### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE April 1, 2003 Session

STATE O F TENN ESSEE D EPART MENT O F CHILD REN'S SERVIC ES v. B.L.K. AND E.C.C.
Appeal from the Juvenile Court for Hamilton County Nos. 169,829 and 169,830 and 169,831 Suzanne Bailey, Judge

FILED MAY 20, 2003

No. E2002-01724-COA-R3-JV

The State of Tennessee, Department of Children’s Service s (“DCS”) obtained temporary custody of the five minor children of B.L.K. ( “Mother”) after Mother r equeste d assistan

ce from DCS beca

use of her inability to care

for the children due to her mental and financial c ondition. DCS later sought to terminate Mother’s parental rights. Custody of Mother ’s two olde st

childre n was tra nsferr ed to their biological father. After a trial concerning Mother’ s parent

al righ ts to her th

ree y ounges t children, the Juvenile

Court determined there were sufficient g rounds to terminate Mother’s parental rights and that doing so was in the best interests of the children

. Mother a ppeals, c laiming D CS failedto prove by clea

r and convincing evidence that there were sufficient grounds to terminate her parental rights. Mother also claims DCS failed to p ro ve by clear and convincing evidence that termination of her p arenta l righ ts would be in the best interests of the children. We affirm the Juvenile Cou

rt’s judgment.

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

D. M ICHAEL S WINEY , J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS , J., and C HARLES D. S USANO , J R ., J., joined.

Jim K. Petty, Chattanooga, Tennessee , for the Appellant B.L.K

.

Paul G. Summers , Attorne y General and Rep orter, and Douglas E. Dimond, Assistant Attorney Genera l, Nashville, Tennessee, for the App ellee State of Tennessee, Department of Children’ s Service s.-2- OPINION Background

Mother contact ed DCS on April 22, 2000, asking for assistance in caring for her five minor children, currently

ages 4, 5, 6, 11, and 12. Mother informed DCS that she was two months behind on her re

nt, was havi ng emoti onal prob lems, and was undergoing counseling . A Petition for Temporary

Custody was filed three da ys later, and the

children came under DCS’s tem porary custod y after th e petition was gr anted by the Tria l Court.

On May 25, 2000, a

Permanency

Plan (“Plan”) was developed with the stated goa l of returning the

children to Mother. The Plan acknowledged Mother was receiving treatment and counseling for depr

ession. Th

e Plan dir

ect ed Mother to continue such treatment until she emotiona lly was able to take care of

the child ren. The Plan requ ired Mother to main

tain an income throu gh employ

ment and/

or public assi stance which was sufficient to enable her to c are for the children. Mother also was instructed to mainta in contact with DCS and cooper ate with social service providers. The “expected achievement date” for Mother to complete the Plan’s requirements was November

of 2000. Mother signed the Plan and acknowledged that its conten

ts and re quireme

nts were explained to her.

On Jun e 26, 200 0, Kimber ly A sh (“Ash ”), a DCS C ase Mana ger, f iled an in terim report which updated the Trial Court on the status of the children in foster care as well as Mother’ s progre ss toward completing thePlan’s requireme nts. Ash stated in that report that Mother was not maintaining contact with her and Mother’s phone had been disconnected. During a schedu led visit, Mother told A sh tha

t she w ould b e sta

rting a jobin the

near futur e. Mo ther

then misse d her

next scheduledvisit. Another interim report was filed on September 18, 2000. At that time, Ash reported Mother was continuing to visit her children and was continuing thera py. Howeve

r, Mother had lost her job and was “constantly having transportation problems.”

