### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs February

3, 2003 TENNESSEE DEPARTMENT OF CHILDREN’S SERVI CES v. L.F.

Appeal from the Juvenile Court for Sevier County No. 94-M3-496 Dwight E. Stokes, Judge

FILED APRIL 30, 2003 No. E2002-02209-COA-R3-JV

The trial court

terminated the parental rights of L .F. (“Mother”) with respect to her mino r child, D.F. (DOB: Ja nu ar y 28 , 1994) (“the child”). Mother appeals, essentially arguing that the evidence preponde rates against the trial court’s dual findings, by clear and convincing evidence , (1) tha t statutory grounds for termination exist and (2 ) that ter mination is in the best interest of the child. We affir m. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed; Case Remanded C HARLES D. S USANO , J R ., J., deliver ed the opinion of the

court, in which H OUSTON M. G ODDARD , P.J., and D. M ICHAEL S WINEY , J., joined. Monica J. Franklin, Kn oxvill e, Tennessee, f or the appell ant, L.F. Paul G. Summers , Attorne y General and Repor

ter, and Elizabeth

C. Driv er, Assis ta nt Attorney Genera l, for the appelle e, Tenne ssee De

partmen t of Childr

en’s Ser vices. OPINION

I. In Apr il, 1994, D.F., then two-and-a-half months old, and his three older siblings we r e removedfrom the custody of Mother and B .F. (“Father”), following the filing of a petition for temporary

custody by t he Tenne ssee De

partmen t of Childr

en’s Ser vic es (“D CS”). The petition containednumerous allegations of abuse and neg lect. The four children remained in foster c are for approximately one and a ha lf year s, after which they

were returned to Mother’s care

. On October 1, 1999, DCS again filed a petition for te mp or ar y cu st od y, this time on ly w ith respect to D.F., who was then age five. The petition recites that1 The record does no t reflect the ultimate decisi on o f th e trial court with respect to Fathe r’s parental rights.

Suffice it to say that his rig hts are n ot at issue on this ap pea l. -2- the child hassevere

asthma a

nd th e mo ther has failed to attend necessary medical a

ppointmen

ts and hasfailed a

nd/or refuse d t o administer

necessa ry medi cation. His asthma is exacerbated by the poor hygiene and alleged smoking in the home. An order was entered on October 4, 1999, again placing the child’s temporar y care a nd custody

with DCS. The child has remained in foster care since then. On January

14, 2002, D CS filed a p etition to term inate the parental rights of Mother and Fath er. After a plenary

hearing, the trial court terminated the par ental rights of Mother. 1 In a judg ment , entered August 7, 2002, the court below found, by clear and convincing evidence , that grounds for terminating Mother’ s parent al righ ts existed a

nd that te rmination was in the

best inter est of the child. II. In this non-ju

ry case, ou r revie w is de novo upon the record of the proceeding s below; but the record comes to us with a presumption of correctness as to the trial court’s factual determinations

–a presumpt ion that we

must honor

unless the

evidenc e preponderate s again st those findings. Tenn. R. App. P. 13(d); Wright v. Cit y of Knoxv ille , 898 S.W.2d 1 77, 181 (T enn. 1995 ); Union Carbide Corp. v. Huddl

eston , 854 S .W.2d 87, 91 (Tenn. 1993). The trial court’s conclusions of law, however, are accorded

no such presumption. Campbell v. Florida Steel Corp. , 919 S.W.2d 26, 35 (Tenn. 1 996); Presley v. Bennett , 860 S.W.2d 857, 859 (Tenn. 1993). III. It is settled that “parents have a fundamental right to thecare, custody , and control of their children.” In re Drinnon , 776 S.W.2d 96, 97 (Tenn. Ct. A pp. 19 88) (ci ting Stanley v. Illinois , 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)). However, this right is not absolute and may be terminatedif

th er e i s c le ar an d c on vi nc in g e vi de nc e j us ti fyi ng terminat ion under the pertinent statutory scheme. Santosky v. Kramer , 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Clear and convincing evidence is evidenc e that “eliminates any serious or substantial doubt concerning the correctness of the conclusions to be drawn from the evidence.” O’Daniel v. Messier , 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995). The issues raised in the pleading s, the evidence presented at trial, and the trial cour t’s finding s, implica

te the fo llowing s tatutory provision s:-3- Tenn. Code Ann. § 37-1-147 (2001) (a) The juvenile court shall be authorized to termina

te the rig hts of a pare nt or g uardian to a child upon the grounds and pursuant to the procedures set forth in title 36, chapter 1, part 1. * * * Tenn. Code Ann. § 36-1-113 (2001) (a) The chancery

