### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON ASSIG NED O N BRIE

FS NOVEMBER

7, 2002

IN THE MATTER OF L.J.C., A.L.C. AND J.R.C. STATE OF TENNESSEE DEPARTMENT OF CHIL DREN’S SERVICES V. TABITHA STEWART

Direct Appeal from the Juvenile Court for Tipton County

No. J4427 William A. Peeler, Judge

No. W2001-01799-COA-R3-CV - Filed July 24, 2003

This is an appeal of

a termination of parental rights. For the following reasons, we vacate the portion of the juv enile

court’s ruling f

inding Mother willf

ully failed to support he

r childre n and aff irm all other findings of the court below, thus terminating Mother’ s parental rights.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Vacated in Part; Affirmed in Part and Remanded

A LAN E. H IGHERS , J., delivered the opinion of the court, in which D AVID R. F ARMER , J., and H OLLY M. K IRBY , J., joined.

Didi Christie, Brownsville, TN, for Appellant

Paul G. Summers, Attorney General and Reporter, Elizabeth C. Driver, Assistant Attorney Genera l, Nashville, TN, for Appellee

OPINION

Facts and Procedural History

In 1994, Appellant T.S. (“Mother”) surrendered c ustody of her three children. In Marc h of 1994, a consent order was entered g iving tempora

ry custody

of the oldest child, L.J.C. to her maternal grandmother. The record is not cl ear on th e where abouts of the father durin g this time frame, but it

is clear that the father

was inca rcera ted at some

point and r

emained incarc erated

until very ea rly in 1995. It is also clear that upon his release from prison, he had nothing further to do withhis children. In August of 1994, Mother broug

ht her two you ngest children, A.L.C. and J.R.C.,
to the juvenile court of Tipton County beca use she could not care

for them and was living in a motel

room. Mother felt that she was incapable of taking care of the children because of a rece nt surgery-2-

and because shehad no pr ospects o f work or

of a stab le home wh

ile recovering. The juvenile court entered a protective custody

order for the two childre n. On September 6, 1994, the juvenile court declared the two children to be dependent and neglected a nd placed them in the temporary legal custody of the Department of Children’s Services (DCS) which placed the m in foster care. Mother moved the juvenile court to return custody of the two young er children to her by petition filed on December

19, 1994 alleging that she could no w prov ide a suita ble home f

or the ch ildren. D CS initially saw progress toward its goal of r eunification of the children with Mother, as on March 1, 1995, DCS report noted that Mother ha d a fully furnished a partment, had completed parenting classes and was attending meetings with counse lors “faithfully.”

However, wh il e i n D CS cu st od y, it became appare nt that A.L .C. had be en sexuall y abused. During treatme

nt, A.L .C. named

Mother’ s boyfriend a

nd later husband ( “Boy

friend” ), among

others,

as a perpe tr ator. When DCS learned that the oldest child, L.J.C., who had remained in her grandmother’s custody for some time, wa s again living with Mother and Boyfriend, DCS petitioned the juvenile

court fo r custody of L. J.C. L.J.C. was placed in the protective custody of

the State by an order entered March 10, 1995.

On March 27, 1995, Mother again petitioned for re turn of the two younge

r children stating that she had established a stable home and had complied with the plan of care. Mother

also asked that the matter of L.J.C. be consolidated with that of the two young er children. On April 15, 1995, a consent order consolidating and continuing the cases indefinitely w as entered.

DCS continue d to pursue

a course of reunification. On September 6, 1995, a progress report showed that Boy friend had moved away , but that, although there was no phy sical contact, Mother maintained telephone contact with him. DCS recommended that a “no contact orde r” be put in place agains tMother a

nd Boy friend. DCS also recommende d that M oth er and the three children have unsupervisedday visits. The report showed Mother’s progre ss was “F avorabl e”, the s econd hig hest rating on a scale of five possible ratings in the categ ory of “Reducing Risks Requi ring Pla cement in Cu st od y” and that M other ha d complet ed “Most T asks” in

regards to her co mpliance with the c ase plan. Care for the children continued with the ever pre sent admonishment thatthe child ren wer e to have no contact with Boy friend.

The progress report dated April 3, 1996, however, reflected a completely different situation. The report s howed tha

t DCS had received r

eports in January that Boy friend w as aga

in staying with Mother. When confronted, Mother admitted that these allegations were true and tha t she was five months pregnant with Boy friend’s child. DCS gave Mother an ultimatum on February

28, 1996 , an ultimatum requiring Mother to choose eithe r B oyfriend or he

r children. After receiving no r eply from Mother, receiving add

itional re ports of Mother’s continuing contact with Boyfriend, and Mother’s
cont inued denial that Boyf riend abused A.L.C., DCS chang ed its goal from reunifica tion t o termination. DCS filed a petition for review a nd disposit

ion on May

2, 1996 wit

h its stated goal of adoption for the children. Sometime during this period, Mother married Boy

friend. On August 26,

a plan of care meeting was held, a n d the rep ort showed that Mother had “met very few of her ob li ga ti on s/ re sp on si bi li ti es ” u nd er th e p la n a nd ha d n ot vi si te d t he ch il dr en si nc e J ul y.-3-