A third interim report was filed onJanuary 16, 2001. By then, Mother’s attendance at the rapy had bec ome spora

dic, and s he had been withou t medicat ion for th ree mont hs. Moth e r missed her re-certification meeting f or food stamps because of transportation problems after her

car was “hit” in a

n accide nt. Mother

had to re -apply

for bene fits and w as requi

red to work

one day pe

r week at Goodwill in order

to maintain those benefits. Mother reported to Ash that she had to borrow her n eighbo r’s food stamp card in order to feed the childre n when they visited her . Mother’s entertainment

center and car had bee n reposse ssed. She

was unab le to keep her cell phone activated. Mother admitted being “involved” with a neighbor ’s married brother, but she denied any inapprop riate act ivity too k place w

hile the children w ere visit ing. Moth

er expre ssed her

intent to return to Ohio where her family lived. Mother

believed the support of her family would help her and that her empl oym

ent oppor tunities w ould

be better in Ohio. An interim report filed by Ash on June 26, 2001, stat

es Mother

continue d to visit the

childre n, althoug

h Mother e

xpressed u

ncerta inly several times about being able to manage the childre n. Ash went on to add that Mother “remains1 Th e father o f Mo ther’s two olde st childre n lived in Ohio. By June of 2001, he had petitioned the Trial Court

for custod y of his child ren. T he Sta te of O hio un derto ok a h ome evalua tion, etc., and eventually i nformed the Trial Court that the father would be ab le to care p rop erly for t he chil dren. The f

ather’ s peti tion f

or cust ody was gra nted and hi s two chil dren went to li ve with him i n Ohio. The remainder o f th e presen t li tigati on, therefore, focused solely on the
rema ining thre e youn gest child ren.

2 DC S also sough t to term inate the pare ntal rights o f E.C .C., the fath er of the three yo unge st childre n. E.C .C.’s parentalrights we re term inated

. He did no t app eal. Ac cord ingly, we wil l not discus s the tri al t esti mony or fac ts whi ch perta in only to E.C .C.
-3- unemployed, and was r

ecently reloca ted to a one-bedroom apartment. After 14 months, [Mother] has made no sincere efforts to have her children returned.” 1

A second Permanency

Plan was developed. T his s econd Plan was approved by Mother on July 12, 2001. Mother’s goals and e xpectations in the second Plan were identical to those in the first Plan, exce

pt the “e xpected a chievem ent date s” were chang ed from N ovember of 2000 to November of 2002.

On August 15, 2001, DCS fi led a petition seeking to terminate Mother’s parental rights to her young est three children. 2 DCS alleged that: 1) Mother had abandoned the childre n by willfully failing to make reasonable pay ments towardthe support of the children for four consecutive months immediate

ly p receding the f

iling of the petiti o n; 2) DCS had made re asonable

effortsto assist Mother wi

th est ab lishing a

suitable home for th

e childr en afte r they were pla ced into D CS
cu st od y, but Mother

had made

no reaso nable ef

forts to provide a suitable home and demonstrated a lack of conce rn for the childr

en to such

a degr ee that it was unlike

ly s he could p

rovide a suitable homefor them at an earl y date; 3) the childre n had bee n remove d from the

home for at least s ix months, the conditions which led to their removal persisted, and ther e was littl e likeliho od that the se conditions would be remedie d at an ea rly date whic

h would pe

rmit a safe r eturn of the child ren to the home; and

4) contin uation of the pare nt/child relationship would greatly diminish the children’s chances of early

integration into a safe, stable and permane nt home. DCS also alleged there had not been substantial compliance by Mother with the terms of the Plan, and due to Mother’s mental and emotional condition she was incompetent to provide for the child ren. Fin ally , DCS alleg ed it would be in the best interests of the children for Mother’s pare ntal rights to be terminated.

In September of 2001, Ash filed another interim report with the Court, noting that while the children remained bonded with Mother, Mother r emained unable to demonstrate that “she is able to parent, protect, and provide for her ch ildren on a consistent basis.” Ash noted Mother finally had found another job but quit af ter thre e weeksbecause

of trans portation

problems . Ash also discussed a situation involving one of the children falling off a top bunk of the bed and in

juring himself when Mother was exercising visitation. Mother later told Ash th e child complained of headaches and appeare d sleepy. Mother explained

she did not

take the child to a hospital b ecause she did not know if she could do that since DCS had custody of the ch ild. The f oster pa rents took the child to a

hospit a l and, as it turns out, the child had cracked his skull and his head remained swollen for several day s. The children also re p orted to Ash that Mother’s “boyfriend” had “slept-4-

over” on several occasions, even though Mother had led Ash to believe this relationship had ended. The last interim report was filed with the Court on March 11, 2002, at which time Ash informed the Trial Court that Mother had moved back to Ohio and was maintaining sporadic c ontact with the children.

