# FILED May 26, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT NASHVILLE

_______________________________________________________ ) IN THE MATTER OF: ) Davidson County Juvenile Court M.C.G. ) No. 9719-32119 ) ) C.A. No. 01A01-9809-JV-00461 )

______________________________________________________________________________ From the Juvenile Court of Davidson County at Nashville. Honorable Andrew J. Shookhoff, Judge

Kathleen G. Mor

ris , Nashville, Tennessee Attorney fo

r Petitioner/Appe

llant. Paul G. Summers , Attorney General and Reporter Douglas Earl Dimond

, Assistant Attorney General Attorneys for Respondent/Appellee.

OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) HIGHERS, J. : (Concurs)Christy Gower (Mother) appeals the

trial court’s judgment terminating her parental rights to her minor son, M.C.G. We affirm the trial court’s judgment based on our conclusion that the record contains clear and convincing evidence to support the court’s findings that the Mother had abandoned

M.C.G. and t ha t termination of the Mother’s parent

al rights was in M. C.G.’s best interests.

M.C.G. was born in April 19 96. In January

1997, when M.C. G . was less than one y ear old, t he Mother was arrested for attempting to buy illegal drug s from an undercover police officer. Because M.C.G. was with the Mother at the time of her arrest, the Metro Police Department contacted the Department

of Children’s Serv

ices (DCS). DCS subs

equently fi

led a petition in

which it sought an adjudication that M.C.G. was a dependent and neglected child and asked that M.C.G. be placed in the custody of the Mother’s brother and his wife. See T.C.A. § 37-1-102(b)(12) (1996). Pursuant to a subsequent settlement agreement reached by the pa rties, the trial court entered an order adjudicating M.C.G. to be a dependent and neglected child due primarily to the Mother’s long-term addiction to Dilaudid. The trial court’s or der placedM.C.G. in the joint legal custody of (1) the Mother and (2) the Mother’s brother and his wife, with the latter to have physical custody of M.C.G.

At a May 6, 1997, dispositional hearing, the trial court was informed that the Mother’s bro the r and his wif e had ret urn ed M .C. G. t o th e Mo the r’s care sev eral days prev iou sly. By this time , the Mot her was participating in a methadone treatment program in Bowling Gre en, Ken tuc ky, and she lived in a motel th ere. Based upon the evidence presented at the May 1997 hearing, which included the telephonic

testimony of a counselor at the methadone treatment center in Bowling Green, the trial court entered an order placing M.C.G. in the legal custody of DCS. The trial court’s order indicated that such custody would be “for a very short period of time” and that the court would review the matter “for possible return of custody to the mother on June 5, 1997.”

After the May 1997 dispo sitional hearing, DCS employees did not have any contact withthe Mother again until November 1997. At a hearing held Dece mber 9, 1997, the trial court
was informed that the Mother had contacted Pe

ggy Car ter at DCS. The Moth

er had not asked t

o visit M.C.G., however, and had told Carter that “it would take her

a while to

get herself tog

ether.” In i

ts order entered after

th e he aring, the trial court changed the permanency goal for M.C.G. from theconcurrent goals of “return to parent” and “adoption” to the single goal of “adoption.” By this time, M.C.G.’s father, the Mother’s estranged husband, had surrendered his parental rig hts to M.C.G. Although the permanency goal for M.C.G. had chang ed to adoption, D CS still prepared and discussed a pl

an of care with

the Mother. During this discussion, which took place i n either December 1997 or January 1998, DCS case manager Peggy Carter described to the Mother the tasks that would be

expected of her.

These tasks required the Mother to (1) complete treatment for her drug addict ion, (2) remain drug free, (3) make contact with DCS and visit M.C.G. on a regular basis, (4) maintai

n a known address,

and (5) obtain employment so that she could support M.C.G. Under this arran gement, the Mothe

r was expecte

d to call DCS at the beginning of each week if she wanted to schedule a visit with M.C.G. during that week.

On January 15, 1 998, the Mother att ended her first s

cheduled visit w

ith M .C.G. During the visit, Peggy Carter asked the Mother

to provide a urine sample for a drug screen, but the Mother claimed that she could not urinate because she had a bladder infection.