Moth ercontested the change of DCS’ g oal to adoption and after several continuances, a he aring was held on August 29, 1996. At this hearing, L .J.C.’s status was changed to that of a dependent

and neglected child, but

DCS’s stated goal of adoption was denied with a further he aring

on the issue set for March 13, 1997. A progress report dated Marc h 5, 1997 shows that Mother and Boyfr iend(now husband) had moved to Nashville but had since returned, that Mother had canceled several visits with

the children citing the distance, and still denied that Boyfrie

nd sexually abused A.L.C.. This report h ad Mother rated a s “No pro gress”

in the category

of “Reducing Risks Requiring Placement

in Custody

” and ha ving co mpleted “No Tasks” in regar ds to the c ase

plan. A later report dated April 23, 1997 showed that Mother and Boyfr iend had a violent altercation and that Mother had subsequently filed f

or divorce from Boyf

riend. A subsequent report stated that DCS had been informedthat

the divorce became final, but that no documents were presented. A hearing washeld

on July 31, 1997 in which DCS’s request that the children remain in foster care and that the g oal of DCS become a

doption ra

ther tha n reunif ication w as gra

nted. Moth

er’s visi tatio n with the t hree children was al so susp ended. The order reflecting this decision was entered on October 9, 1997.

Mother app eal ed t hi s de cis io n t o t he C irc ui t C our t o f Ti pt on C oun ty. In an order dated, January 12, 2000, the circuit c ourt deni ed her a ppeal. This orde

r contai ns the fin dings of

the circ uit
court that Mother

was, in January of

2000, again living with Boy friend and had been doing so since his release from prison

three months earlier. Mother testified that she divorced Boy friend at the in siste nce of DCS. Mother testified that she was unemploy ed and had been unemploy ed for the previo us two year s and that she relied on Boy friend to provide her a place to live and for othe r necessi ties. Mother also testified that she was unaware of any sexual

abuse by B oyfriend a

gainst her children. At some point during this time period, DCS became aware that L .J.C., the oldest ch ild, also alleged that Mother’s Boyfriend had sexually abuse d her. On October 17, 2000, DCS filed a petition
to terminate parental rights aga inst Mother and the children’s biological father who ha d remained uninvolved throughout the entire time thechildre n were in DCS custody. The petition allege d that under T.C.A. §§ 36-1-1 03(1)(A )(l) and 36-6-113(g)(1) father had willfully abandoned the children and failed to pay a

ny child support. The petition alleg ed that Mother also willfully aba nd oned the children bec ause in

the four months prior to the juvenile court suspending her visitation with the child ren, she had six scheduled visits, of which she canceled two, did not show for one and wa s thirty minutes la

te for he r last scheduled visit. Also the petition alleged that Mother had not paid any child supp ort.

The next ground for termination alleged by DCS was that, under Tennessee Code Annotated § 36-1-113(g)(3)(A)(i-iii), the c hildren had beenremoved from Mothe

r for mor e than six mon

ths; the conditions which led to the removal of the children or other conditions which would cause the children to be subject to furt her abus e and whi ch preve nted the r eturn of the child ren to Mo t her persiste d; there

was little likelihood that these conditions would be remedied at an early date; and the continuation of the legalparent a nd child relationship greatly

diminshed the children’s chances of early integration into a stable and permanent home.-4-

DCS also alleged that under T.C.A. § 36-1-113(g)(2), Mother had failed to follow the foster

care plan statement of responsibilities and that those responsibilities were re asonable and rela ted to remedy ing the c onditions w

hich nec essitate d foster

care pl acemen

t.

DCS further alleged that

terminat ion of par ental rig hts was in t

he best interest of the children under T.C.A. § 36-1-119(i)(1-9). The petition stated:

[T]he Respondents . . . have failed to m ake such an adjustment of circ umstance s, conduct o r conditio ns as to ma

ke it safe and in the

childre n’s bes t interest to be in either of their homes; that Respondents have failed to effect a lasting adjustmen

t after r easonab le efforts by a

vailable social services for such duration of time, that lasting adjustment does not rea so na bl y a ppear possible; that the Responde nts have not maintaine d regular visita tion or o ther contact with the children; that there is no meaningful relationship established between the parents and the ch ildren ; that the Court must consider the effect of change of caretakers and physical environment

on the children’s emotional, psyc hological, and medical condition s; that the mother has refused to leave an indicated sexual abuse pe rpetrator and the gir

ls . . . both c ontinue to

express fear of him, and of living in their mother’s homewith him there, and tha t she has re fused to leave him for any length of time; that the mother co ntinues to rel y on the perp etrator

. . . her f ormer hu sband, with whomshe now r

esides, f or her ho me and liv elihood, a nd that suc

h home is no t a healthy and safe environment f

or the mino

r childre n; that the

mother’srefusa

l to admit to the sexual abuse, or bel ie ve he r c hi ld re n, or su pp or t t he m e ff ec ti ve ly, precludes her f

rom provi ding a safe and stable home, car e and supervision for the children, and that t

he Respondents hav e failed to pay child support

consiste nt with the child support guidelines promulgated by the Department . . . .

At the hear ing on thi s motion, he

ld Febru ary

21, 2001, t

he child ren’s father did not contest the termination, and DCS’s p etition wa s grant ed as to him. Mother

did conte st the ter

mination a

nd a full hearing was held . DCS a nd the cour

t appointe d guar

dian ad litem suppor

ted termination. D CS presented six witnesse s. DCS’ first witness, M.C. Love, a family therapist at LeBonhe

ur Center for Children and pare

nts, testif ied that s he h ad been seeing A.L .C. since 1995 and L.J.C. since September

of 1996. M s. Lov e testif ied that the i ntial diagnosis of L.J.C. was sexual abuse and neglect, and that phys ical abu se was also revealed in the course of trea tment. The initial diagno sis of A.L.C showed

sexual abuse and neglect. Ms. L ove testified that the girls indicated that Boy friend

was the perp etrator

of the se xual abuse

on them. She further testified while the girls had made progre ss in recovering from the sexual abus e, that the lack of permane ncy was cau sing pro

blems. As to the girls current home, Ms. Love testified that the girls wer e well adjusted, that they

wished
to stay in their curr

ent home, and that t

heir fos ter par

ents wan ted to ado

pt the gi rls, and t hat this would provide needed stability. Ms. L ove’s opinion of Boyfriend was that the children should not
return to any home wher

e he was living and that he should not beallowed even supervised visitation withthem. Lastly , she testified that the girls call Mother by her first name most of the time, andcall their foster parents “Mom and Dad.”-5-