and circuit courts shall have concurrent jurisdiction withthe juven

ile court to te

rminate p arenta

l or gua rdianshi p rights to a child in a separate pr oceedi ng, or as a part of the adoption p roceeding by u

tilizing a ny g rounds fo r termina tion of pa renta l o r guard ianshiprights permitted

in this part or

in title 37, chapter 1, part 1 and title 37, chapter 2, part 4. * * * (c) Termination of parental or guardianship rig hts must be based upon: (1) A finding by the

court by clea

r and convincing evidence that grounds for

termination of parental or guardianship rig hts have been established; and (2) That termination of the parent’s or guard ian’s rig hts is in the

best interests of the child. * * * (g) Initiation of

terminat ion of par ental or guard ianship r ights may be based up on any

of the fo llowing g

rounds: (1) Abandonment by the pa rent or guardian, as defined in [Tenn. Code Ann.] § 36-1-102, has occurred; (2) Th er e h as be en su bs ta nt ia l n on co mp li an ce by t he parent or guardian with the statemen

t of resp onsibilitie s in a permanency plan or a plan of care pursuant to the provisions of title 37, chapter 2, part 4;-4- (3)(A) The chi ld has bee n 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 subjecte d to fur ther abuse or neglect and which, the refore, prevent the child’s safe re turn to the care of the parent(s) or guard ian(s), still pers ist; (ii) There islittle likelihood that these conditions will be remedied at an earl y da te so that t

he child can be sa fely returne d to the pare

nt(s) or guardian(s) in the near futur e; and (iii) The continuation of the parent or guardian and child relationship great ly diminishesthe child ’s chanc es of ea rly integr ation into a safe, stable and permanent home. * * *

Tenn. Code Ann. § 36-1-102 (Supp. 2002) As used in

this part, unless the

context otherwise r

equires : (1 )(A) “Abandonment” means, for purposes of terminating th e parental or guardian rights of par en t(s) or g

uardian (s) of a

child to that child in order to make th at child a

vailable for adoption, that: (i) For a period of four (4) consec utive months immediately prec e ding the filing o f a proc eeding

or plead ing to te rminate t he pare ntal rig hts of the parent(s) or guardian(s) of the child who is the subject of the petition for termination of parental ri ghts o r adoption, that the parent( s) or guardian( s) e ither have willfully fa iled to visit or have w illfully failed to support or make reasonable pay ments towa rd th e support of the child; * * * (D) For pur

poses of t his subdivi sion (1), "willfully f ailed to support" or "willfully

failed to make re asonable

pay ments 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;-5- (E) For pur

poses of t

his subdivi sion (1), "willfu lly failed t o visit" means the willful failure, for a period of four (4) consecutivemonths, to visit or engage in more than token visitation; * * * Tenn. Code Ann. § 37-2-403 (Supp. 2002) (a)(1) Within thirty (30) day s of the date of foster care placement, an agency shall prepare a plan for each c hild in its foster care.... * * * (2)(A) The permane

ncy plan for any child in foster care shall include a statement of responsibilities between the parents , the agency and the caseworker of such ag ency.... * * * (C) Substantia

l noncompl

ia nc e b y t he parent with the statement of responsibilities provides gro unds for the termination of parental rights, notwithstanding other statutory provisions for termination of parental rights, .... IV. Mother raises four issues for our consideration: (1) whether the evidence supports the trial court’s finding of abandonment; (2) whether the evide nce support s the t rial court’s finding that Mother failed to substantia

lly c omply

with the permanency

plan; (3) whether

the evide nce supp orts the trial cou

rt’s finding of g rounds for termination based upon Tenn. Code Ann. § 36-1- 113(g)(3)(A)(i)-(iii); and (4) whether the evidence supports the trial court’s finding that termination of Mother’s parental rights is in the best interest of t he child. As pre viously noted, the real issue before us is wheth

er the evidence

prepond erates agains t the tria

l court’ s various factua l find ings underpinning its ultimate decision to terminate Mother’s parental rights. See Tenn. R. App. P. 13(d). A. With respe ct to Mothe

r’s aba ndonment o f the chi ld, the tri al court found as f

ollows: [Tenn. Cod e Ann. §] 36-1-102(1)(A) defines abandonment for the purpose of termin ating pa

rental r ights. It includes the willful failure to visit for four consecutive months and the failure to support for four consecu tive months