At a January 28, 1998, hearing attended by the Mother, Peggy Cart

er reported that DCS had prepared a petition to term i nate the Mother’s parental rights. The trial court set the appearance

date for February 11, 1998, and indicated that the Mother’s former attorne y, Kathleen Morris, would be asked to represent the Mother.

On January 29, 1998, the Mother arrived at DCS at about 10:10 a.m. for her second scheduled visit with M.C.G. During this visit, Peggy Carter again asked the Mothe r to provide a urine sample for a drug

sc re en. The Mother agreed but stated that she “couldn’t go right now.” When C arter checked with the Mother about one h

our later, the Mot

her claimed that s

he “still couldn’t go.” About one and

one-half hours after the Mother’s arrival, Carter left the room for about fifteenminutes to discuss another case with a coworker. When Carter returned, the Mother informed her that she had go ne to the bathroom while Carter was gone. The Mother never did provide the requested urine sample.

On February 11, 1998, DCS filed a petition to termina

te the Mother’s pa

rental rights. As grounds for termination, D CS alleged (1) th

at the Mother had a

bandoned M.C.G. pu

rsuant toTennesseeCode Annotated se ctions 36-1-102(1 )(A)(I) a nd (iv) by wi

llfully failing to visit M.C.G. for more than four consecutive months and by fai ling to make any contribution toward M.C.G.’s support, (2) that, pursuant to section 36-1-113(g)(3)(A) , M .C.G. had been removed from the Mother’s home for

more than six months and the conditions which led to his removal still persisted withlittle likelihood tha t th ey would be rem

edied at an early date, and (3) that the Mother substantially

had failed to comp

ly with the sta

te men t of responsibilities in the plan of care for M.C.G. See T.C.A. § 36-1-113(g)(2) (Supp. 1997).

After the termination petition was filed, the Mother began visiting M.C.G. on a more regular basis. The Mother visitedwith M.C.G. on February 19 and on March 2, 12, and 19, 1998. When the Mother arrived at DCS on March 26, 1998, however, she was informed by case mana ger Kelly Windsor that DCS was suspending the Mother’s visitation w ith M.C.G. until after the termination hearing, which was scheduled for April 7, 1998.

On April 22, 1998, aft

er the terminati

on h earing had been continued, DCS filed a motion to suspend the Mother’s visitation with M.C.G. pending the outcome of the termination of parental r ights hearing. When th e Mother opposed t

he motion, the trial

court ordered D

CS to supervise two visits between the Mother and M.C.G. in May 1998. The Mother missed the first May visit because she had difficulty finding the prearranged me eting place. On the second visit, the Mother was able to find M. C.G. and the DCS case manager as signed to superv ise the visit. This would be the last visit between the Mother and M.C.G.

At trial in June 1998, Peggy Ca rter, the DCS case manager for M.C.G., testif

ied that, when she asked the Mother w hy she did

not visit M.C.G. between May 1997 and January 1998, the Mother responded by stating

that she had been in jail and that she “had shit to do.” The Mother also hadnot paid any support for M.C.G. since Carter assumed

responsibility for M.C.G.’s case in June 1997. In Carter’s

o pinion, the Mother had not complied with the plan of care. When the Mother first reappeared, she gave Carter an address on Due West Avenue. Two months before trial, the Mother provided Carter with a different address on Virginia Avenue. Carter testified that the mail she sent to both of these addresses was returned, but she acknowledged

that the Mother ap

peared to be living at

one of the addresses with an elderly man who provided the Mother with a place to livein exc hange for her housekeeping services. Carter took the position that the Mother had not

comple ted treatment for he r drug addiction

and that the Mother

had not visited M.C.G. with sufficient regularity to satisfy the plan of care’s visitationrequirement. Carter acknowledged that the Mother pr obably would be unable to obtain employment, inasmuch as she wa s disabled from injuries she received in a car accident.