DCS next calle d Gary

Smithson, a

license d psy cholog ical examiner at B aptist Hosp ital in Union City who was trea

ting the you ngest child, J.R.C., a

nd had be en doing

so for ap proximatel

y four mont hs bef ore th e heari ng. Mr. Smithson testified that J.R.C. suffers from “major depression,

recurr ent, w ithout psychotic feature s, and also oppositional defiant disorder.” Mr. Smithson testified that J.R.C. had expe

rience d problem s at home minding his fost er mother and at school including being suspended, put in detention, and being kicked off of his bus. Mr. Smithson, however, testified that he had seen some progress and that he would like to continue seeing J.R.C. Mr. Smithson testified that

J.R.C.’s current foster mother was providing J.R.C. with a “good” environment. Mr. Smithson saw “every

reason not to disrupt that” and that a disruption “would be catastrophic for him.” Mr. Smithson testified that J.R.C. does not reme mber his mother and that the last contact had been a brief one approximately four yea rs previously.

Next, DCS called Rosemary Nola nd, team leader of the Tipton County off ice of the Departm e nt of Child

ren’s Services. Ms. Noland testified about the history of DCS’ involvement with the children. Ms. Noland also testified as to Mother’s progress in meeting the requ irements of the perm anency

plan put in

place when DCS de cided to c hange its goal from reu nificati on t o adoption. Ms. Nolan

testifie d that des pite somew hat spora dic attendance at

counseling sessions, that in January of 1996, Mother had c ompleted her parenti ng clas ses. Mothe r was mak ing go od prog

ress in meeting

the permanency

plan go als and th at DCS had recommended unsupervised visitation during the day with the children. Mothe r had presented documents to the Foster Care Revie w Board the previousS eptembe r purportedly pr oving that her and Boy

friend were no longer tog ether. Ho we ve r, in Ja nu ar y, DCS beca me awar e of Mothe

r’s ong oing re

lationship withBoy friend. DCS also became aware of her subsequent marriage to Boy friend and at this po int decided that reunification was no longer an option because the perpetrator of sexual abuse of the da ughters was living in the home. Ms. Ne lson also testified as to the number of visits that Mother had with the childre n. Ms. Nelson testified that from January of 1997 until Mothers’ visitation was suspended
at the end of July, Mother had fiftee n scheduled visits. One visit was canceled because of snow and ice, and of the other fourteen, Mother canc eled or misseda total of five visits. Mother was fifteen minutes late on a

nother oc casion a

nd th irty mi nutes late

on her la st visit on July

22, 1997. M s. Nelson testified that Mother had thirteen different known addresse s since the children were placed in State ca

re. Ms. Nelson concluded that in her opinion Mother had not made any meaningful change in her life since DCS beg an working with her.

DCS next called Teresa Harris, the children’s ca se manager at DCS. Ms. Harris testified that she had been assigned to the case sometime in 1999. She had visited Mother’s home on January 12, 2001. Moth er inf ormed her th at fou r peop le were livi ng in the home - Mother, Mother and Boyfr iend’s daughter, Mother’s sister and Mother’ s sister’ s husband . Mother a lso told Ms. H arris that she had started a job that

very day . Ms. Harris related that when asked if Boy friendwas living in the home, Mothe r stated tha t he was n ot and tha

t her atto rney had aske d that the

y se parate in November of 2000.

DeborahHudson, f

oster moth

er of L .J.C. and A. L.C. w as DCS’ ne xt witness. Ms. Hudson testified that

A.L.C. had lived

in her hom

e for al most seve n ye ars and L .J.C. had be en there for six-6-

ye ars. Ms. Hudson testified that she loved the girls, they appeared to love her, and that she and her husband wished to adopt them.

DCS closed itsproof by

calling Kay Ellis, in whose home J.R.C. had been living for about

a year. Ms. Ellis testified that J.R.C. was a very challenging child who had a wide range o f behavioral problems. She further testified that she hoped that J.R.C. could stay with her as long as possible but that she did not feel she could adopt him because, as she stated, “I ’m older and . . . . I

wo uldn’tphysically

be able to go through the problems that [J.R.C.] has and see hi m throug h it. ” Ms. Ellis testified that her home is a therapeutic foster ho me and that she goes to monthly classes and takes oth

er steps to maintai

n this clas sificati o n. J.R. C., in Ms. Ellis’ opinion, had shown improvement in the thirteen months at her house as a result of the stability he experienced. I t was also Ms. Ellis’ opinion that J.R.C. requires stability and that “lots” of change w ould notbe good for him.