The trial began on March 8, 2002. Mother testified she retu rned toToledo, Ohio in November

of 2001 and has continue d to resid e there ever since. Mothe

r acknow ledged

voluntar ily relinquishing temporary c ustody of her childre

n to DCS in April of 2000, and that the children have been in foster

care si nce then . Mother r elinquished tempor

ary custody because she was not financi ally

able to care for the children and ha d no emotiona

l support in Tennessee. Her mental health at that time also prohibited her from prop erl y caring for the children. When asked if she
curren tly was menta

lly d isabled, Mother in

itially responded “I

don’t know honestly”, but later sta ted that she was not mentally disabled. Mother then was asked if she was seeking disability be nefit s from the State of

Ohio on the basis that she was mentally disable d and unable to work. Mother
r e sponded that she did not know what to say. Mother la ter admitted to swearing under oath in a court p roceeding that she mentally was unable to work. Notwithstanding the foreg oing, M othe r claimedto be more stable a nd more on

track sin ce retu rning to Ohio. While

in Tennessee, Mother received mental he alth trea

tment fro m Dr. Supa

n begin ning in April or May of 2000 a

nd continuing until June of 2001, when her case was clos ed beca use of he r failur e to appe ar at ap

pointments

. Mother did have o ne additi onal coun seling s ession pr ior to returning to Ohio and was placed on medication which seemed to help the depression. Mother discontinued her medication because she felt she did not need it anymore

.

Mother acknowl edged

she did not

p rovide any

money toward the suppor t of her children after

they came

under the temporary

custody of DCS. She

ackno wledge d she h ad eno ugh money “coming into her house” off and on to take c are of herself and that she received child support i n the amoun

t of $440 pe

r month fo

r approxima

tely one year whil e the chi ldren we re in DCS custody. Mother claimed she did not know she was supposed to provide any c hild supportfor her children. She did, however, provide for the children when she exercise d visitatio n on the weekends. Mother had n o in co me ot he r t ha n “ ge ne ra l r el ie f f ro m w el fa re in Oh io .” If s he re ga in ed cu st od y, Mother stated she would take care of the ch ildren e ither thr ough dis ability

pay ments or sh

e would get a job. Mother admitted she was no better off financially now than she was two years a go. She
was financially unable

to supporther chil dren and it was unc ertain w

hen in the future she would be able to support them. Mother acknowledged it was unfair to her children to have to wait any long er for her to be able to take care of them, and they needed a stable and permanent home now.

Mother testifie d the Plan r

equired her to maintain counseling, visit her children, and
o btain a sufficient income to care properly for the children. Again, Mother ack nowledged he r counseling was terminated due to her lack of attendance, that she had no inc ome at va

rious time s, that she did not pay any

support towards the children when she did have inc ome, and she was unemployed. Mother admitted to being unable to care for the c hildren during the past two years and cla imed she could

care f or them no w but for t

he fact that she h ad no inco me. Mothe r li ves i n-5-

subsidized housing

with rent al pay ments of $25 pe

r month an d feeds h

erself with the assistance of food stam ps.
Mother

also testified she moved to Tennessee with E.C.C. and his mother and at the outsetthey

were able to care for a

ll of the children. Mother was employed the first six months while in T enn essee, a

nd E.C.C.’ s mother helped wit h the baby sitting. E .C.C. and h is mother a

bruptly returned to Ohio, leaving her

alone wit h all five children. Mother then lost her job and began f eeling hopeless

. Mother testified she had adequate housing to car e for the children for a majority of the time they were

in DCS custody. Mother eventually moved into a one bedroom apartment but has made arrangements to return to a larg er apartment if her children are returned to her. Mother worked at Conagra and Race Mart I nternational while the children were in DCS custody. She lost her job at Race Mart Interna

tional after her

car was totaled

and she had no transportation. Mother then went to wor k at LaQu in ta In n but lost that job when a neighbor, who was providing he r transportation, moved and she n o longe r had a w ay

to get to work. Mot

her’s c ar was totale d in a hit and run accide nt, and they

never lo cated the respon sibledriver. Mother has made several eff orts to find work since returning to Ohio, includingsigning up for work at severa l temporary a

gencies. Mother has made an appoin

tment for counselin g. Although Mother denied having a n alcohol problem, she admitted attending Court in November with the smell of beer on her breath. Mother also admitted she did not take one of her children to the doctor after he injured himself jumping on the bed.