The Mother’s counselors at Volunteer Treatment Center in Chattanooga testified by t elephone
. These counselor s indicated that me

thadone treatme

nt was a lifelong

process for most patientsand that the Mother probably would remain on methadone for the rest of her life. Th e Mother’s primary counselor, Shasta Lillard, testified that the Mother had not tested positive for any other drugs since L

illard started co

unseling her. Al

though Lilla

rd agreed tha

t the negative drug
screen s were very

good signs, she

expressed conce

rn that the Mother

was not consistent w

it h he r treatment and that, at times, the Mother even was hurting her own treatment. For ex ample, the Mother admitted to Lillard that she was arrested for DUI in January 1998 after she overdosed on methadone “carry-

outs” she had rec

eived from the Cen

ter. The Mother to

ld Lillard that

she “just wantedto check out ” because she “couldn’t d eal with eve rything. ” The Mother also did not participate

in any support

groups, alt

hough the Center’s staff encouraged patients to do so. The Mother often asked for

special or additional “carry-outs.” I f the Mother’s request was not granted, she responded by not returning to the clinic for a few days or by re

questing a transfer to another clinic.

Counselor Lill ian Lockhart met with the Mother a few times in Lillard’s absence. Lo ckhart last saw the Mother approximately one month prior to trial. At that time, the Mother appeared to be intoxicated or hig

h. Lockhart s

uspected that the

Mother was using

marijuana beca

use the Center did not screen its patients for marijuana and because the

Mother had told

Lockhart about p revious marijuana use. L ockhart convey

ed this suspicion to th

e Mother, but the Mo

ther in siste d that she just “was tired.” When Lockh art d enied the Mother’s request for more “carry- outs,” the Mother became angry

and asked to be tr

ansferred to

another treatme

nt facility i

n middle Tennessee.

When the Mother

testified, she admitted that she did not visit M.C.G. from May 1997 until January 1998. The Mother also admitted that she had not paid any support for M.C.G. sincehe was placed in DCS’ s custody. Th e Mother first cla

imed that she was s

ick with he patitis for almost two months during t

hat time period. She

also testified tha

t she moved to

Chattanooga in May 1997 because she and her husband reconciled and decided to move. The Mother later testified , however, tha t sh e le ft t he N ash vil le a rea i n Ma y 1997 becaus e she learned of the existence of outstanding warrants for her arrest and she was afraid of experiencing methadone withdrawal in jail. The Mother ultimately was arrested on the outstanding wa r rants in October 1997, and she spent about six weeks in jail. When she was released in November 1997, she contacted DCS.

The Mother further admit ted that she was arrested for DUI in January 1998 after overdosing on her methadone “carry-outs.” The Mother spent one or two days in jail, during which time she testedpositive for Valium. The Mother denied using marijuana in the past year. Although her driver ’s license had been revoked, the Mother continued to drive, and she drove to trial in a friend’s car. The Mother testified that she

did not recall ca

nceli ng several visi

ts with M.C.G. in February 1998, and she claimed that she visited with M.C.G. each week of that month. The Mother explained that she missed two days of the April 1998 hearing on DCS’s motion to suspend visitation because she was hurt in a car accident and was mugged.

At the time of trial, the Mother lived on Virginia Avenue in east Nashville with a
seve nty-eight

-year-ol d man named Olan Johns. The Mother served “more or less” as John s ’ housekeeper

in exchange for a place

to live. Although the rental home in which Olan Johns lived
was for sale, Johns testified that he did not believe that the house would sell because the owner was asking too much money for it. Johns agreed that the Mother co uld cont inue to live with him ind efi nit ely, and he testified that M.C.G. could live there, too. Th

e Mother receiv

ed SSI pay

ments of $496 per month. Her methadone treatments co st $85 per week. Nevertheless, the Mother be li evedthat she could support M.C.G. because she knew that there were “agencies that [would] help people like [her].”

