defendant exercised undue influence over their mother, Mary Armstrong Pratt (“the Deceased”) to induce the Deceased to make a will in Defendant’s favor. After a jury trial, judgment was entered holding the Deceased • was competent to make the will, that a confidential relationship existed between Defendant and the Deceased, and that the will was not the last will and testament of the Deceased. Defendant appeals claiming, in part, that the Trial Court erred in allowing testimony regarding his alleged racial prejudice to be introduced and in failing to grant a mistrial after reference was made to his alleged sexual misconduct. Defendant also argues there is no material evidence to support the jury’s verdicts of confidential relationship and undue influence and that the Trial Court erred in denying his objection to the entry of judgment. We affirm.

Background

Plaintiffs sued Defendant regarding the will executed by the Deceased on October 5, 1993 (“1993 will”). Plaintiffs claimed that the Deceased was not competent to make the 1993 will and, that Defendant exercised undue influence upon the Deceased to induce the Deceased to leave him, among other things, a family farm totaling approximately twenty-six acres.

The Deceased received the farm as a bequest under her father’s will. The Deceased and her husband lived on this farm for many years and raised their nine children there. The Deceased never transferred any ownership in the farm to her husband. Years before her death, however, the Deceased deeded a portion of the farm to Defendant so that he could build a house there and deeded another portion to another son, Dale Pratt. Defendant built a house next door to the Deceased’s house in the early 1980’s and has lived there with his wife ever since while farming both his and the Deceased’s land.

Plaintiffs later filed a second complaint seeking, among other things, to impose a constructive trust upon $40,000 that Defendant transferred from the Deceased’s checking account into Defendant’s own account prior to the Deceased’s death.

The issues in this case were hotly contested. Eight of the Deceased’s nine children survived her. Several of the Deceased’s grown children testified at trial in support of Plaintiffs’ case. However, several of their siblings testified favorably for Defendant.

The Deceased made a will in 1984 (“1984 will”) drafted by Attorney Rainwater that divided the farm equally among her children. In 1993, the Deceased made another will drafted by Attorney Holbrook that left the farm in its entirety to Defendant. The Deceased also made a handwritten codicil that disposed of items of personal property leaving specific pieces to each of her children. The codicil, which was started in 1985, was written in a notebook that the Deceased kept around the house and which was added to by the Deceased over the years.

The Deceased died in December of 1998 at the age of 85. After the Deceased died, Defendant made lists of the items named in the codicil and sent each brother and sister a list only of the items given to them. Plaintiff Mary Sherrod testified she did not get an opportunity to read the actual codicil until trial and at that time she stated there were more items listed in the codicil to go to her than were in the list Defendant sent her.

After the Deceased died, Defendant, who was named executor of the estate in the 1993 will, attempted to have the 1993 will admitted to probate. Defendant also had been named as a potential executor in the 1984 will along with another of the Deceased’s sons, Gilbert Pratt, who predeceased his mother. At trial, it was stipulated that the 1993 will drafted by Attorney Holbrook was properly executed. The 1993 will was entered into probate.

Attorney Holbrook testified at trial regarding the drafting of the 1993 will. He stated that he initially met with the Deceased and her daughter, Carolyn Copeland. Attorney Holbrook testified that according to his notes, the Deceased “indicated that her son, [Defendant], lived beside her and took care of her. And for that reason, she wanted him to have the entire estate.” Attorney Holbrook clarified that the Deceased was leaving some of her tangible personal property to each of her other children. Attorney Holbrook also prepared a power of attorney signed the same day as the will that gave Defendant power of attorney.

The Deceased’s daughter, Carolyn Copeland, also testified about the making of the 1993 will. She accompanied her mother to the first meeting with Mr. Holbrook and testified the Deceased brought a notebook with her to that meeting. Ms. Copeland testified that the Deceased told Mr. Hol-brook what she wanted done and said she wanted to leave the farm to her oldest son, Defendant. Ms. Copeland testified the Deceased loved the farm and told her:

[s]he wanted to keep the farm as a whole because she said it wasn’t enough to give to all of us. And she wanted— she said that [Defendant] and I were the only ones that would farm it because we were the only ones interested in farming .... And she said that it was Biblical to give the older son land or property, estate....