Mother

began her proof by taking

the witness stand. Mother testified that she had been living in a house for about four months with her daughter, sister, a nd sister’s husband. She testified that she had divorced Boy

friendabout a y

ear bef ore, and that he do es come o ver to her house every other weekend for supervised visitation with his daughter. She testified that the supervised visitation was

an agreement reached because she f e ared the possibility that her da ughter would be snatched by Boyfr iend because her sister had been snatche d in similar circu mstances when they were y ounger and that her

previoushusband h ad tried to snatch her other children. She testified that she had been unable to visit her

childre n during the time be

tween 19 97 and 200 0 while her appeal of

DCS’ change of goals f rom reun ificatio n to ad opti on was pendi ng. Mot her tes tifi ed tha t she w as seei ng a counselor and had been doing so since October, but that she had not seen a c ounselor

prior to that since 1996. Mother testified that since 1996 that she had never lived in housing unsuitable for her children and that during that period DCS had never

expressed any conc erns about her homes. She acknowl e dged

that she h ad been

told by DCS prior t

o the filin g of the

petition to

termi nate he r parental rights that Boyfriend was not to live in her home and was not to be around L .J.C. and A. L.C. According to Mother, Boyf riend was currently

living in Ripley, Tennessee with his mother. Mother testified th at she wa s currently w orking two jobs -- one at a nursing home, and the other with a janitorial service apparently owned by her stepmother. She testified that she had not been working at the nursing home long and that she had been working at the janitorial service since the summer of the previous ye ar.

On cross examination by DCS, Mother confirmed living at nine d ifferent addresses since 1994. Mother stated that she was working thirty hours a week at the nursing home and approxima

tely fifteen or twenty

at the jan itoria l service. Mother testified that her income for the previous year w as $2500 to $3000 notincluding $400 per month in ch

ildsupport paid by Boy

friend. Mother stated tha

t Boy friend p aid her c

hild suppor

t and occ asionally

paid ot he r b il ls . S pe ci fi ca ll y, Mother stated tha

t Boy friend s ometime s paid he r car note, and had done so the previous month. Mother stated that since their divorce she had been see ing Boy friend and that he had bee

n living with her “off and on.” Mother testified that, currently , Boyfr iend “never” spends the night at her home
, and that she had not spent the night with him since the previous November. Mother said that the last-7-

time she had talked with Boyf riend was a week before the he aring, but that she did not see him at times other than those involving his visitat ion with their daughter. Mother testified that she did not plan on resuming her relationship with Boy friend and had not

terminated the relation ship beca use of the curr ent cour t procee dings. Mother sta ted that sh

e had ter minated th

e relati onship because she

was thinking of her children, loved her children, and w a nted them ho me. Mother stated that she “h on es tl y” did not know whether Boy friend ha d molested her daughter because he r daughter had named“so many people” as the perpetrator. When as ked why she did not stop seeing Boyfr iend, Mother testified that the reason was their daughter. Mothe r testified that she had offe

red to pa y child support to social w orker A llys on Poy

nter but th at she wa s told that t he childr en were fine and to worry about herself. When as ke d w ha t s he ha d o ff er ed to pa y, Mother said “any thing they wa

nted

me to pay.” Mother

testified that she was the author of a flyer be ing circulated that stated “Has the Department

of Children’s Services removed your children for no reason? They did mine.” Mother testified that she believed what she said in the f lye r–that DC S had removed her children for no

reason. Mother sta

ted that sh

e believ ed this be cause sh e felt she hadperformed every

task required by D CS in cl ud in g d iv or ci ng Bo yfr ie nd , b ut th at he r c hi ld re n w er e s ti ll ta ke n a wa y.

Mother put on one other witness, her y ounger sister, Tina Busby . Mrs. Busby testified that she had lived with her sister for the pre vious two or three ye ars. She stated that Mother had been working and, as far

as she knew, going to counseling se ssions during the time she had been living withher. She testif

ied that B oyf

riend wa s not living

in their ho me and tha

t when he came over for “a cou ple of hours ” visitation with his daughter, the Boy friend and his daughter were ne ver left alone. On c ros s examinati on, Mrs. B usby testifie d that Bo yf

riend ha d not spent

the nigh t with Mother for more than a y ear.

The trial judge ruled from the bench that Mother’s pa rental rights should be terminated and later entered a written order reflecting this ruling on March 29, 2001. The trial cou rt fo und that Mother wilfully abandoned the c

hildren. The court found

that Mother’s visitation amounted to more than token visitation, but that Mother did not pay any child support or other support in-kind for the children. The court stated that “the l aw does require the parent to tender some support and make

some attempt

to provide for the welfare of the children . . . a nd that the parent

cannot sit back and wait for a Cou rt Order to require her to pay .” The trial judge found “that the evidence is clear and convincing that [Mother] has willfully abandoned said children . . . with in the meaning of the existing laws of th

e State of Tennessee in that she has willfully failedto contribute to the support of said children.” The rema ining por tions of the

trial cou rt’s orde r pertine nt to this ap

peal re ad as follows:

[F]a ilure to follow the Permancy Plan a nd the persistence of conditions alleged as aternate grounds . .

. were proven by clear and convincing evidence by the Petitioner. The Court

finds tha t [Mother’ s] main

problem is [Boyfriend]. The Court finds that [Mother] was making progress and that the State of Tennessee was

wo rking toward unsupervi sed visita tion and ul

timately , reunif

ication, when it

wa s discovered

that [Mothe

r] continued to maintain a relation ship with

[Boyfriend]. The Courtfinds that [Boyfriend] is named as a perpetrator of sexual abuse on the minor-8-

daught ers, butthat [Mothe

r] not only

resumed her rel ationship

with him after he had been named as a

perpre trator, but also mar

ried him. T

he Court f

inds that w

hen it ordered visitation between [Mother] and the minor children cease, that

the Court had

no choice given the subterfu ges tha t Ms. Stewart employed in order to resume her relation ship with [Boyfriend]. The Court finds that [Mother] chose [Boyfriend] over reunification with her children. The Court finds and believes that [Boyf riend] is still a part of [Mother’s] life and that she had not ceased her relationship with him even how. The Court believes that this relationship thatshe has w ith him is a persistent condition that has not been remedied nor is it likely to be re medied in the future. 3. The Court further finds that [DCS] required permanency in l i ving

arra ngemen ts and that [Mother] has moved on at least thirteen (13) different occasions since 1994, that she has not established a per manent or semi-permanent living arrangement, and that this also constitutes a persistent condition that has not been remedied nor is likely to be remedied in the foreseeable future

