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

Briefs J anuary

16, 2002 IN THE MATTER OF: D.D.V., A CHILD UNDER EIGHTEEN (1 8) YEARS OF AGE Appeal from the Juvenile Court for Wilson County

No. 430 Barry Tatum, Judge

No. M2001-02282-COA-R3-JV - Filed F ebruary 14, 2002

The State filed a petition t o termina te parental rights to a four-y ear-old boy . Only the mother contestedthe action. The trial court granted the pe tition, terminat

ing the m other’s parenta

l rights on multiple ground s, includi ng aba

ndonment a

nd failur e to compl

y w ith a plan of care. We reverse as to the mother, because we do not believe any of

the grounds were proven ag ainst her by cle ar and convincing evidence, as is required by statute. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court

Reversed in Part; Affirmed in Part ; and Remanded
B EN H. C ANT RELL , P.J., M.S., delivered the opinion of the court, in which W IL LI AM C. K OCH , J R
. and W IL LI AM B. C AIN , JJ., joined. Debra L. Dishmon, L

ebanon, Tennessee, for the appellant, M.M.V.
Paul G. Summers, Attorney Gene ral and Reporter; Douglas Earl Di mo nd, Assistant Attorney General, for the appellee, State of Te nnessee. OPINION
I. A C HILD G OES I NTO F OSTER C ARE Eightee n-y ear-ol d M.M.V. gave birth to D.D.V. on December 16, 19 96. The place on the bir th certificate where the name of the father would normally appear was left blank, and th e individual the mother considered to be the child’s father played no posi tive r ole in his u pbrin ging, and a very

minor role in the proceedings that are the subject of this opinion.
D.D.V. first came to the attention of the Department of Children’s Services ( DCS or “the Department”) as t

he result of

three tr ips to the e

merge ncy room withi n a fourt

een day period in October and November

of 1997. M.M.V. brought her young son to the ER each time because of an-2-

injury to the head a

rea. The injuries were a cut to the forehea d, a cut lip and gum, and a cut or puncture of the upp er pala te and throat. None of the injuries required hospital admission o

r stitche s, butDr. Stephen Claycomb, the tre ating doctor, was concerned by the occurrence of so many injuries in so short a time, and he suspected the possibility of a buse.
Dr. Claycomb was par

ticularly conce

rned about

the third injury, beca

use in his experience it was unusual for a

child so young

to suffer such an injury . M.M.V. stated that the injury occ urred while D.D.V. was carry

ing a radio, with the antenna in his mouth. The doctor testified at deposition that it takes a good bit of force to pierce the uppe r palate, and that it generally happens whena child falls while run

ning with an objec t in its mouth . Beca use D.D.V. was so young , the doctor doubted the injury had occ

urred in this way. B ut M.M.V. testified that D.D.V. walked very early, a nd was running almost as soon as he learned to walk.
The Department

filed an emergency

petition for temporary

custody of the child on Nove mber 12, 1997, alle ging th at he wa s depend ent and neglecte d, and tha t a ny d el ay could ca

use him irrepa rable harm. The J uven il e C ou rt ap po in te d a gu ar di an ad li te m f or D. D. V. on th e s am e d ay. After a hearing, the

court awarded temporary

custody of the child to DCS, and he we nt into foster care. A Court-Appointed Special Advocate (CASA) was named to act as D.D.V.’s guard

ian short ly thereafter.
II. T HE P LAN OF C ARE On December 3, 1997, M.M.V. signed a plan of care prepare d by the Department with the goal of reunification. Among other things, the plan required the mother to pa y 21% of he

r income for child supp ort, cont

act DCS at least once a month, noti fy the Depa

rtment of any chang es in circumst ances, a nd submit to r

andom dru g scre ens. The first review of the plan was conducted on Fe bruary 18, 1998. M.M.V. was found to have complied with most of her t asks ( altho ugh the child support payments wer e not mentioned), to have attendedparenti ng classes , and to have visited D.D.V. regularly . The Department stated that M.M.V. needed to go to counseling and maintain employ ment , and rec ommended

that the child rema

in in Statecustody. The record contains a series of subseque nt progr ess repo rts that all show M.M.V. in compliance with mo st

of the elements of

the plan of care, but experiencing continuing difficulties with emplo yment and housi ng. The Department modified theparameters of its plans severa l times, requiring