Ms. Copeland has no doubt that it was the Deceased’s intent for Defendant to get the farm.

Defendant testified he had no knowledge of the 1984 will until this lawsuit. He testified that the Deceased told him in 1993, that she wanted to talk to him and sat down with him and told him she was going to give him the farm.

Other siblings also testified to their belief that the 1993 will reflected the Deceased’s wishes. Alice Sims, another of the Deceased’s daughters, stated she has “no doubt whatsoever this [distribution under the 1993 will] is what [the Deceased] wanted_” Dale Pratt, one of the Deceased’s sons, stated his mother loved the farm and told him she wanted it to remain a farm. Dale Pratt testified he believes the 1993 will was what the Deceased wanted.

Defendant accompanied the Deceased and Ms. Copeland to Attorney Holbrook’s office the day the will was signed. He testified he did so at his mother’s request. Defendant drove the Deceased to Attorney Holbrook’s office and they met Ms. Copeland there. All three were given a copy of the will to review. Defendant testified that after they reviewed the will, he and Ms. Copeland were asked to go back to the lobby while the will was signed. Defendant maintains he had nothing to do with drafting the will, but rather simply acceded to his mother’s request to be there when it was signed. He stated his mother was not easily influenced to do anything. Defendant testified he never used the power of attorney. Defendant also testified he has had possession of the original 1993 will since 1996.

Plaintiffs tell quite a different story. Plaintiff Marjorie DeLapp says Defendant talked to her about, his concern that he was not going to get all of the farm. So, in the late 1980’s or early 1990’s Ms. DeLapp asked the Deceased if she planned to leave the farm to Defendant. Ms. DeLapp stated that the Deceased told her that the farm was going to be divided among all her children. Plaintiff Mary Sherrod testified the Deceased told Ms. Sherrod she’d made a will that divided everything equally-

Ms. DeLapp testified she had no knowledge of the 1993 will until after the Deceased’s death. Ms. DeLapp knew that the Deceased had a will prepared by Attorney Rainwater that divided everything equally among her children and stated that the existence of this will was common knowledge among the family. Some other siblings also testified they were unaware of the existence of the Deceased’s wills prior to the Deceased’s death. Alice Sims testified she did not know about the 1984 or the 1993 wills, but did know about the handwritten codicil, which she thought actually was the will. Dale Pratt testified he did not know anything about the 1984 will prior to this lawsuit.

Several witnesses testified regarding the Deceased’s mental status. Ms. DeLapp explained that she left home in the 1970’s to get married and returned with her husband to live on the farm with the Deceased in the late 1980’s. Ms. DeLapp and her husband, Steve DeLapp, have since divorced. Ms. DeLapp and her husband lived on the farm with the Deceased for approximately a year and a half. Ms. DeLapp testified regarding the Deceased’s mental status during the time she and her husband lived with the Deceased and stated that the Deceased loved to watch the television show Matlock but would be confused about the storyline and one time thought she actually was on the show. She also testified the Deceased watched the Clarence Thomas confirmation hearing on television and when reference was made to a Coke can, the Deceased thought it was an advertisement for Coke. Further, Ms. DeLapp testified about one incident when the Deceased told Ms. DeLapp she had chicken and dumplings on the stove but it was really a pan with socks boiling in it.

Steve DeLapp also testified regarding the Deceased’s mental status during the time he lived with her. Mr. DeLapp stated there were “times when she couldn’t hear, would go off kind of in another world, sort of. Little things like not certain of reality. She’d see something on T.V. and think it was a news program and, I think, it was — and I think it was a soap opera. We would correct her. And the next day, the same thing would happen. ...” During the time frame between 1990 and 1993, Mr. DeLapp noticed the Deceased “losing track of where she was and what she was doing.”