At the trial’s conclus ion, t he trial court entered an order terminating the Mother’s parental rights to M.C.G. The trial court first found, by clear and convincing evidence , the existence of all three bases f

or termination ass

erted in DCS’s petition. The court then found, after considering the relevant facto

rs, that termination of the Mother’s parent al rights was in M. C.G.’s best intere sts.On appeal from the trial court’s order terminating her paren tal rights, the Mother presents the following issues for this court’s review:

I. Whether

the Trial Court erred in fi nding that the Department

of Children’s Services proved by clear and convincing evidencethe persistence of conditions w hich led to removal of [M.C.G.] or which wou ld subject [M.C.G.] to further n egl ect w ith little likelihood of early remediation. II. Whether

the Trial Court erred in finding clear and convincing evidence that [the Mother] willfull

y aband oned [M.C.G

.]. III. W hether

the Trial Court erred in finding clear and convincing evidence that [the Mother] failed to follow thefoster care plan of care. IV. Assuming, arguendo, that the Trial Court pro

perly foundclear and convincing evidence of a violation of T. C.A. § 36-1-1 13(g)(3), or of a willful abandonment of [M.C.G.], or of failure to follow the foster care plan of care, whether the Trial Court erred in finding clear and

convincing evid

ence that it is in [M.C. G.’s] best interest for [the Mother’s] parental rights to be terminated.

We begin our analysis with the wel l-e stablished premise

that a parent has

a fundamenta

l rightto the care, custody, and control of his or her child. In re Shipley , No. 03A01-9611-JV-00369, 1997 WL 596281, at *1 (Tenn. App. Sept. 29, 1997) ( citing Stanley v. Illinois , 405 U.S. 645 (1972)). This right, however, is not absolute. A parent’s right to the care,
cus tod y, and control of his or her child may be terminated if clear and convincing evidence justifies such termination under the applica ble st atute. In re Shipley , 1997 WL 596281, at *1 (citing Santosky v. Kramer , 455 U.S. 745 (1982)).

Tennessee’s statute provides that a termination of parental rights may be based upon any of the f

ollowing groun

ds:
(1) Abandonment

by the parent or guardian, as defined in § 36-1-102, has occurred; (2) There has been substantial no nc ompliance by the parent o r gu ardian with the statement of responsibilities in a permanency

plan or a plan of care pursuant to the pr ov isions of title 37, chapter 2, part 4; (3)(A) The chil d has be en removed from the home of theparent or guardian by order of a court for

a period of six (6) months and: (I) The conditions which led to the child’s removal or other conditions which in

all reasonable

probability

would cause

the child to be subjected to further abuse or neglect and which, therefore, prevent the child’s retur

n to the careof the parent(s) or guardian(s), still persist; (ii) There is little likelihood that these conditions w ill be remedied at an early date so that the child ca n be returned to the parent(s) or guardian(s) in the near future; and (iii) The continuation of the parent or guar

dian and child relationship

great ly diminishes the chil d’s chances of early integration into a stable and permanent home.
T.C.A. § 36-1-113(g) (Supp. 1997).

In rev iewing termination decisions, this c ourt has recognized that, under the foregoing statute, the existence of any one of these bases will support a t ermination of par ental rights. Department

of Children’s Servs. v. Darr , No . 03A0 1-9706-JV-00213, 1998 WL 128874, at *3 (Tenn. App. Mar. 24, 1998) ; Department of Human Servs. v. Manier , No. 01A01-9703-JV-00116, 1997 WL 675209, at *5 (Tenn. App. Oct. 31, 1997), perm. app. denied (Tenn. Mar. 2, 1998). In the present case, therefore, we must affirm the trial court’sjudgment terminating the Mother’s parental rights if the record contains clear and convincing evidence to support any one of the thr ee bas es found by the trial court. DCS v. Darr , 1998 WL 128874, at *3; DHS v. Manier , 1997 WL 675209,
a t*5; see also In re Musick , No. 03A01-9708-JV-00368, 1998 WL 136561, at *1 (Tenn. App. Mar. 27, 1998).