. [Mother] has not provided any support for [the-6- child] and ther

e appea rs to be no likelihood tha

t she will do so in

the near future. She went for a period of ten months without visiting [the child] and did not

even re cognize

him when he came t

o visit the first time. She has stated that she did not have transportation from Clinton to Sevier County

but was a ble to ge t transpo rtation to go othe r place s. She volu ntari ly moved t o Cli nton to new housi ng. In [ CASA Juvenile Servs. Ass’n, Inc. v. Musick , C /A No. 03A01-9708-JV00368, 1998 WL 136561 (Tenn. Ct. App. E.S., March 27, 1998),] the Courtaffirmed the termination of the mother. She had not visited for a period of

one year. He

r excuse w as that she could not o bt ain transpor tation or d

id not schedule visits. The Court found that for a substan tial period of

this time, her boy

friend, as well a s his n iec e provided her with transportation. There was public transport at ion availab le and transportation was available through the auspice s of the Depa rt[ment]. The Court found that she did not avail herself of any of these se rvices to vis it her childre

n. That c ase is ve

ry similar to this. [Mother] testified that she had tran spor tati on to other thin gs throug h her boy

friend, neighb ors and pu

blic tran sportatio n. [DCS] had arranged transportation for he r in the past. Even when she w a s in Sevier County after

she moved to Clinton, she never visited [DCS] or the Guardian ad Litem to reques t or dema nd visitati on. She did ask the Court to

orde r [D CS] to bring [the child] to C linton to vis it her even t hough this would entail removing him from school. She did notbegin to visit [the child] again until the termination of p arental rights tr ial was se t. The statutory definition of “willfully failed to support” and “willfully failed to make reasona ble payments toward suc

h child’s su

pport,” a s define d in Tenn. Code Ann. § 36-1-102(1)(D), was held to be unconstitutional by the Tennessee Supreme Court in In re Swanson , 2 S.W.3d 180, 188 (Tenn. 1999). The court in Swanson stated that, pending legislative action to cure the statute’s constitutional infirmity, actions in juvenile cour t seek ing to terminate parental rights for abandonment

based upon a failure to support would be controlled by t he statutory definition of abandonment

in effect prior to the enact ment of the adoption code, adopted effective January 1, 1996. Under the prior p

rovision, an aban doned ch ild was defined as one “whose parents or other persons lawfully char

ged with his [or her] care and custody . . . willf ully fail to support or make pay ments towardhis [or her] support for a period of four (4) consecutive months.” Tenn. Code Ann. § 37-202(7 ) (Supp. 1970) (repealed effective January 1, 1996). See Pack v. Ro gers , 538 S. W.2 d 607, 609, 610 (Tenn. Ct. App. 1976). Mother appare ntly paid no child support during the entire time her child was in the custody of DCS, which, at the time of trial, amounted to over two and a

half years. While Mother testified that she had taken small gifts to the child at Christmas, 2000, and for the child’s birthday in 2002, she never provided any

monetary support for the child. Mother argues that she was not under a cour t-7-

order to pay child support. In response to such an asse rtion in a previous case, this Court has stated th a t“the support of one’s children should not be conditioned upon whether one ha s been placed under a court order to do so.” State Dep’t of Human Servs. v. Manier , C/A No. 01A01-9703-JV00116, 1997 WL 675209, at *5 (Tenn. Ct. App. W.S., filed October 31, 1997). With respec t to the all egatio n of willf ul failur e to visit the child for four consecu tive months , Mother, by h

er own a dmission, d

id not visit t

he child f rom April , 2001, to

February , 2002. Mother claims that she a

ttempted t o contac t DCS on seve

ral occ asions, but the line was either busy or no one would return her phone

calls. I n respons e to this te stimony , the chil d’s DCS ca se worker te stified that Mother contacted him in August, 2001, to ask if the child could be tran sported f rom S evier Co un ty, where he was living, to Clinton, where Mother resided. The caseworker informed Mother that visitation would have to take place in Sevier County. Mother then told the caseworker that she would not be able to get transportation to Sevier County

. Mother did not schedule a visit with the child. The caseworker testified that he did not hear from Mother again until January , 2002, after the petition for termination of her parental rights had been filed. Mother admitted at trial that there were numerousindividua

ls who wer

e willing to provide

her with t

ranspor tation to ot

her plac es. We hold that the evidence does not preponderate ag ainst the trial court’s finding that there was clear and convincing evide nce of Mother’s abandonment of the child.