Ms. Sherrod testified that between 1990 and 1993, she observed that the Deceased “was unable to carry on a conversation at times. She could look at you and not know who we were. She couldn’t answer questions.”

Paul Catón, the Deceased’s son-in-law and husband of Plaintiff Elsie Catón, prepared tax returns for the Deceased for approximately fifteen or sixteen years. Mr. Catón testified the Deceased’s record keeping was “immaculate.” However, Mr. Catón noticed a change in the early nineties. He testified that the Deceased didn’t have all of the information ready for him as she had each previous year. He stated the Deceased wasn’t happy with the return he prepared that year so he didn’t file it for her and she never asked him to do her taxes again. In 1992 or 1993, Defendant stai’ted taking the Deceased to have her taxes prepared by H & R Block, which is where he had his prepared.

To the contrary, several witnesses testified they noticed no problems with the Deceased’s mental status around the time the 1993 will was executed. Defendant testified he never noticed any problems with the Deceased mentally and claims none of his siblings talked to him about any such problems. Defendant testified he did notice the Deceased’s mental state getting worse in 1997, after she moved in with him and his wife. Dr. Richard Erickson, a retired family physician, who treated the Deceased from approximately 1977 until 1995, testified the Deceased was “unusually sharp for her age.” Dale Pratt also testified the Deceased was “sharp as a tack” until about a year before she died. Carolyn Copeland, who during the time period from approximately 1988 until 1998, talked to the Deceased on the phone at least every other day and visited about every two weeks or so testified she did not notice any mental problem with the Deceased until 1997.

Ms. DeLapp testified that after she and her husband moved out of the Deceased’s home, she continued to visit the Deceased almost every weekend until 1993. Ms. De-Lapp testified that in approximately 1993, her visits to the Deceased decreased because Defendant would make racist jokes in front of Ms. DeLapp’s adopted minority children. Ms. DeLapp also testified that Defendant would brag about how when he lived in Florida he would pick up “little black boys on the road” who were hitchhiking and scare them by “flying down the highway ... past the stop where they were supposed to let them out.” Steve DeLapp also testified to Defendant’s racial prejudice.

Plaintiff Mary Sherrod testified she heard Defendant use racial slurs in regard to Ms. DeLapp’s children on numerous occasions. Ms. Sherrod also testified that she and her husband accompanied Defendant on a fishing trip in July of 1977, to St. George Island when Defendant picked up a young black boy who was hitchhiking. Ms. Sherrod stated Defendant had the boy climb in the back of the pickup with his bike and Defendant then sped past the stop where the boy wanted to be let out. When asked what she did on that occasion, Ms. Sherrod stated “I was terrified. I was scared of [Defendant]. Nobody ever crossed him.”

Defendant denied ever saying anything negative about Ms. DeLapp’s children. He also denied the stories about picking up hitchhiking boys in Florida. Defendant stated he doesn’t know why Ms. DeLapp stopped visiting the farm.

In 1992, the Deceased added Defendant’s name to her checking account giving Defendant joint rights of survivorship. Defendant claims he never wrote a check without discussing it with the Deceased first. In November of 1997, prior to the Deceased’s death, Defendant transferred $40,000 out of the joint account because he says the Deceased wanted him to do so. Defendant testified the Deceased had told him around September of that same year to do this. Defendant testified:

She said that at her death she didn’t want any money distributed. And she said there are three girls that are going to fight you on my will. She said, they won’t fight you on the farm, but they’re going to fight you on the money. And she said, so I want it put over in your name.

Defendant testified he used some of the $40,000 to pay taxes and insurance on the Deceased’s property. During his deposition taken in August of 1999, Defendant claimed that he had not touched the $40,000, but he admitted at trial that he had since spent some of it. Defendant testified he spent about $800 per year out of the $40,000 on land taxes since the Deceased’s death in 1998, or around $8,200. However, Defendant denied he had used any of the $40,000 to pay taxes on his own nine acres. Defendant also testified he spent about $400 per year for four years insuring the Deceased’s house and its contents and also spent some money for attorney fees. Defendant testified there is about $24,000 left out of the $40,000.