This court recently attempted to describe the clear and convinc ing evidence standard, explaining that
Although it does not require as much certainty as the “beyond a reasonable doubt” standard, the “ cle ar and convincing evidence” standard is more exacting than the “preponderance of the evidence” standard. O’

Da niel v. Messier , 905 S.W.2d 182, 188 (Tenn. App. 1995); Brandon v. Wright , 838 S.W.2d 532, 536 (Tenn. App. 1992). In order to be clear and convincing, evidence must eliminate any serious or substantial doubt about the correctness of the conclusions to be drawn from the evidence. Hodges v. S.C. Toof & Co. , 833 S.W.2d 896, 901 n.3 (Tenn. 1992 ); O’Daniel

v. Messier , 905 S.W.2d at 188. Such evidenc

e should produce in the fact-finder’s mind a firmbelief or conviction as to

the truth of the all

egations so

u ght to be esta blished. O’Daniel v. Messier , 905 S.W.2d at 188; Wiltcherv . Bradley , 708 S.W.2d 407, 411 (Tenn. App. 1985). In contrast to the preponderance

of the evidenc e stan dard, clear and convincing evidence should demon strate th at the truth of the f acts asserted is “highly probable” as opposed to merely “more probabl e” tha n not. Lettn er v . Plummer , 559 S.W.2d 785, 787 (Tenn. 1977); Goldsmith v. Roberts , 622 S.W.2d 438, 441 (Tenn. App. 1981); Brandon v. Wright, 838 S.W.2d at 536.
Bingham v. Knipp , No. 02A01-9803-CH-00083, 1999 WL 86985, at *3 (Tenn. App. Feb. 23, 1999).

After carefully reviewing

the evidence presented in this case, we conclude that clear andconvincing evidence supports the trial court’stermination of the Mother’s parent

al rights based upon the court’s finding that the Mother had abandoned M.C.G. As one of the bases for termination, DCS’s petition asserted the ground of abandonment as that term is de fined in Tennessee Code Annotatedsections 36-1-102(1)(A)( i) a nd (iv). The cited code sections contain the following definitions of aba

ndonment:
(1)(A) “Abandonment”

means, for purposes of

terminating the parental or guardi an rights of paren t(s) or guardia

n(s) of a child to that child in orde

r to make that child

available for a

doption, that: (i) For

a period of four (4) consecutive months immediately

preceding the filing of a p roce eding or pleadi

ng to terminate the parental ri ghts of the parent(s) or guardian(s) of the chil d who is the subject of the petition for termination of parental rights o r adop tion, that the parent(s) or guardian(s) either have willfully failed to visit or have willfully failed to support or make reasonable payments toward the support of the child;

. . . . (iv) A parent or guardian is incarcerated at the time of the institutio n of

an action or proceeding to declare a child to be an abandoned

child, or the parent or guardian has been incarcerated dur i ng all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfull

y failed to support or makereasonable pay ments towardthe support of the child for four (4) co nsecutive months immediately preceding such parent’s or guardian’s incarceration, or the parent or guardian has engaged in conduct prior to incarcera tion which exhibits a wanton disregard for the welfare of the child.

T.C.A. § 36-1-102(1)(A) (1996). The legislature has defined “wil

lfully faile

d to visit” as meaning “the willful failure, f

or a period of fou

r (4) consecutiv

e months, to visit

or engage in more

than token1 We note that the Mother began visiting M.C.G. on a more regular basis after DCS filed

its petition to terminate the Mother’s parental rights. We also note, however, that the relevant statute specifically provides that a parent may not repent his or her abandonment by resuming visitation subsequent to the filing of a termination petition. See T.C.A. § 36-1-102(1)(F) (1996). visitation.” T.C.A. § 36-1-102(1)(E) (1996).

In the present case, the evidence was undisputed that the Mother visited M.C.G. only two times in the nine-month period immediately preceding the filing of the termina tio n petition. Although the Mother contacted DCS in November 199

7, she did not attemp

t to schedule visitation withM.C.G. until January 1998. Prior to

the filing of the termination petition on February 11, 1998, the Mother scheduled

visits with

M.C.G. on January

15, 1998, and aga

in on January 2

9, 1998. Thus,
even when she began visiting with M.C.G., the Mother scheduled visits during only two of the four possible weeks in which she could have scheduled visitation prior to the filing of the petition. 1 Under the circumstanc

es of this case, w

e conclude that th

ese visits me

rely consti

tuted “token visitation” on the Mother’s part. See T.C.A. § 36-1-102( 1)(C) (1996) (defining “token visitation”
as “perfunctory visitation or visitation of such an infr equent nature or of such short dura

tion as to merely establish minimal or insubstantial contact with the child”). Acco rdi ngly, we affirm the trial court’s ruling that the Mother abandoned M.C.G. by willfully fa iling to visit him

pursuant to section 36-1-102(1)(A)(i). See In re Adoption o f K ratochvil , No. 03A0 1-9712-CH -00536, 19