After Mother’s t estimony was conclude d, the trial was continued until April 29, 2002 , at which time

Mother again was called to testify . Atthat time, Mother continued to live in a onebedroom apartment but was able to be transferred to a three bedroom apartment if she regained custody of the children. Mother had secured transportation and was employ ed at Owen’s Corni ng. She worked a

t this job for on

ly tw o day s before

returning to Ten

nessee f or the se cond day

of the tri al. Mother testified to her efforts to secure employ ment since returning to Ohio. With hernew job, she will be worki ng 20 to 3 0 hours pe r week f or the fir st

30 days and then

full-time after th at. The Sta

te of Ohio would

assist Moth

er with ob taining

child ca re services. While Mother still had not seen a therapi st, an appointment was scheduled for May 6. Mother’s claim for disability bene fits was denied, and she h as not pur sued that claim any furthe

r. Mother no longer believed she wasdisabled. Ash testified she is the DCS Case Manager assigne d to this case. Ash stated she at
one point thoug

ht Mother might be able to r egain c ustody of the ch ildren, but Mother’s situation quickly deteriorated. Other

than possibly that one time, Mother has never been in a position to care for the children since they

came into

DCS custody . Ash

developed a Permanency Plan for Mother and explained to her what needed to be done to rega in custody of her c

hildren. Mother told Ash she
was contempl ating mo ving ba ck to Ohio

because she thought

she could do better there, but it took Mother a ye ar and a

half to ma

ke that mo ve. Ash

stated Mother was able to obtain a few jobs but “quit them ver y qu ickly too.” Bu ses w ere ava

ilable to M other when she ha d transpo rtation pr oblems, butMother to ld Ash she did not know

the bus s ystem . Mother’s treatment was closed by the therapi st because of

missed appointments. Although Mother claimed she could not find a job, Ash po inted out Mother was able to go camping with her sister a nd attend Mardi Gras. Mothe r mad e statemen ts to Ash that she was not even sure s he wanted her childre n back because th

ey were so3 We note that Mother w as no longer employ ed when she f

il ed th is Aff

idavi t of Indi gency . Becau se he r job loss occurred after the t rial and thus coul d not have impact ed on the Trial Court’s ruli ng, we wi ll n ot consi der thi s fact on ap pea l.
-6- deman ding. Ashwent on to discuss some of the events described in her interim reports, as alre ady set forth previously, such a s the incident where one of the children fractured his skull. Ash was not aware that Mother had secured e mployment a few da

ys prior to the second da

y of the hea

ring.

After the above testimony was concluded, the Guardian ad Litem informed the Trial Courtthat she believed it was in the best interests of the children for Mother’s parental rights to be terminated.

The T rial Court entered a final decree on June 25, 2002, terminating Mothe r’s parental rights. In the final dec ree, the Trial Court stated that after considering all of the testimony and ot her evidence submitted at trial, it found by clear and convincing evidence that: the childre n had been re

moved fr om the home

and wer e inthe custody of DCS for at lea st six months; DCS had made reasona

ble eff orts for a t least four months to

assist Mother

with establishing a suitable home; Mother has made no reasonable efforts to provide a suitable home and de monstrated a lack of concern for the children to such a deg ree that it was unlikely she could provide a suitable home at an early date; the conditions which led to the removal of the children persisted and there wa s little likelihood that these

condition s would be

remedie d at an ea

rly date so th e childr en could be returned to the home; continuation of the legal parent and child rela tionship w o uld greatly

diminish the children’s chances of

early integr ation into a

stable and permanent hom

e; Mother failed to comply in a substantial manner with the reasonable requirements of the Plan; Mother willfully abandoned the children for more than four consecutive months prec eding the filing of the petition; Mother’s mental and emotional condition was such that she was incompetent to care for the children and her mental condition was likely to remain such that she would be unable to assume responsibility for the children in the near future, and; it was in the best interests of the child ren for Mother’ s parent

al righ ts to be terminated.