Defendant testified that there was $12,000 left in the joint account after the transfer of the $40,000. He stated, “[s]he told me to leave ten thousand in the checking account to bury her.” Of that $12,000, Defendant used approximately $6,000 to pay for the Deceased’s funeral expenses and then transferred the rest into his checking account. He claims that if called upon as executor of the estate to give an accounting of every dollar he is prepared to do this.

Ms. DeLapp testified that while she and her husband lived with the Deceased, Defendant would “come down and get the checkbook from [the Deceased] to write checks for things.” Steve DeLapp testified that during the time they lived there, Defendant quite often would bring the Deceased her checkbook and tell her that he had written a check. Defendant, however, claims he never wrote checks on the Deceased’s account while Ms. DeLapp and her husband lived with the Deceased. He testified he wasn’t even on the account yet.

In 1992 or 1993, Defendant sold the Deceased’s tractor, for $5,000 and did not put the money in the Deceased’s account. In addition, Defendant traded a Toyota he owned for a Mercury owned by the Deceased. Defendant later took the Deceased’s Toyota and sold it and bought himself a pickup truck using the money from the car.

Plaintiff Mary Sherrod testified that during the time period from about 1980 until 1991, she visited the Deceased at least weekly. For years Ms. Sherrod visited the Deceased on Sunday afternoons, but suddenly in 1993 the situation changed. Ms. Sherrod testified she would arrive for her usual visit and find the Deceased not at home. Ms. Sherrod stated she would leave a note. Later, she would find out that Defendant had taken the Deceased for a drive and the notes never would be acknowledged. Ms. Sher-rod also testified that during the time frame between 1990 and 1993, when her family would visit with the Deceased, Defendant suddenly would appear and sit there with them during their visit.

Ms. Sherrod testified that sometime between 1976 and 1978, the Deceased asked her to co-sign on a safe deposit box. The Deceased gave Ms. Sherrod a key to that box. Ms. Sherrod entered the box once to store some valuables during a vacation and once to retrieve her valuables, but she never looked at what the Deceased had stored in the box. Ms. Sherrod stated the Deceased was a very private person. Ms. Sherrod testified her name was on the box for probably fifteen years or more until the early 1990’s when the Deceased asked for the key back.

Ms. Sherrod testified regarding other changes she noticed in the Deceased’s life in the early 1990’s. Ms. Sherrod stated that for years, the Deceased had flowers along her driveway and that she was very proud of them. Ms. Sherrod testified that in approximately 1990, the Deceased told Ms. Sherrod that Defendant said she wasn’t able to care for her flowers anymore and so he plowed them under. Ms. Sherrod also testified that Defendant started getting the Deceased’s mail because the Deceased was unable to walk down to the mailbox anymore.

Alice Sims, another one of the Deceased’s daughters testified she visited the Deceased about once a week from 1991, until the Deceased’s death and, unlike Ms. Sherrod, never had any problem visiting with her. Ms. Sims also testified that the Deceased assisted her in the early 1990’s by accompanying Ms. Sims to treatments when Ms. Sims underwent chemotherapy for cancer in late 1991 and early 1992.

At some point in 1997, the Deceased moved in with Defendant and Defendant’s wife, Cricket. Defendant testified he paid Cricket using money from the Deceased’s account to take care of the Deceased after the Deceased moved in with them. He stated:

I didn’t pay [Cricket] anything from when [the Deceased] moved in in February of ’97 until September of ’97. And [the Deceased] asked me — she told me when she come up there she wanted me to pay Cricket. And she asked me, she said, are you taking care of paying Cricket? And I said, Mama, I’m taking care of it. And so I started paying Cricket four hundred a month. And I did that, I don’t really know, but for a while. And maybe some time in ’98, I think, for three or four months, I paid her six hundred a month. Mother was getting a lot worse. And then in September of ’98, for four months, I paid her a thousand dollars a month.