98 WL 681334, at **2-4 (Tenn. App. Oct. 2, 1998) (affirming trial court’s order granting D ecember 1996 petition to terminate father’s parental rights based upon finding of abandonment where fa ther visited child five times during

month immediately

preceding filing of petition but did not visit child at a

ll during August, September, or October 1996), perm. app. denied (Tenn. Mar. 8, 1999).

On appeal, the Mothe

r points out that she was incarcerated during a portion of the four-month

period preceding the

filing of the termination petition. The Mother claims that she left the Nashville area in May 1997, when she learned of the existence of outstanding warrants for her arrest, because shefeared that she would experience methadone withdr

awal in jail. The Mo

ther also claims that, when she was released from jail in November 1997, DCS employees thwarted her efforts to visit M.C.G. We will address these contentions in reverse order.

As for the Mother’s

claim that DCS employees thwarted her efforts to visit M.C.G.after

her release fr

om jail, we observe

that this claim

presented a credibility question which the trial court apparently determined adversely to the Mother. At trial, the Mother testified that, when she
was released from ja

il in November 1997 , she tried to call Eureva Elmore and Peggy Carter at DCS. The Mother complained that no one called her back, so she asked a friend, James West, “to see what he could do.” After

West tried to call DC

S “for a couple of

days,fin all y, somebody called him back, a supervisor or somebody.”

In contrast, DCS case manager Pegg y C arter testified that it was she, and not the Mother, who initiated contact wit h th e ot her p art y. After receiving the case file in June 1997, Carter made attempts to locate the Mother. Carter’s efforts did not succeed until late November 1997. On November

21, 1997, Carter

spoke with the Mother’s sister-in-law, who provided Carter with James West’s phone number and suggested that Carter call West. Carter called West’s phone number but didnot get an answe

r. On November 24, 1997, the Mother c alled Carter at D

CS, apparently

in response to Carter’s attempts to contact her.

As our supreme court has explained,

Where the trial judge has seen and heard witnesses , especially where issu es of credibility

and weight of or

al testimony a

re involv ed, o n review considerable de

ference must stil

l b e a ccorded to those circumstances. Humphrey v. David Witherspoon, Inc. , 734 S.W.2d 315 (Tenn. 1987). Where the issue for decision depend s o n the determination of

the credibility of witnesses, the trial court is the b

est judge of the credibility and its findings of credibility ar e e nt itled to great weight. This is true because t he t rial court alone has the opportunity

to obs e rve the appearance and the demeanor of the witnesses. Royal Insuran ce Co. v. Alliance Insurance Co. , 690 S.W.2d 541, 543 (Tenn. App. 1985).
Tenn-Tex Properties v. Brownell-Electro, Inc. , 778 S.W.2d 423, 425-26 (Tenn. 1989).

In the present case

, the trial court d

id not make a specific finding relative to the Mother’s assertion that DCS e mployees th

war ted her efforts

to visit M.C.G. In

announcing its decision at the trial’s conclusion, however, the trial court specifically commented on the Mother’s lack of candor in giving other testimony. According ly, we conclude

that the trial court

had ample justification to rej ect the Mother’s testimony tha

t DCS employee

s hindered her e

fforts to visit2 The record citation provided by the Mother does not appear to support this assertion.
3 Despite the Mother

’s testimony a

s to her continuing

problems with hepa

titis, we note that the Mother als

o testified that she

never had taken

any medica

tion for her hepa

titis because it was “not chronic.” M.C.G.