. 4. The Court finds that the girl’s [s ic] counse lor, M.C. Love , believe d that it would be detri menta l to retur n the chil dren to [Mo ther] and that Ms. L

ove was a credibl e witness. T

he Court f

urther f inds th at G ary

Smithson ad

vocated agains t

remov i ng the child

[J.R.C.] from hispresent home, and

that Gar y Smithson was a credibl e witness

. 5. Th e C ou rt fu rt he r s ta te s t ha t, up on re qu es t o f t he at to rn eys to interview the minor children, [A.L.C.] and

[L.J.C.], a s to their

choice o f reside

nce, tha t he would
nothave done this but for the fact that the attorney s for the mother and the Guardian ad Litem and [DCS], requested this. The C ourt find s that the g irls did testif

y to him that they did not

want to be with their

mother, th

ey did not wa

nt to move f

rom their present homes, and they did not even know what their mother looked like. Further, that the girls call their mother [Mother] and their foster parents Mom and Dad. 6. It further appears to the Court based upon all of the proof, that all of the children need permancy

and finality and that y

ears and y ears have gone

by, and, in this case, said children have been in the foster care sy stem . . . since 1994. Further, that, basedupon the counselor’s recommendations, and the Court’s observations, the children need stability and this cannot be a cheived in the home of [ Mother]. The Courtfinds tha

t [J.R.C.] will

need special help for y

ears to come and that he cannot obtain this from the home of his mother . . . . The Court finds that it would be devastating to return any of t he childr

en to the mother. The Court finds that the children need to be freed for adoption.

. . . . 8. The Court finds that, pursuant to Tennessee Code Annotated § 36-1-113(g)(3)(A) (i-iii), the childre n h ave bee

n remove d from the

Responde

nt, [Mother

], for more

than six (6) months and

the condi tions which led to re

moval or o ther conditions whi ch in all

reasona ble probabil

ity, would

cause the children

to be subjected to further abuse or neglect and which therefore prevent the c hildren ’s return to the care of the Respondent

. . . still pe

rsist; that there is likelihood [sic] that these conditions will be-9-

remedied at an early

date so the children can be return ed to [M other] in the near future; that continuation of the legal parent and child relationship greatly diminishes the children’s chances of early integration into a stable and permanent home. 9. The C ourt finds that pursuant to [T.C.A.] § 36-1-113(g)(2), [Mother] has shown substantial noncompliance withthe Foste r Care Pla n Stateme nt of Respo nsibilities
, (also calledthe Permanency Plan and the Plan of Care), which were rea sonable and

were re lated to remedying

the conditions which necessitated foster care placeme nt. 10. The Court finds that

in terms of best interest, pursuant to [T.C.A.] § 36-1-113(I)(1-9), the Respondent . . . has failed to make an adjustment of circumstances, conduct or conditions so as to make it safe and in the children’s best interest to be in her home; that she has failed to effect

a lasting adjustment after reasonable e fforts by availab le social service s agencies for such dura

tion of time

that lasti ng adju st ment does not

reasona bly appear possible; that there is no meani ngfu l relationship established between[Mother] and the children; that a change of care takers and phy sical environment o n the children’s emotional, psyc hological and medical conditions would be detrimental to the children; that the mother does not have a healthy and safe environment

for the minor childr en be cause of a continu ed rela

tionship with [Boy frie nd]; and she has failed to pay child support consistent with the child support guidelines.

Ms. Stewart t

imely filed an appeal t o this cour

t and pre sents the following issues on the briefs of the parties for our review: I. Th at the trial court erred in f inding th at the moth

er had w illfully

abandoned the children. II. That

the trial court erred in findingthat the mother failed to follow the Permanency Plan. III. That the trial court erred in finding that persistent conditions have not be remedied nor will be remedied in the foreseeable future

. IV. That

the trial court erred in finding that it is in the best interest of the children that the mother’s parental rights be terminated.

Standard of Review

Pursu ant to Tennessee Code Annotated section 36-1-113(c)( 1)(2) (2001), termination of parental rights must be based on a finding by clear and convinci n g evidence that grounds for termination exist, and that such termination is in the best inter est of the child. Sinc e this ca se was tried by the trial court sitting without a jury , we revi ew the case d e novo upon the record with a presumption of correctness of the findings of fa ct by the trial cour

t. Unless the evide nce preponderates agains t the findings, we must affirm, absent error of law. T.R.A.P. 13(d). "Where the trial judge has seen and

heard the witnesses, especially if issues of credibility and we ight to be given oral testi mon y are involved, c onsiderable deference must be ac corded those circumstances on review." McCaleb v. Saturn , 910 S.W.2 d 412, 415 (T enn. 1 995) ( citi ng Townsend v . State , 826 S.W.2d 434, 437 (Tenn. 1992)).-10- Law and Analysis It is a well established premise that "[a] parent has a fundamental right to the care, custody and control o f his or her child. " Dep't. of Children's Servs. v. Wiley , 19 99 T enn . Ap p. LE XIS 773, No. 03A01 -9903 -JV0 0091, 1999 W L 106872 6, at * 3 (Ten n. Ct . App. Nov. 2 4, 199 9) (ci ting Stanley

v. Illinois , 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)). A parent's right to the care
, cu st od y, and contr

ol of his or her child

is not absolute and may be ter minated if justified by clear and convincing evidence under the applicable statute. See In re C. W.W., N. W.W., Z. W.W., & A.L .W. , 37 S. W .3d 467, 4 73 (Te nn. C t. App . 2000 ) (cit ing Wiley , 1999Tenn . App LE XI S 773, 1999 W