Defendant testified that Cricket was not working outside the home during this time.

The case was tried before a jury in July of 2002, and the jury was asked to answer three questions. The first question asked whether the Deceased was incompetent when the 1993 will was executed. The jury answered the first question with a no. The second question asked whether a confidential relationship existed between Defendant and the Deceased on or before the date the 1993 will was executed and the jury answered yes. The third question asked whether the Deceased was unduly influenced to execute the 1993 will. The jury answered yes to the third question. The Defendant moved to strike the third question and answer on the ground that the question did not address whether Defendant was the party who unduly influenced the Deceased and, therefore, the verdict was “ambiguous and uncertain and not sufficient to be the basis of a final judgment in this matter.” The Trial Court granted Defendant’s motion and struck the answer to question three. Judgment then was entered on March 18, 2003, holding that the Deceased was competent to execute the 1993 will, that a confidential relationship existed between Defendant and the Deceased on or before the date of the execution of the 1993 will, and that based upon the jury’s answers to questions one and two, the 1993 will was declared not to be the last will and testament of the Deceased. Defendant filed a motion for new trial, which the Trial Court denied. Defendant appeals to this Court.

Discussion

Although not stated exactly as such, Defendant essentially raises four issues on appeal: 1) whether the Trial Court erred by allowing the introduction of testimony regarding Defendant’s alleged racial prejudice; 2) whether the Trial Court erred by failing to declare a mistrial after Plaintiffs’ counsel made reference to Defendant’s alleged sexual misconduct; 3) whether there was material evidence to support the jury’s special verdicts of confidential relationship and undue influence; and 4) whether the Trial Court erred in denying the objection to the entry of judgment. Plaintiffs raise as an additional issue whether it was error for the Trial Court to strike special interrogatory number three and the jury’s answer to that question.

We begin by considering whether the Trial Court erred by allowing the introduction of testimony regarding Defendant’s alleged racial prejudice. Issues regarding admission of evidence in Tennessee are reviewed for abuse of discretion. Dickey v. McCord, 63 S.W.3d 714, 723 (Tenn.Ct.App.2001). “[T]rial courts are accorded a wide degree of latitude in their determination of whether to admit or exclude evidence, even if such evidence would be relevant.” Id. Our Supreme Court discussed the abuse of discretion standard in Eldridge v. Eldridge, stating:

Under the abuse of discretion standard, a trial court’s ruling “will be upheld so long as reasonable minds can disagree as to [the] propriety of the decision made.” A trial court abuses its discretion only when it “applie[s] an incorrect legal standard, or reache[s] a decision which is against logic or reasoning that cause[s] an injustice to the party complaining.” The abuse of discretion standard does not permit the appellate court to substitute its judgment for that of the trial court.

Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn.2001) (citations omitted).

Appellate courts ordinarily permit discretionary decisions to stand when reasonable judicial minds can differ concerning their soundness. Overstreet v. Shoney’s, Inc., 4 S.W.3d 694, 709 (Tenn.Ct.App.1999). A trial court’s discretionary decision must take into account applicable law and be consistent with the facts before the court. Id. When reviewing a discretionary decision by the trial court, the “appellate courts should begin with the presumption that the decision is correct and should review the evidence in the light most favorable to the decision.” Id.

Evidence regarding Defendant’s alleged racial prejudice first arose during the trial when Plaintiff Marjorie DeLapp testified that Defendant would make racist jokes around her adopted minority children. Ms. DeLapp also testified that Defendant would brag about how when he lived in Florida he would pick up “little black boys on the road” who were hitchhiking and scare them by “flying down the highway ... past the stop where they were supposed to let them out.” No objection to this line of questioning was made when this testimony was given.

Later in the trial, Ms. DeLapp’s ex-husband, Steve DeLapp, testified regarding the racial prejudice of Defendant and a brother. An objection based upon relevance was raised at that time. The Trial Court overruled the objection holding the testimony was relevant to proving undue influence by showing that Defendant discouraged or prevented Plaintiff Marjorie DeLapp from having contact with her mother.