Mother filed a N otice of

Appeal a nd a Unif orm Civil Af fi da vi t o f In di ge nc y. 3 In a thoro ugh and well written brief by appointed counsel, Mother appeals the final decree of the

Juvenile Court. Mother asserts DCS failed to prove by cl ea r and convincing evidence that there were sufficient ground s to terminate her parental rights. Mother also c laims DCS failed to prove by clea r and convincing evid

ence tha t termi nation of h er parental rights was in the best interests of the children.
Discussion

The factual findings of the Juvenile Cou

rt are a ccorde d a presu

mption of c orrect

ness, and we wil l not overt urn th ose fac tual findi ngs unless the evidenc e preponderate s again st them. See Tenn. R. App. P. 13( d); Bogan v. Bogan , 60 S.W.3d 721, 727 (Tenn. 2001). With respect to legal issues, ou r revie w is conducted “under a pure de novo standard of review, according no deference-7-

to the conclusions of law made by the lower courts.” Southern Constructors, Inc. v. Loudon Coun ty Bd. Of Educ. , 58 S.W.3d 706, 710 (Tenn. 2001).

In State v. D .G.S.L. , No . E2001-00742-COA-R3-JV, 2001 Tenn. App. LEXI S 941 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed , this Court discussed the relevant burden of proof in casesinvolving

terminat ion of par ental rig hts. Speci fically , we obse rved:

It is well e stablishe d that "parents have a fundamental rig ht to the care, custody, and contro l of their ch ildren." In re Drinnon , 776 S.W.2d 96, 97 (Te nn. C t. App . 1988 ) (cit ing Stanley v. Illinoi s , 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)) . "Howe ver, this right is not absolu

te and pa rental r ights ma y be terminat ed if the re is clear and convincing evidence justify ing suchtermination under the applica ble statute." Id. (citi ng Santosky v. Kramer , 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)).

Termination of pare

ntal or g uardian ship rights must

be based upon a finding by

the co urt that: ( 1) the grounds for termination of parental or gu ar di an sh ip ri gh ts ha ve be en es ta bl is he d b y c lea r and convin cing eviden ce; and (2) termination of the parent’s or g uardian’s rights is in the best interests of the child. Tenn. Code Ann. § 36-1- 113(c). Before a parent’s rights can be terminated, it must be shown that the pare nt is unfit o

r su bstantial

harm to the

child will r

esult if parental rights are not terminated. In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). Similarly, before t he court may inquire

as to whether termination of parental rights is in thebest interests of the child, the court must first determine that the grounds for termination have been established by clear

and convincing evidence. Tenn. Code Ann. § 36- 1-113(c). This Court discussed the “clear and convincing evidence” standardin O’Da niel v . Messier, 905 S.W.2d 182 (Tenn. Ct. App. 1995), a s follows:

The “clear and convincing evidenc e” standard defies precise

defin ition. Majors v. Smith, 776 S.W.2d 5 38, 540 (T enn. Ct. Ap p. 1989). While it is
more exacting than the preponderance of the evidence standard, Santosky v. Kramer, 455 U.S. a t 766, 102 S. Ct. at 1401; Rentenbach Eng’g Co. v. General Realty Ltd., 707 S.W .2d 524, 527 ( Tenn. Ct. A pp. 1985) , it does not re quire such certainty as the beyond a
reasona ble doubt standard. Bran don v. Wright, 838 S.W.2d 532 , 536 (Te

nn. Ct. App . 1992); State v.4 The st atutory de finit ion o f “aban don men t” refere nced in this statute ha s bee n dec lared unco nstitutiona l.

Hence, we hav e subs ti tut ed “pr ior law” to reference the l aw which is t o be applied until the s tatute i s amended by the legislature

. -8-

Groves, 735 S.W.2d 843, 846 (Tenn. Crim . App. 1987).