L 1068726, at *3 ( citi ng Santosky v. Kramer , 455 U.S. 745, 769, 102 S. Ct. 138 8, 71 L. Ed. 2d 599 (1982))). As stated, termination of parental rights must be based on a finding , by clear and convincing evidence, that the grounds for termination of rights have been established and that termination of parental rights is in the best interest of the child. T.C.A. § 36-1-1 13(c)( 1) and (2). Clear and co nvin cing ev idenc e has b een defined a s evid ence wh ich "'e liminates an y serious or substantial doubt concerning the corr ectnessof the conclusio n to be drawn fr om the evid ence.'" In the Matter of: C.D.B., S.S.B., & S.E.B. , 37 S.W.3d 925, 9 27 (Te nn. C t. App . 2000 ) (cit ing O'Daniel

v. Messier , 905 S.W.2d 182, 186 ( Tenn. Ct. A p. 1995)) . In a

ddition, in

order to terminate parental rights there mu st be a sho wing tha t the par ent is unf it or that s ubstantia

l harm to th

e child will result if the parental rights are not terminated. In Re Swanson , 2 S.W.3d 180, 188 (Tenn. 1999) (citations omitted). Tennessee Code Annotated section 36-1-113(g) (2001) sets for th the legal grounds upon which termination of an individual's parental rights may be base d. "The existence of any one of the statutory bases will support a termination of parental rights." In re C.W.W ., N.W.W ., Z.W.W ., & A.L .W. , 37 S.W.3d 467, 473 (Tenn. Ct. App. 2000) (citations omitted).

Mother first contends that the trial court erred in finding that she had willfully abandoned the children. Moth er argue s that the tr ial co urt’s reason for th is rul ing, namely that Mother did not pay any child support while her children were in State c ustody , was er

roneous b ecause

she was indigent. Mother ac kn ow le dg es th at th er e h as be en no sp ec if ic fi nd in g b y a

court that she was indigent, but points to several instances in the record where s he sugg ests evid ence of her indig ence exis ts including her inta

ke sheet at the L eBonhe ur Center for Childr

en in Crisi s in February

of 1995 which listed her inco me as consisting of AFDC and food stamps. Additionally, Mother points out that she

was appointed counsel at the various stages of the proceedings in juvenile court. Mother arg ues that since there was no specifi c finding by the juvenile court that she had the ability to support her children and that her failure to do s o was willf ul, the trial court was in error to base a finding of abandonment

on Mother’s failure to provide child support. Mother points to O’Daniel v. Messier
, 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995) for suppo rt. In that case, the cour t stated that “a parent’s failure to support a child will notamount to a bandonme

nt when the ‘pare

nt is financially unable to render financial support.’” Id.

DCS counter s that Mother testified that she had worked most of the time that her children

were in State custody and that at the time of the termination hearing she was working two jobs. DCS points to the case of State v. Manier , No. 01A01-9703-JV-00116, 1997 WL 675209 (Tenn. Ct. App. Oct. 31, 1997), perm. to appeal denied March 2, 1998, for support. In that c ase, this Court stated-11-

“[w]e dare say that the support of one’s children should not be conditioned upon whether

one has been placed under a court order to do so.” Id. at * 5. As we have previously

stated:
Under the provisions of section 36-1- 113(g)(1) of the Tennessee Code, termination of parental rights may

be based upon a

parent's abandonment of his or her child. See Tenn. Code Ann. § 36-1- 113(g)(1) (2001). Section 36-1-102 definesabandon ment, in pertine nt part, a s: (1)(A) (i) Fo r a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the pare nt(s) or guard ian(s) of the child who is the subject of the petition for termination of parental rights or adopti on, that the paren t(s) or g uardian (s) either h ave willf ully failed to visit

or have willfully failed

to supportor make reasonable pay ments toward the support of the ch ild; (B) For pu rposes of this sub division (1 ), "toke n support" means tha

t the suppo

rt, under the circumstance s of the in dividual c ase, is i nsign ifica nt giv en the parent 's
means; (C) For pur

poses of t his subdivision (1), "token visitation" means that the visitation, under the circumstance s of the individual case, constitutes nothing more than perfunctory

visitation or visitation of such an infrequent nature or of such s hort duration as to mere

ly e stablish mi nimal or in substantia l contac t with the c

hild; (D) For pu rposes of

this subdivision (1), "willfully f ailed to su

pport" o r "willf ully failedto make r

easonab le pay

ments towa

rd such child's su

pport" me ans that, for a period of four (

4) conse cutive mo nths, no mo neta ry support was pa

id or that the amount of

support pa

id is token

support; (E) For purposes of this subdivision (1), "willfully failed to visit" means the willful failure, for a period of four (4) c onsecutive months, to visit or engage in more than token visitation. Tenn.Code Ann. § 36-1-102(1)(A)(E) (2001). In In re Swanson, 2 S.W.3d 180 (Tenn.1999), the Tennessee Sup reme Court found the above de

finit ions of "willfully failed to support" and "willfully fa iled to make

reasona ble payments toward suc

h child's support" to be unconstitut ional because they "in effect create an irre

buttable presumption t hat the failure to provide monetary support for th e four m onth s prece ding t he pe tition to te rminate p arenta

l rights constitutes abandonment, irrespective of whether that fa ilure was intentio nal." Id. at 188. The Swanson court held that the definitio n as it existe d under th e prior s tatute should be applied until the legislature amends the statute. See id. at

189. "Under the prior statute, the definition of 'abandoned child'containe d an elem ent of inte

nt both in failures to visit and failures to support ." Id. at 189 n. 14 (citing Tenn.Code Ann. § 36-1-102(1)(A)(i) (Supp.1994)).