As far as the story about Defendant’s scaring “little black boys on the road” in Florida, no objection was raised to this line of questioning until quite late in the trial when Plaintiff Mary Sherrod was questioned regarding this subject. At that point, the Trial Court overruled the objection noting that it was too late to object to this line of questioning based upon relevance as the subject already had been introduced through other testimony.

We believe reasonable minds could disagree as to the propriety of the decision made by the Trial Court to admit the testimony regarding Defendant’s alleged racial prejudice, the very essence of a discretionary decision. We believe this to be especially so given that the testimony regarding racist jokes made around Ms. De-Lapp’s adopted minority children arguably was relevant to the issue of undue influence and that no objection was raised to this testimony or the testimony regarding “little black boys on the road” in Florida when it first was introduced. The Trial Court believed this evidence was relevant to proving undue influence by showing that Defendant discouraged or prevented Ms. DeLapp from having contact with the Deceased. We also note that it goes to the Defendant’s credibility as he denied ever saying anything negative about Ms. De-Lapp’s children. Given this, we will not substitute our judgment for that of the Trial Court, and we find no abuse of discretion regarding the admission of the testimony regarding Defendant’s alleged racial prejudice.

We next consider whether the Trial Court erred by failing to declare a mistrial after Plaintiffs’ counsel made reference to alleged sexual misconduct by Defendant. During the cross-examination of Defendant, Plaintiffs’ counsel asked “[wjell, Margie wouldn’t want to be around you with her small daughter since you sexually molested her, would she?” An objection was immediately raised and a mistrial requested. The Trial Court sustained the objection and reminded the jury of instructions given at the beginning of the trial stating:

Ladies and gentlemen of the jury, you remember I talked a lot — said a lot of things when we first started the trial, but one of the things that I said was a question is not proof. Anybody can ask a question about anything. It’s not proof. It’s not evidence of anything.
The last question that was asked, I want you to disregard it.

The Trial Court then polled each juror individually asking if each could disregard or ignore the question. Each juror replied he or she could.

“The decision of whether to grant a mistrial is within the sound discretion of the trial court. This Court will not disturb that decision absent a finding of an abuse of discretion.” State v. Dellinger, 79 S.W.3d 458, 494 (Tenn.2002) (citations omitted). We believe reasonable minds could disagree as to the propriety of the decision made by the Trial Court not to grant a mistrial, again the very essence of a discretionary decision, especially since the Trial Court gave a curative instruction and polled the jury. We, therefore, will not substitute our judgment for that of the Trial Court, and we find no abuse of discretion regarding the Trial Court’s decision not to grant a mistrial after Plaintiffs’ counsel made reference to alleged sexual misconduct on the part of Defendant.

We next will consider whether there was material evidence to support the jury’s special verdicts of confidential relationship and undue influence. “Findings of fact by a jury in civil actions shall be set aside only if there is no material evidence to support the verdict.” Tenn. R.App. P. 13(d). As our Supreme Court has explained:

It is the time honored rule in this State that in reviewing a judgment based upon a jury verdict the appellate courts are not at liberty to weigh the evidence or to decide where the preponderance lies, but are limited to determining whether there is material evidence to support the verdict; and in determining whether there is material evidence to support the verdict, the appellate court is required to take the strongest legitimate view of all the evidence in favor of the verdict, to assume the truth of all that tends to support it, allowing all reasonable inferences to sustain the verdict, and to discard all to the contrary. Having thus examined the record, if there be any material evidence to support the verdict, it must be affirmed; if it were otherwise, the parties would be deprived of their constitutional right to trial by jury.

Crabtree Masonry Co., Inc. v. C & R Constr., Inc., 575 S.W.2d 4, 5 (Tenn.1978).