at one point, for example, that M.M.V. demonstrate that she had remained in the same job for thr ee mon ths (which she appa

rently did sever

al times), but later inc

reasing it to six months. DCS consist ently stated that stabl e employ ment and s table hou sing we re the mo st importa

nt g oals for M.M.V . to accomplish.
M.M.V. had hers elf bee

n in fostercare for much of her childhood, and did not have the support of family members t

o fall back upon. She only ha d an eighth grade educ ation, and she had-3-

no job skills when the State took custody of her child. The Department made her situation even mo re diff icult by declaring

that the public housing project in Leba non, Tennessee where M.M.V. lived was too da

ngerous a neig

hborhood to bring her chil d into, and that she could not be reunited withhim unless she could present them with a copy of a lease or mortga ge ag reemen t with her name on it, and photographs of the living quarters. I t sho uld not be surprising that finding housing that met the Department’s requirements presented the g reatest difficulties for her.
M.M.V. had promptly responded to the D epartment’s concerns by movi ng o ut of her subsidized two bedr

oom apar tment, but was unable to rent another apartment, in part beca use of an unpaid bill the housing authority claimed she owed, and which she contested. She found herself homeless , but was la

ter able to stay with frie nds, moving

every few month s. The Department judged her to be non-c ompliantwith the requirement that she notify them every time she change d her add ress, but she testif ied th at lim itations in the leases of her friends prohibited them from

housing additiona l people i n their a

partmen ts, and she didnot want to get them in trouble. Though s he did not maintain contact

with DCS to the degree required by her plan of care, M.M.V. never lost contact with h erson, and she exercised both supervised and unsupervised visitation on a reg ular bas is, in acc ordance

with the D epartme

nt’s cha nging require ments.
At one point, M.M.V. fil ed a motio n to have h er child returned to her. She had found a job, and acquired temporary

housing when D.D.V.’s godmother Robin L ucas invited M.M.V . to move into her apartment. On February 2, 1999, the court ordered that phy sical custody of D.D.V . be returned to his mother on a 90 day trial home placement. Four day s later, the child returned to the emergency

room, having ingested psy chotropic pills. The co urt returned temporary custody of D.D.V. to the State , finding

that the need for

foster c are con

tinued to e

xist.
M.M.V. testified at trial that the pills her child ingested had belonged to Ms. L ucas, who was disabled and used a w heelcha ir. She co ntended t hat it wasnot possibl e to plac e Ms. L ucas’ medication totally bey

ond the reach of an active t oddler, without also making access to the medication diff

icult for M s. L

ucas . Wenotethat M.M.V. passed all her drug screens, a nd that the State acknowledged that there wer e no indications that she abused drugs or alcohol.
M.M.V. w orked at a number of different jobs. She sometimes chang ed jobs because of tran sportation pro blems, or in order to take another job that paid better. She also experience d periods of unempl oym

ent. Many of her

jobs were in nursing homes or hospitals. She testified that she ve ry m uc h e nj oye d w or ki ng wi th pa ti en ts , p ar ti cu la rl y el de rl y patie nts. At some point she obtained certification as a nursing technicia n.
In 1999 , M.M.V. became pr egnan t again . A few mo nths befo re her d ue date, she met t

h e Reverend Joysteen L

yles, pastor of a

Lebanon church known as the Potter’s Wheel. The pastor and some of the church members mobilized to help M.M.V. They provided a bedroom in a churchownedresidence for her, furnished many of her daily needs, and f

urnished counseling and teaching-4-

for her. Revere

nd Ly les broug ht M.M.V. to

the hospital, and was present in the delivery room when her daughter, K. V., was born on Nove mber 11, 1999.
Since M.M.V. w as l iving on c hurch pr operty , Revere

nd Ly les felt t hat she should compl

y withthe unwritten rules that such a situation implies. One weekend, M.M.V. left with her baby to sta y with a fr

ie nd, and did not contact any one at the church until she returned severa l days later. Reverend Ly les then asked her to leave. K.V. was subsequently placed in foster care, and ultima tely woun d up in th e same foster home as D.D.V. M.M.V. continued to go to chur ch at the Potter’s House, and Reverend