In re D.L.B. , No. W2001-02245-COA-R3-CV, 2002 WL 183 8147, at *5 ( Tenn. Ct. App. Aug. 6, 2002).-12-

It is uncontroverted

that Mother did not pay any child support. Mother

testified that during the y ear of 2000, she had b etween

$2500 and

$3000 in income, a

figure that did no t include

$400 a mon

th in child support from Boyf riend for his and Mother’s daughter. It appears that Mother was indeed indigen t. Furthermore, DCS did not present any proof to the trial court

that showed Mother was able
to financially support

her chil dren in a

ny w ay and did not do so. The above quoted statute contains

an element o f intent. We cannot say on the r ecord before

us whether Mother intended not to pay any child support or

whether Mother sim

ply found it imp ossible to p ay any child supp ort. Thus, we find

a lack of clear and convincing e vidence on this issue and vaca te this po rtion of the trial judge’s ruling.

Next, Mother contends that the trial court erred in finding that Mother failed to f

ollow the permanency

plan. Mother contends that she substantially complied with the permanency

plan, i.e. she had “completed parenting classes, attended counseling and there was never any

proof presented that she h ad not obta

ined suita ble housin g which

would have been safe, clean, and appropriate for the childre

n.” DCS ag

rees tha t Mother w as requi

red to ha ve “su bs ta nt ia ll y complied” with the permanency

plan, but contends that, as the trial court found, Mother did not do so.

The record

before us shows th at the pe

rmanency pl an enter

ed for A .L.C. and J.R.C. in A ugust of 1994 required

Mother to meet a number of responsibilities including the following: Establish a

means of financial supp ort throu gh emplo yme nt; obtain a

psy cholog ical eva

luati on an d follow throu gh on its rec ommendat ions; progre ss and ben

efit from treatment as evidenced by maintaining stability for six months; pa

rticipat e and co mplete

parenting skills training; keep all appointments or cancel and reschedule and be responsible for tra nsportation; apply for public housing or locate other suitable housing ; advise D CS of any chang es in

status or location before a move; home established
must be safe, clean, have proper heating, plumbing, water, and bathroom facilitie s; provide

a stable homefor children. The Plan of Care for L.J.C. established in 1995 reflects the sig nificant changes required by the reve

lation that Boyfrie

nd had sexually abused A.L .C. Mother was add itionall y required to, among

other requireme

nts: live independently fr

om the alleged sexual perpetrator, work in counseling regarding

her role in the abuse and neglect, demonstrate a willingness to protectthe children from future abuse, overcome her de nial and acknowledge the abuse, a ccept the role she may have played in the abuse . A later plan of care dated September of 1997 shows a requirement that Mo ther attend lo ng term intensive

psy chother

apy “with a f

ocus on le arning

to develo

p truly supportive relationship so that she will not have to rely on men w ho are a potential threat to her children.”

Our Supreme Court has held that the permanency plan requirements must be “reasonable and related to remedying

the conditions which necessitate fost er care placement.” In re Valentine , 79 S.W .2d 539, 547 (Tenn. 2002). In the ca se sub judice , the trial court specifica lly f ound th e require ments of the permanency

plan to be “reasonable” and that the requ irements“ were

related to remedy in g the con ditions which necessitated foster care placeme nt.” We do not find that the evidence preponderates ag ainst the trial court’s ruling on this matter.-13-

As to the issue of substantial noncompli ance, a s it is a que stion of la w, we re view it de novo withno presumption of correctness. In re Valentine
, 79 S.W.2d at 548. The In re Valentine court found that “substantial” means “of real worth and importance ,” Id. , and, thu s, “the r eal wort h and importance of noncompliance shoul d be measured by both the degree of noncompliance a nd the weight assigned to t

hat requiremen t.” Id. Our review of the record shows that, af ter a less than stellar beginning, Mother appeare d to be doing quite well in meeting the requirements of the plan and had p rogre ssed to the

point whe

re DCS wanted M other and the chil dren tohave unsupervised day visits by the beginning

of 1996. Her e, howeve r, things took a drastic turn for the worst. The trial court foundthat Mother used “subterfuges” to resume her relationship with Boyfr

iend during this time in contradiction to the stated goal of protecting the c hildren fro m an alleged sexual perpetrator, and when finally confronted

by D CS, Mother

admitted t

o being five months pregnant withBoyfr

iend’s child. After an ultimatum was given to Mother, either the children or Boy

friend, Mother married Boy friend. The tria

l court fo

und that Mo ther’s r

elatio nsh ip with Boyfriend continued even at the time of the hearing in Fe bruary of 2001. This finding is one that we must give “conside rable deference” being

that it is based, in large part, on the credibility of the witnesse s before the tria l judg e. We

do not find that the evidence preponderates ag ainst the trial court’s finding that Mother did not meet this goal of the permanency plan w hich wa s stated “[t]he mother does not protect the child from

sexual abuse in that: children are in contact with alleged sexual perpe trator.” The per manency plan also require d a stable

homefor the children. The trial judge made a finding of fact that Mother had

moved thir

teen time s betwee

n 1994 and

the time of

the hear ing, an d, thus, had not provid

ed a stab le home. M other ac knowledg ed living

at nin e differ ent addresses. The evidence also doesnot prepo nderate agains t this finding of the trial court. Additionally , Mother testified that she was attending counseling, at the time of the hearing in February

