1 The mothe r did not pe

rfect a n appea l. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE October 17, 2003 Se ssion RDM v. STATE OF

TENNESSEE, D EPARTMENT OF CHILDREN’S SERVIC ES, IN THE MA TTER OF : AGM, A Child Under Eightee n Years o f Age Direct Appeal from the Circuit Court for Roane County No. 12079 Hon. Russell Simmons, Jr., Circuit Judge

FILED NOVEMBER 12, 2003 No. E2003-00330-COA-R3-CV

The Trial Court

terminated parents’ parental rights. The fa ther has appealed. We affirm the Trial Court. Tenn. R. App.P.3 Appe al as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d. H ERSCHEL P ICKENS F RANKS , J. delivered the opinion of the court, in which C HARLES D. S USANO , J R ., J., and D. M ICHAEL S WINEY , J., joined. Spence R. Bruner , Kingst on, Tenne ssee, fo

r Appella nt. Paul G. Summers, Attorney Gene ral and Reporter, and Juan G. Villasenor, Assistant Attorney Gene ral, Nashville, Tennessee, for Appellee.

OPINION The Trial Court severed the parental rights of the parents to AGM at the behest of the Department of Children’s Services (“DCS”). The biological father, RDM, has appealed. 1 BACKGROUND This case originated with a Petition for Tempora ry Custody filed by DCS regarding a minor child, AGM, against her parents. At the time the mother was inc arce r ated, and there was no one left to take care of the child. A Protective Custody Order was enter

on March 24, 1998,-2-

granting custody of

the child to DCS, due to the emergency situation. By Order

dated October 19, 1998, RDM was determined to be the father (since the mother was marr ied to someone else at the time the child was born). He was grante d 4 hours visitation per month at the DCS office pending further hearing. However, a

few months later, the visitation was changed to supervised visitation, and a proviso

was added that if there were “a ny further pr

oblems” or if either parent was arrested, the visitation would be suspended.

The paternal grandmother filed a series of petitions seeking custody of the ch ild, all without success. THE TRIAL

In January 2002, DCS filed a Petition to Ter minate Pa

rental Ri ghts, se

tting fo rth numerous grounds for termination, and that termina tion would b e in the c hild’s be st intere st. Numerous witnesses testified, and the Court found that a ltho ugh neither parent testified, the mother had advised the Court at

a heari ng in Fe

bruary that she h ad resum

ed living withthe father, desp ite injuries he inflicted upon her in Au gust 200 1. The Cou rt found t hat both pa

rents ha d willfully

failed to visit the child, that the child had been removed for more than six months, the conditions leading to removal still persisted, and the father was incompetent to care for the child based upon his mental condition. The Court found that both parents had failed to comply with the Plan of Care, and tha t returning the child to the parents would pose a risk of substantial harm. Further, the Court held that it was in the child’s best interest to terminate parental rights. The evidenc e does no t prepond erate against the Trial Court’s factual determination. Tenn. R. App. P. 13(d). DISCUSSION Th e father raises on appeal whether the re was clear and convincing evide nce t o support the grounds for te rmination , and whe

ther ter mination w as in the c

hild’s be st intere sts? A par ent has a fundamental right to the care , custody, and control of his c h ild

. Stanley v. Illinoi

s , 405 U.S. 645, 92 S. Ct. 1208 (1972). Such right is not abs olute and may be terminated if there is clear and convincing e vidence to justify such

termination under

the appli cable statute, and addit

ionally , the cour

t must find t

hat termi nation is in

the child ’s best int

erest. Santosky v. Kramer , 455 U.S. 745, 102 S. Ct. 138 8 (1982); Tennessee Dept. of Human Services v. Riley , 689 S.W.2d 164 (Tenn. Ct. App. 1984); Tenn. Code Ann. §36-1-113(c).

Term ination of parental rights is appropriate if the re cord contains clear and convincing evidence to support any of the base s found by the trial cour t for termination. See: In re C. W.W. , 37 S.W.3d 467 (Tenn. Ct. App. 2000), and O’Daniel v. Messier , 905 S.W.2d 182 (Tenn. Ct. App. 1995).

In this case, the Trial Court terminated the parental rights based upon the following statutory ground s:-3- 1. abandon

ment; 2. failure to substantially comply with the plan of care; and 3. that

the child had been removed for more than six months, and the conditions requiring removal

still pers isted and

would not li

kely be reme died in

the near future. Ad di ti on al ly, the Court found that there was clear and convincing evidence t

hat terminating the father ’s pare

ntal rig hts was in t

he child’ s best inte

rest. The proof was undisputed that the father had not visited the child since September 2001, and the Petition to Terminate was filed in January 2002. Undisputed proof

also showed that the father could have scheduled visitation with the child, but failed to do so, and he

had neve r paid any child supp ort, altho

ugh he r eceive d disabilit

y be nefits. Moreover, the evidence shows that DCS had attempted to assist the father to make a sui table hom

e for the child, but

instead he persis ted in a c ourse of violent be

havio r toward

th e mother and others, of

a lcoholism, and of suicidal behavior. We affirm the Court’s finding that abandonment

was proved by

clear and convincing evidence . The Court also found, and the proof was undisputed that the father signed off on the plan of care a nd was ma

de awar e of its requireme

nts, buthe failed

to comply with the parenting plan. The evidence plainly supports the Court’s finding on this issue. Fi na ll y, the Trial Court found the child had been removed for more than six months, and that the conditions which led to the removal persisted, and were un likely to be remedied in the near future. The evidence in this regar d established the father

had taken no steps to remedy or change his situation in any meaningful wa y. The Court was pre sented with proof that the foster family was well bonded to the child, and would be willing to adopt he r. Faili ng to ter

minate wo

uld leave the child in the same state that she h ad been in for the last four y ears, with no real hope of improveme

nt. Clearly

it was in the child’s best interests to terminate the parental rights of the father so that the child could be integrated into a safe, stable, a nd permanent home. We affirm

the Judgment of the Trial Court and remand, with the cost of the appeal assesse d to the fa

ther, RDM

.

_________________________ H ERSCHEL P ICKENS F RANKS , J.