Ly les testified that she and her parishioners remained committed to helping M.M.V. if she needed it.
III. T ERMINATI ON P ROCEEDI NGS
A. DCS C HANG ES D IRECT ION In the Spring of 2000, the CASA ag ent prepared a confidential report for the benefit of the court, which re commende d that M.M. V.’s par ental rig hts be terminat ed. The agency noted that M.M.V. had not managed to obtain stable housing or employ ment despite the more than two year s that D.D.V. had been in custody, a nd stated that after such a period, “this case qualifie s for mandated TPR.” See Tenn. Code. Ann. § 36-1-113(h).
After conducting a periodic revi ew of the ca se on May 17, 2000, t

he Depa rtment itse

lf recommended

for the f irst time th at M.M. V.’s parental rights be terminated, and that D.D .V. be adopted. Among the items checked on the review summary form we

re that M.M.V. had made good progre ss toward reducing the risks that necessitate continued foster care, but that re asonable

efforts had been made to reunite the family , and the need for foster care continued to exist.
Clinical psycho logist Sa

ndra De Mott Phillips prepar

ed a psy cholog ical evaluation of M.M.V

. contempo raneous ly with the D epartme

nt’s review. Dr. Phillips noted that bec ause of h er famil y history and her experiences with foster care a s a child, M.M .V. h ad deficits as a parent, and was re se nt fu l o f a ut ho ri ty. She observed that “a therapist or caseworke r is likely to find her difficult.” The psychologist also stated tha t the goals of achieving stable employmen t and a stable living situation were good ones for her, but tha t to accomplish them, she needed a mentor. The report concluded,
“Thou gh it is time-consuming, a DCS worker w ould find it easier to work withher if he/she took the time to hear the story of her life in her own words. She is very emotionally

needy a nd such time spent

with her w ould

help establish a better relationship. Then she would be a ble to accept better the constructive criticism she needs to hear, knowing that the work er car es about her as a person who has had a particularly diff

icult life.”-5-

On September 26, 2000, the Department of Children’s Service s filed its petition to terminat e M.M.V.’s parental rights to D.D.V., a s well as t

he righ ts of any individua l who coul d claim pat

ernity of the child. The petition was signed b y Pa tty G raves, M.M.V.’s case manager, who a lso submitted an Affidavit of Re asonable Efforts, which included a recitation of the se rvices DCS had provided to unif y the family . The only

service s listed we

re “par enting c lasses, p syc

hologic al evalu ations, parenting assessments, drug and alc ohol assessment and supervised visitations with her son.”
B. T HE T RIAL
The case went to trial on March 23, 2001, and lasted two full days. The first person to testify was J.T.S., who denied that he was the father of D.D.V., and voluntarily surre ndered any

parental rights he might

have had. Other possible candidates for fathe rhood, M.H. and“Unknown Father of D.D.V.,” had been served by publication in conformity with the law, but did not make an appearance. The State called six othe r witness es, including M.M.V. The defense called two witnesse s, and had M.M.V. recalled to the stand. Some testimony highlights are discussed below. Patty Graves testified

that she hadbeen M.M.V.’s case manager since January of 2000. Af ter reciting a history of the De partment’s dealings with M.M.V., she was asked whether she believed that it would be

in D.D.V. ’s best interest fo r M.M.V.’s parental rights to be terminated. She answered in the af firmativ e, stating

as the ba sis for he

r opinion t

hat D.D.V . had bee

n in foster care for such a lon g t ime, and t hat he wa s fortuna

te in havi ng bee

n with the s ame foste

r paren ts throughout the entire period. She went on,
“It would appear that these two issues, housing and employme nt, would not be major or difficult issues to correct. And even though D.D .V. knows who his moth er is – and he loves his mot her – I thin k he would need more than unstable housing and some definite stability to provide for him financ ially.”
Ms. Graves expresse d doubts tha t M.M.V. wo uld be abl e to obtai n and main tain stabl e housing and employment if she we re given extra

time to do so, basing her opinion entirely upon the fact that she had not succeeded during the three ye ars that D .D.V. wa s in foster care. I n respons e to cross-examination, she characterized her relationship with M.M.V. as “prof essional,” and stated that “I don’t know her personally .” She admitted that she had never sat down w ith M.M.V. t