B. The trial court foun d that M other had not substantially complied with her r esponsibilities under the permanen cy plans , noting that “[t]he only thing that she appe ars to have completed on either plan is obtaining housing.” The initial plan of care, dated November, 1999, require d Mother to do the following: (1) attend all of the child’s future doctor appointments and demonstrate that she could properl y a dminister the child ’s medicati on; (2) attend parenting classes; (3) sec ure and maintain clean and reliable housing wi th uninterrupted utilities; (4)secure reliable transportation; and (5) attend therapy

to address parenting issues. A revised perma nency plan w as filed with the court in Februa ry , 2001, wh

ich requ ired Mother to: (1) continue attendin g the ch

ild’s doc tor appointments and demonstrate that she can properly ad ministe r the child’s medication during visitation; (2) continue supervised visitation; (3) maintain clean and s table hou sin g; and (4) obtain a driver’s license and reliable transportation. The evidence is clear and convincing that Mother failed to substantially comply with her obligations as set fo

rth in the plans of care. Mother testified that she did not attend all of the child’s do ctor appointments because she was sometimes unable to obtain transportation. Whi le Mothe r appare ntly did compl ete her par

enting c lasses, s he did not c omplete th e recom mended th

erapy to addressparenting issues. Mother was unab le to obta

in her dr iver’s li cense, d

espite tw o attemptsto do so; however, she testified that she had obtained reliable transportation through he r boyfriend

and other neighb ors and f

riends. Si gnific antly , Mother d id not utilize

this transportation to visit the child fr om Ap ri l, 20 01 , t hr ou gh Ja nu ar y, 2002, nor d id she utili ze this transportation to attend all of the child’s doctor appointments. Mother did not exercise any visitation from Ap ri l, 20 01 , t o F eb ru ar y,-8-

2002. The trial cou rt found that Mother ha d obtaine d reliab le housing , but that s he had fa iled to complete any of the other requ

irementsof the pe

rmanency pl ans. The evidence does not preponderate ag ainst the t rial court’s findings with respect to the allegations that Mother failed to substantially comply with the permane ncy plans. C. In addressing the issueof

failure to remedy

the conditions preventing the return of the child, the cour t found asfollows: [The child] has b een in the cust ody of [DCS] for ove r two y ears. There is little doub t that [Mothe r] loves [the

child] but th

ere is n o doubtthat she lacks the abi lity to p arent [the child]. [Mother] has demonstratedno improvemen t. S he testifies that she has housing now. In [

B ryant v. Br

yant , C/A No. M1999-01280-COA-R3-CV, 20 00 WL 14832 17 (T enn. Ct. Ap

p. M.S ., fil ed Oc tobe

r 10, 2000) ], the court confirmed [sic] the termination of a parent. On page 5, the Courtquoted [ In re M.W.A. , Jr. ], 980 S.W.2d 620, 623 (Tenn. Ct

. App. 1998) as follows: Although the parents have impr oved thei r living conditions with a clean, well-furnished home, they have not demonstratedthat their parenting skills have improved or will likely impro ve i n the nea

r future even with

additiona

l support. This is exactly the case here. [Mo ther] has h ad pare nting ski l ls training for thirteen months through therapeutic visitation but has shown no improvement

in her parentin g skills. She probably will never improve because she states and bel iev es that she did not need to improve her skills and did not need any a dditional medi cal training for [t he ch ild]. There is ample evidence to support the trial cou rt’s dete rmination that these

conditions are unlikely to be

remedied in the near future, and that the conti nuation of

Mother’ s legal

relation ship withthe child

will g rea tly d

iminish the

child’s c hances o f an ear

ly in tegra tion into a s table hom

e environm ent. D. Fi na ll y, we conclude that the evidence contained in t he record supports the trial court’s finding that the termination of Mother’s parental rights is in the best interest of the c hild. The trial court succinctly summar

ized the factors pertaining to this issue: In [Tenn. Code Ann.] § 36-1-113(1) the statute designates factors that the court shall consider in de termi ning whether termination of-9- parental rights is in the best interest of the c hi ld. The Court is not limited to only looking at those fa ctors. [The child] has been in limbo for a long time and deserves a permanent plac ement. He has been in care for over

two years this time and has been in care before. He has shown rema

rkable improvements since being in foster care homes and has expressed a desire to beadopted. The Court must look at [the child’s ] time line a

nd not at th

e conve nience o r time line s o f [Mothe r]. [Mothe

r] has not even s hown enou gh impro vement to allow [the child] to have unsupervised visitation with her at this time. There is no testimony that she will ever improve. [The child] deserves a permane nt home wit

h parent s who will provide for his medical and physical needs. I t is clear that the p arenta

l rights of [Mother

] should be terminated. Both the grounds for terminat ion and the

best interest s tests hav e been me

t. The evidence does not preponderate a gainst these findings. V. The judgment of the trial court is affirmed. This case is re manded for enforcement of the trial court’s judgmen

t and for collecti on of cost s assesse d below, a ll pursuant

to applic able

law. Costs on appeal are ta xed to th e appellant, L.F.

_______________________________ CHARLES D. SUSANO, JR., JUDGE