Moreover, we note that, at tim es, the Mother’s own testimony belied her assertion that DCS employees t

hwarted her ef

forts to visit M.C.G. I

n her brief on ap

peal, the Mother asser

ts that, although she first met with Carter in December 1997, DCS refused to schedule a visit f

or her until January 15, 1998. 2 At trial, however, the Mother test ified that she did n

ot visit with M.C.G. in December

1997, not because she was thwarted from doing so, but because she “had to go see a medical doctor a

couple of times” f

or her hepatitis. 3

As for the Mother’s

assertion that she

left the Nashvill

e area in May 1997 be

cause she feared that she would be arrested on outstanding warrants and w ould experience methadone withdrawal in jail

, this court

previously h

as rejected the

argument that se

lf-created leg

al problems
can excuse a

paren t’s fa ilure to vi sit h is or h er chi ld. In In re Shipley , No. 03A01-9611-JV-00369, 1997 WL 596281 (Tenn. App. Sept. 29, 1997), one of the father’s asserted reasons for not visiting his four children wa

s that he “was on th

e run” from law e

nforcement. This

court expla

ined that , even if true, this reason

is a problem of his ow

n ma king. A s such, it can hard ly serve as

a legal basis for his failure to visit. He could have visited had he chosen to do so; he chose not to.

In re Shipley , 1997 WL 596281, at *4. We believe that this rationale applies equally to the facts of the present case.

Finally, we are cognizant of the fact that the Mother was in jail for a portion of the four-month

period immediately preceding the filing of the termination petition. In such cases, the definition of abandonment set forth in section 36-1-102(1)(A)(iv) applies rather than the definition found in section 36-1-102(1)(A)(i). E ven under this different sta

ndard, however

, we still wouldaffirm the trial c ourt’s finding of

abandonment.

Under subsection (1)(A

)(i), the critic

al time periodfor determining

abandonment is the fou r-month p eriod immediately preceding the filing of the termination petition. See T.C.A. § 36-1-102(1)(A)(i) (1996). In contrast, the critical time

period for determining abandonment under subsection (1)(A)(iv) is the four-month perio

d imm ediately preceding the parent’s incarceration. See T.C.A. § 36-1-102(1)(A)(iv) (1996). In the present case, the Mother did not visit with M.C.G. at all betwe en the Ma

y 1997 disposi

tional hearing a

nd her October 19

97 incarcerati

on. Thus, regardless

of which four-mo

nthperiod is examined in this case, the result is the same. During both of the cri tic al t ime peri ods , th e Mo the r wi llf ull y f ail ed to visit M.C.G. as t

hat phrase is def

ined in the statute. See T.C.A. §§ 36-1-102(1)(D), (E) (1996). I nasmuch as both subsections were c ited in DCS’s termination petitio n and in the trial c

ourt’ s final judgment, w

e adhere to our d

ecision to affirm the trial c

ourt’s finding of

abandonment.

In light of our affirmance of the trial court’s ruling on the issue

of abandonment,

we need not address the Mother’s contention that the trial court also erred in terminating her parental rights based upon the court’s findings that the Mother failed to substantially comply with the plan of car e and tha t the conditions which led to M.C.G.’s removal still persisted with little likelihood that they would be remedied in the near future.

We find it necessary, however, to address the Mother’s final issue whe reby she contends that termination of her parental rights w as not in M.C.G.’s be st interests. I

n order to terminate a parent’s rights to his or her child, the trial court mus

t make two finding

s. The court first must find, by clear and convi

ncing e vidence, that one of the asserted grounds for termination has been established. T.C.A. § 36-1-113(c)(1) (Supp. 1997). Once the court has made thisfinding, the court additionally must find that termination of the p arent’s rights is in the ch ild’s best interes

ts. T.C.A. § 36-1-113(c)(2) (Supp. 1997).

In makin g this best-inter ests determinatio

n, the trial court i

s required to cons

id er , inter alia , the following f actors:(1) Whether the parent or guardian has made such an ad justm ent of circumstance