This Court defined a confidential relationship in Bills v. Lindsay stating:

A confidential relationship is “that relationship where confidence is placed by one in the other and the recipient of that confidence is the dominant personality, with the ability, because of that confidence, to influence and exercise dominion over the weaker or dominated party.”
A normal relationship between a mentally competent parent and an adult child -is not per se a confidential relationship and it raises no presumption of invalidity of the transaction.

Bills v. Lindsay, 909 S.W.2d 434, 440 (Tenn.Ct.App.1993) (quoting Iacometti v. Frassinelli, 494 S.W.2d 496, 499 (Tenn.Ct.App.1973)).

It is well settled in Tennessee “that the existence of a confidential relationship, followed by a transaction wherein the dominant party receives a benefit from the other party, a presumption of undue influence arises, that may be rebutted only by clear and convincing evidence of the fairness of the transaction.” Matlock v. Simpson, 902 S.W.2d 384, 386 (Tenn.1995). However, as this Court discussed in In re: Estate of Maddox:

Proof of the existence of a confidential relationship, by itself, will not be sufficient to invalidate a will. It is not the relationship that concerns the courts but rather the abuse of the relationship. Proof of the existence of a confidential relationship must be coupled with evidence of one or more other suspicious circumstances that give rise to a presumption of undue influence.

In re: Estate of Maddox, 60 S.W.3d 84, 89 (Tenn.Ct.App.2001) (citations omitted).

It is rare to find direct evidence of undue influence. Id. at 88. Usually, to prove undue influence, one “must prove the existence of suspicious circumstances warranting the conclusion that the person allegedly influenced did not act freely and independently.” Id. “The suspicious circumstances most frequently relied upon to establish undue influence are: (1) the existence of a confidential relationship between the testator and the beneficiary, (2) the testator’s physical or mental deterioration, and (3) the beneficiary’s active involvement in procuring the will.” Id. at 89. Some other recognized suspicious circumstances are:

(I) secrecy concerning the will’s existence; (2) the testator’s advanced age; (3) the lack of independent advice in preparing the will; (4) the testator’s illiteracy or blindness; (5) the unjust or unnatural nature of the will’s terms; (6) the testator being in an emotionally distraught state; (7) discrepancies between the will and the testator’s expressed intentions; and (8) fraud or duress directed toward the testator.

Mitchell v. Smith, 779 S.W.2d 384, 388 (Tenn.Ct.App.1989). “The courts have refrained from prescribing the type or number of suspicious circumstances that will warrant invalidating a will on the grounds of undue influence.” Id.

In this case, the jury found that a confidential relationship existed between Defendant and the Deceased on or before the date the 1993 will was executed. The jury heard testimony on this issue including, among other things, the fact that Defendant lived next door to the Deceased and farmed the Deceased’s land. They also heard that the Deceased signed a document that gave Defendant power of attorney. Further, the evidence showed that in 1992, prior to the execution of the 1993 will, the Deceased added Defendant’s name to her checking account giving Defendant joint rights of survivorship. Evidence showed that Defendant did write checks on the Deceased’s checking account. The evidence also showed that in 1992 or 1993, Defendant sold the Deceased’s tractor, got $5,000 for it and did not put the money in the Deceased’s account. Taking the strongest legitimate view of all the evidence in favor of the verdict, assuming the truth of all that tends to support it, allowing all reasonable inferences to sustain the verdict, and discarding all evidence to the contrary, as we must, we find there was material evidence to support the jury’s verdict. We, therefore, must and do affirm the jury verdict that a confidential relationship existed between Defendant and the Deceased on or before the date the 1993 will was executed.