2001 and had been doing so for approximately four months, but that she had not attended an y co unseling before that since 1996. The plan of care clearly called for her to attend such counseling so that she w ould not rely on men wh o were a danger to her children. We find that this was a reasonable require ment related to remedy

ing the conditions which necessitated foster care placement. Mother, by her own admission, was not in compliance with this requirement. Therefore, for these reasons, we find clear and convincing evidence

of Mother’s substantial noncompliance with the permanency plan, andwe affirm the trial court’s finding of termination of Mother’ s parental rights on this ground.

Mother next contends that the trial court erred in finding that persistent conditions have not been remedied nor will be remedied in the foreseeable future . Mother argues that her lack of s uitable housing was the reason that the children were placed into DCS custody and that h er rela tionship with Boyfr iend is what prevented their early return. Mother argues that at the time of the hearing, she had divorced Boy

friend and that he was no longer re siding with her.

This ground

for te rmination of p arental rights found by the trial court is set forth in the Tenness ee Code a

t section 3 6-1-113( g)(3) (A) and reads a s follows:

The child has be en removed from the home of the parent or g uardian by or

der of a court for a period of six (6) months and:-14-

(i) The conditions which led to the child'sremoval or other condition s which in a

ll

reasona ble probability would cau se th e child to be subjected to further abuse or neg lect and which, therefore, prevent the c hild's safe return to the c are of t h e parent( s) or gu ardian( s), still pe rsist; (ii) There is little likel ihoo d that the se condit ions will be

remedie d at an ea

rly date

so that the ch ild can be safely returned to the parent(s) or gua rdian(s) in the near future; and (iii) The cont

inuation o f the par

ent or g uardian and child

relatio nshi p grea

tly diminishes the child's chances of early integrationinto a safe, stable and permanent home.

We will take each of the requirements of the ab ove statute in turn. It is uncontroverted that the children had been in the care of the state for more than six years at the

time of the hearing, far longe r than the six month requirement of the statute. Under subsection (i), the trial court found that there

were two persistent conditions that would cause the children to be subjected to further abuse or neglect. First, the trial court found that Mother had not terminated her relationship with Boy friend and that this relations hip was a persiste nt conditio n likely

to continu e and to pu

t the child

ren in danger of further abuse

. Second, the trial court found that Mother had moved thirteen times since placing the children in State custody a nd that this lack of

stability was a persistent condition likely
to continue and to put the children in danger of furthe r abuse or neglect. We find

that, on the record before us and th e conside rable de ferenc e we must g

ive to the trial judg e’s rulings wher e witness credibi lity

is involved as in both instances here, t hes e allegations were proved by clear and convincing evidence. The same holds true for subsection (ii) in that the trial court found that it was
notlikely that eithe r of thes e conditi ons would be reme died at a

n early date, and for the same reasons stated under our analy sis of subsection (i) above, we agree with the trial court. Lastly , under subsection (iii), the trial court found that the continuation of the pare nt and chi ld relati onship would great ly diminish the

childre n’s chan ces of e arly

integr ation into a safe, stable, and permanent home. The testi mony and e viden ce cont ained in th e recor d befo re us s how, a gain, t hat th e tria l jud ge was

co rrect in this holding. The girls testified that they wanted to remain with their current foste r parents. Their foster mother testified that she loved the girls and that her and her husband wanted
to adopt th em. The girls have been in this home for more than e ight yea rs and the only thi n g “dimi nish ing” their integration into this safe, stable, and permanent home is the continued parent and child relation ship. J.R.C. is in a therapeutic foster home with a foster mother who is helpf

ul for his many problems, but who testified that she felt her own age would preve nt her from

adopting J.R.C. because she could not physically

handle the challenge he prese nts. Thus, ag ain, the l ack of f inality in this matter is preventing J.R.C . from place ment for adoption into a safe, stable, and permanent home. Having met all three of the statut ory require ments, we find cle ar and c onvincing evidenc e in the record

before us that the

trial judg e was co

rrect in his holding

that Moth er’s pa

rental r ights should be terminated pursuant to Tennessee Code Annotated section 36-1-113( g)(3)(A).

Finally , Mother c ontends th at the tri al court erred i n finding

that it is in

the best interest of the children that Mother’s parental rights be terminate d. Mother argues that clear and c onvincing evidence of grounds for termination have not been established a nd, therefor e, the best inter est-15-

determination was irrelevant. Because we have found tha

t clear a nd convincing ev

idence d oes exist for termination of Mother’s parental rights, this argument is not well taken. Our review of the record, and finding s th ereon, par allel the findings of the trial judge on this issue. These finding s and the basis for them a

re quote d extensive

ly a bove. Thu s, we also find clear and convincing e vidence that the termination of Mother’s parental rights is in the best interest of these c hildren andaffirm

the trial court on this issue.

Conclusion

For the foregoing reasons, we vacate in pa

rt and af fir m in part the judgment of the court below and remand for any neces sa ry proceedings consistent with this opinion. Costs are judged against Appellant Mother for which execution may issue, if necessary

.

___________________________________ ALAN E. HI

GHERS, JUDGE