, conduct, or cond

itions as to make it in the child’s best interest to be in the home of the parent or guardian; (2) Whether

the paren t o r guardian has failed to effec

t a lasting adjustment after reasonable effo rts by available social services agencies for such duration of time that lasting

adjustme nt does n ot reasonably appear possible; (3) Whether

the parent o r gu ardian has maintained regular visitation or other contact with the child; (4) Whethe r a meaningful r elationship has otherwise been established between the parent or guardian and the child; (5) The effect a change of caretakers and phy sical environment

is likely to have on the child’s emotional, psychological and medical condition; (6) Whether

the par ent or guardian, or other person residing with the parent or guardian, has shown brutality , physical, sexual, emotional or psychological abuse, or neglect toward othe r children in the family or household; (7) Whether

the physical environment of the parent ’ s or guardian’s home is healthy and safe, whether t

here is criminal a

ctivity in the home, or wh ether there is such use of alcohol or controlled substances as may render the parent or guardian co

nsistently un

able to care for the child; (8) Whether

the parent’s or guardian’s mental and/or emotional status would be d etrimenta l to the child or prevent the parent or guardian from effectively providing c are and supervision for the child; or (9) Whether

the parent or

guardian has paid child support consistent with the child suppo rt guid elines promulgated by the department pursuant to § 36-5-101.
T.C.A. § 36-1-113(h) (Supp. 1997).

In finding that ter

mination of the Mothe

r’s parental rig

hts was in M.C.G.’s b

est interests, the trial court spe cifically considered factors (1), (2), (3), (4), and (9). The trial court found that the Mother had fa

iled to make such a

n adjustment of cir

cumstances,

conduct, or conditions as to make it in M.C.G.’s best inte

rests to return to the Mother’s home in the foreseeable future; that the Mother had faile

d to effect a las

ting adjustment a

fter reasonabl

e efforts b

y available social services agencies; that the Mother had fai le d to maintain reg ular visitation or o

ther contact with M.C.G.; that

the Mother had fa

iled to establish a m

eaningful rela

tionshipwith M.C.G.; and that the Mother had failed to pay any portion of substitute phy sical care a

nd maintena nce for M.C.G.4 A parent has the duty to support his or her child regardless of whethe r a court order exists requiring the parent to make child support payments. See Department of Human Servs. v. Manier , No. 01A01-9703-JV-00116, 1997 WL 675209, at *5 (Tenn. App. Oct. 31, 1997), perm. app. denied

(Tenn. Mar. 2, 1998). Elsewherein its judgment, the trial court made findings relative to factor (7). The court found that the Mother’s long-term

drug addictionand its associated medical and legal problems had caused the Mother to be absent for a major ity of M.C.G.’s life. The court further found that these extended absences significantly damaged an already weakened relationship between the Mother and M.C.G.

We conclude that the evidence supports the trial court’s findings. Althou gh th e Mother hadmade some p rogress in her treatment for drug addiction, the Mother’s counselors testified that this progress was not consistent and that, at times, the Mother acted in sucha way as to hur t he r tr eat men t. A s re cent ly as Jan uary 1998, t he Mother had been arrested for DUI after overdosing on methadone and had tested positive for Valium while in jail. The counselors suspected, but had no proof, that the Mother still was using marijuana . The Mother faile

d to follow the counselors’ recommendation that she participate in support groups. When the counselors denied her request for more “carry-outs,” the Mother bec ame angry and requested a transfe r to anoth er methadone clinic.

Moreover, as noted by th

e trial court,

the Mother’s drug addiction and resulting legal problemscaused her to beabsent during a large portion of

M.C.G.’s life. The

most recent absence, from May 1997 to January 1998, only could have weakened

the already fragile relationship between the Mother and M.C.G. By the time the Mother reentered M.C.G.’s life in January 1998, M.C.G. knew his foster parents as “Mommy” and “Dad.” When he arrived for schedul ed visits with the Mother, M.C.G. invariably exhibited anxiety at being separated from

his foster paren

ts, but he rarely exhibited any distress at the end of these visits when he was required to leave the Mother.

Fin all y, it was undisputed that the Mother paid no portion of the support for M.C.G. after he was placed

in D CS’ s cu sto dy. 4 In light of the foregoing evidence, we decline to disturb the trial court’s finding that

termination of the Mother’s parental rights was in M.C.G.’s best interests.

The trial court’s judg ment is af firmed, and this cause is remanded for furtherproceedings consiste nt wi th this opinion. Costs of this appeal are taxed to the Mother, for which
exe cut ion may i ssu e ifnece ssa ry.

____________________________________ FARMER

, J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________ HIGHERS, J. (Conc

urs)