Defendant also argues there was no material evidence to support the jury’s verdict of undue influence. However, the jury heard testimony that Defendant accompanied the Deceased and Ms. Copeland to Attorney Holbrook’s office the day the will was signed and that Defendant drove the Deceased to that meeting. They also heard testimony that Defendant was given a copy of the will to review prior to execution. The evidence further showed that the Deceased told several of her children she was planning for the farm to be divided among all her children. The jury heard testimony that several of the Deceased’s children were unaware of the existence of the 1993 will prior to the Deceased’s death. The jury also heard that in the early 1990’s, Defendant started taking the Deceased to have her taxes prepared by H & R Block, which is where he had his prepared. The evidence also showed that Defendant started getting the Deceased’s mail because the Deceased was unable to walk down to the mailbox anymore. Finally, several witnesses testified they noticed a decline in the Deceased’s mental status in the early 1990’s. The jury was entitled to find the evidence presented in favor of Plaintiffs more credible than the evidence presented by Defendant, and clearly they did so. Taking the strongest legitimate view of all the evidence in favor of the verdict, assuming the truth of all that tends to support it, allowing all reasonable inferences to sustain the verdict, and discarding all evidence to the contrary, as we must, we find there was material evidence to support the jury’s verdict. We, therefore, must and do affirm the jury verdict of undue influence.

Finally, we consider whether the Trial Court erred in denying the objection to the entry of judgment. Along with this issue must be considered the Plaintiffs’ issue as to whether the Trial Court erred in striking the jury’s answer to the third interrogatory. The Trial Court granted Defendant’s motion to strike the jury’s answer to the third question on the ground that the question did not address whether Defendant was the party who unduly influenced the Deceased. Judgment then was entered based upon the jury’s answers to questions one and two and the evidence presented to the jury and the Trial Court. The jury was not asked to give a general verdict, and did not do so. Defendant argues that the legal conclusion made by the Trial Court in declaring that the 1993 will was not the Deceased’s last will and testament was based solely upon a finding of confidential relationship without a finding of undue influence and “cannot stand, as a matter of law.” We disagree. We believe it is clear from the Trial Court’s judgment that it took the jury’s verdict on the first two interrogatories and then considered all the evidence presented at trial in arriving at its judgment. There was a confidential relationship as found by the jury and that determination is supported by material evidence. There was additional evidence of one or more suspicious circumstances that gave rise to a presumption of undue influence by the Defendant. It is clear from the Trial Court’s judgment that it found that the Defendant failed to meet his burden of rebutting this presumption of undue influence by clear and convincing evidence. We find no error by the Trial Court on this issue.

Additionally, the Trial Court erred in striking the jury’s answer to question three. Undue influence does not-need to be exercised directly by the donee. Estate of Alline Elizabeth Glasgow v. Whittum, 106 S.W.3d 25, 31 (Tenn.Ct.App.2002). As this Court discussed in Estate of Glasgow:

It is immaterial whether undue influence is exercised directly or indirectly. In determining whether undue influence is present, a central focus is on the means used and the effect upon the donor. The underlying theory of the doctrine is that the donor is induced by various means to execute an instrument that, in reality, is the will of another substituted for that of the donor. We specifically reject the contention that a beneficiary must be the one who exerts the undue influence.

Id. (quoting Montoya v. Torres, 113 N.M. 105, 823. P.2d 905, 909-10 (1991) (citations omitted)).

Thus, the Trial Court erred when it struck the jury’s answer to question three. The jury’s answer to question three should have been considered. “[I]f the Trial Judge reached the right result for the wrong reason, there is no reversible error.” Shutt v. Blount, 194 Tenn. 1, 249 S.W.2d 904, 907 (1952). Given the Trial Court’s own implicit finding concerning undue influence by Defendant and the jury’s findings of confidential relationship and undue influence, both supported by material evidence, we hold the Trial Court reached the right result in denying the objection to the entry of judgment. Given our holdings, we find the verdict of the jury was not based on improper passion, prejudice, and misconduct of Plaintiffs’ counsel and was supported by material evidence. We, therefore, affirm the Trial Court’s judgment that the 1993 will was not the Deceased’s last will and testament.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the Trial Court for collection of the costs below. The costs on appeal are assessed against the Appellant, Arthur David Pratt, and his surety.

      . While another sister, Gaylea Anderson, was a named plaintiff in the complaint to contest the will, an order was entered prior to trial allowing Gaylea Anderson to withdraw voluntarily as a plaintiff. Ms. Anderson did not appear at trial.