Clear

and convincing evidence eliminates any serious or sub stantial doubt concerning the
correctness of the conclusions to be drawn from the evid ence. See Hodges v. S. C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn. 1992). I t should produce in the fact -finde r’s mind a firm belief or conviction withregard

to the truth of the allegations sought to be establis h ed. In re Estate of Armstrong , 859 S.W.2d 323, 328 (Ten

n. Ct. App. 1993); Brandon v. Wrigh t, 838 S.W.2d at 536; Wiltcher v. Bradley, 708 S.W.2d 407, 411 (Tenn. Ct. App. 1985)....

State v. D.G.S

.L. , No. E2001-00742-COA-R3-JV, 2001 Tenn. App. LEXIS 941, at **16-18 (Tenn. Ct. App. Dec. 28, 2001).

Termination of pare

ntal rig hts may be based upon a num

ber of st a t utory gr ounds containedin Tenn. Code Ann. § 36-1-113(g). The four g rounds upon which the J uveni le Court based its ruling are:

(1) Abandonment by the parent or guardian, as defined in [prior law], has occurred; 4
(2) There has been substantial n oncompliance by the parent or guardian w ith t he 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 hasbeen re moved fr om the home

of th e p arent or guardian by o rder of a court for a period of six (6) months and: (i) The conditions which led to the child’s removal or other conditions whi ch in all rea sonable p robabilit y would cause the child to be subjected to further abuse
or neglect and which, therefore , prevent the chi ld ’s-9- safe return

to the care of the parent(s) or g uardian(s), still pers ist; (ii) There is little likelihood that these conditions will be remedied at an e arly dat

e so that the child can be safely re turned to the parent(s) or guardian( s) in the near future; and (iii) The continua

tion of the

parent o r guar dian and c

hild relation ship great

ly diminishes the child’s chances of
ea rl y integration into a safe, stable and permane nt home.

* * * * (8)(A) The ch an ce ry a nd circ uit courts shall have jurisdiction in an ad o ption procee ding, a

nd the cha

ncery , circuit, and juve

nile courts shall have jurisdiction in a sep arate , independent proceeding conducted prior t o an adoption p roceed ing to determine if the parent or guardian is mentally incompetent

to provide for the further care and supervision of the child, and to terminate that parent's or guar dian's rights to the child. (B) The court ma

y te rminate the parental or guardianship rights of that person if it determines on the basis of clear and convincing evid

ence tha t: (i) The parent or

guard ian of the child is incompet

ent to adequa tely provide for the further c ar e and supervision of the child because the parent's or gu ardi an's mental condition is presently so impaired and is so likely

to remain so that it is unlikely that

the parent or gua rdian will be able

to assume

or resum e the care of and

responsi bility for the c hild in the near future, and (ii) That

terminat ion of par

ental o r guard

ian rights is in the best interest of the child. Tenn. Code Ann. §§ 36-1-113(g)(1) - ( g)(3), and (g)( 8).

The Juve nile C ourt f ound t here wa s clear and co nvin cing e vidence that all four of these statutory gr

ounds for termination of Mother’ s parent al righ ts had bee

n met. I n making this-10-

determination, the Juvenile Court hea

rd the te st im on y of the wit nesses, including

the DCS representativeand Mother. “Unl ike th is Court, the [Juvenile Court] observed the manner and demeanor of the witnesses and was in the bes t position to evaluate their credibility .” Union Plan ters Nat’lBank v. Island Mgmt. Auth., Inc. , 43 S.W.3d 498, 502 (Tenn. Ct. App. 2000). The trial court’s determinations regar

ding cr edibility are accorded considera

ble deference

by this Court. Id. ; Davis
v. Liberty Mutual Ins. Co. , 38 S.W.3d 560, 563 (Tenn. 2001). “‘[A]ppellate cou rts will not reevaluat e a trial ju dge’s a ssessmen t of witne ss credibility absent cle ar and convincing evidence to the contrary .’” Wells v. Tennessee Bd. of Regents , 9 S.W.3d 779, 783 (Tenn. 1999). We find no such “clear and convincing evidenc e to the contrary ” in this record.

Based on our review of the record, including the facts detailed above, we do no t believe the Juvenile

Court committed any rever sible error in reaching its conclusion that clear and convincing evidence existedto terminate Mother’s parental rights pursuant to Tenn. Code Ann. §§ 36-1-113(g)(2) and (g)( 3)(A)(i) through (iii). There ha s been substantial noncompliance with the terms of the Plan. The proof show ed Moth er consistently was una ble to support the children f inancia lly and Mother’s therapy

sessions were stopped due to her lack of attendanc e. M othe r admitted she was u

nable to care for the children for the two y ears they have be en in DC S c us to dy. Mother’s last minute

ability to secure employ

ment two days befor

e the second day

of trial began, as
w ell as the scheduling of a therapy session in the near future is, quite simply, too little too la te

. These and other facts as previously set forth establish Mother’s substantial noncompliance with the terms of the Plan. Furthermore, Mother’s financial and e motional instab ility were the conditions leading to the re

moval of th

e childr en and the

Trial Cour

t did not co mmit

reversible error

when it concluded these pr

oblems still persisted and that the other factors set forth in Tenn. Code Ann. §§ 36-1-113(g)(3)(A)(i) - (iii) likewise were proven by clear and convincing evidence

. Becau se we affirm the termination of Mother’ s parental rights purs uant to Tenn. Code Ann. §§ 36-1-113(g)(2) and (g)(3 )(A)(i ) throug

h (iii), w e prete

rmit the issues of whether there was sufficient proof that the children had been abandoned by Mother for

willfully failing to support

them, and whether Mother’s mental condition rendered her incompetent to provide adequately for t h e further care and supervision of the childre n. Having affirmed that two statutory grounds for termination were proven by clear

and convincing evidence, we next address Mother’s claim that it was not proven by clear and convincing evidence that the termination of her pa rental r ights wa s in the best interests of the children. Tenn. Code Ann. § 36-1-113(i) describes the standard for determin ing whe ther ter mination isin the bes t interest s of the child in suc h cases:

(i) In determin

ing whe ther te rmin ation of parental or guard ianshiprights is in the best interest of the child pursuant to this part, the court

shall consider, but is not limited to, the follo wing:-11- (1) Whether

the parent or guardian has made such an adjustmentof

circumstance, conduct, or conditions as to make it safe and in the child’s b est inter est to be in the home of the parent or guardian; (2) Whether

the pare nt or gua rdia n h as faile d to effect a lasting ad justment after reasona

ble eff orts by availab le social service s agencies for such dura

tion of time

that lasting adjustment does not reasonably appear possible; (3) Wheth er

the parent or guardian has maintained r e gula r visitation or other contact with the child; (4) Whether

a meaningful relationship has otherwis e b een established be twee n the parent or guardian and the child; (5) The effect a change of caretakers and phy sical enviro nm ent

is likely to have on

the child ’s emotion al, psychologic al and medical condition; (6) Whether

the parent or guardian, or o therperson residing with the parent or guardian, ha s shown br ut al it y, ph ysi ca l, se xu al , e mo ti on al or ps yc holo gi cal abuse, or neglect toward the child, or another child or adult in the family or household; (7) Whether t he physical envir onment of the parent’s or guardian’s home is he althy and safe , whethe

r there is criminal activity in the home, or whether there is such
use of alcohol or controlled substances as may render the pare nt or gua rdian co nsistently

unable to care for the child in a safe and stable manner; (8) W hether

the parent’s or guardian’s mental a nd/or emotional status would be detrimental to the child or pre vent the parent or guardian from ef fective l y providing safe and

stable care and supervision for the child; or (9) Whether

the parent or guardian

has paid c

hild support consistent with the child support guidelines-12- promulgated

by the depar

tment pursuant to § 36 -5- 101.

Tenn. Code Ann. § 36-1-113(i). After considering a ll relevant statutory fa

ctors in light of the record before us, we do not believe the Juvenile Court committed reversible error when it concluded that clear and convincing evidence established that it was in the best intere st of the childre

n to termin ate Mother’ s parent

al righ ts.
Conclusion

The judgment of the Juvenile Court is affirm ed, and this cause is remanded to the Juvenile Courtfor such further proceeding s as may be re quired, if any, c onsistentwith this Opinion, and for collection of the costs below. The costs on appeal are assessed ag ainst the Appellant B.L.K.

___________________________________ D. MICHAEL

SWINEY, JUDGE