o talk to her about her past , and she

stated tha

t she had n

ever ma de a ref erral to help M.M.V. with housing because she had never been a sked.
Alth ough Ms. Grav es denie d that sh e had a person ality conflic t with M.M.V ., their relation ship can hardly

be calle d warm. Ms. Grav es testif ied as to o ne disag

reemen t betwee n them. During visitation with D.D.V. under the supervision of Ms. Graves, M.M.V. asked her son questions about his sister ’s adjustm

ent to the foster h ome in

which they both lived, questions such as whether the other childrenplayed with her, a nd whether she cried

at night. Ms. Graves ordered her to stop asking such questionsbecause in her view they

were not appropriate, and stated that if M.M.V. had any concer ns about th

e care her daug hter wasreceiving, Ms. Graves “would have been more than-6-

happy to discuss that with her prior to or after the visit.” When M.M.V. balked, Ms. Graves said she wo ul d e nd th e v is it if

sh e d id no t d ro p t he su bj ec t i mm ed ia te ly.
The testimony of L

ula McClain, who had acted as D.D.V.’s foster mother since he first went into fos ter care, indicates some possible reasons why M.M.V. might feel concern. Ms. McClai n testified that D.D.V. was a very active child, who needed constant attention, and that while he was in her car e, he ha d suffer ed house hold acc idents whi ch resul ted in a black ey e, a tooth kno cked out, and stitches o

r staplesto close a

wound in his head. Ms. McClain also testified that she was taking care of seven foster children under the ag e of ten, including a twelve-month-old, a fifteen-month-old, and an eighteen-month old. Although she testified that it was apparent that D.D.V. loved his mother, and that his mother loved him, she said that she would

be interested in adopting D.D.V. if that ever became possible.
Sherron Foutch testified that she had known M.M.V. since she was pregnant with D.D.V., and that before DCS took custody of the child , D.D.V. a

lway s appear

ed to be c lean, we

ll-fed, w elldressed, and well-cared

for. She declared that she had no doubts about M.M.V.’s ability to care for her child, and that it would be in D.D.V.’s best interest for them to be reunited.
Ms. Foutch is a disabled forty -year -old woman with no children o f her own , who started taking care of her brothers and sisters whe n she was a young

child herself, and has been taking ca re of children all her life. Ms. Foutch o bserved that M.M.V . was somewhat imma ture whe n they met, and that she had a difficult time dealing with i ndividual s in authority because of her un fortuna te experiences as a child in foster care. After M.M.V. lost custody of D.D .V., Ms. Foutch welcomed her into her home, and the younge r woman stayed with her

during several

intervals over the next few years. A home study of Ms. Foutch’s residence by a CASA representative described her as “open, interested and helpful,” and her apa

rtment a s “neat, clean and orderly ,” with all unsafe objects locked away or out of the reach of childre

n. On the b asis of the

study , the cour

t permitte d M.M.V. to

have sup ervis e d visitation with D.D. V. in her

apartme nt.
Ms. Foutch declared that

she considered

M. M. V. to be bo th a f

ri en d a nd a p ar t o f h er fa mi ly, and the older woman helped her in numerous way s, although she was not able to arrang e for food stamps or AFDC for M.M.V., because of the lack of a fixed address. M.M.V. helped look after the children Ms. Foutch was car ing for , and ac cording

to Ms. Foutch “they

just love her.” They

included Ms. Foutch’s grand-niece, with whom M.M.V. had f ormed a particularly

strong bond.
Ms. Foutch testified that she was willing to challenge M.M.V. when she was showing bad judgmen t, and that she was not afraid to enter into a shouting match with her when s he believed M.M.V.’s conduct amoun ted to “a bonehead stunt.” Ms. Foutch also testified that M.M.V. had grownand matured in recent y ears, and she promised that if M.M.V. were re- united withher son, she was ready

and willing to take care of him while M.M.V. worked.-7-

RondhaCharles testified that she had known M.M.V. fo

r about tw o ye ars. Just before they met, Ms. Charles had left an abusive husband, and she needed some one to watch her two y oung children while she was at work. M.M.V. offered to help her, a nd looked after her children for eight or nine hours a day . Ms. Charles stated that M.M.V. was very caref ul with the children, and that she had no worries about M.M.V.’s ability to keep them safe and healthy

. When M.M.V. came to the stand, she candidly ac knowledged that she had made many errors in judgment, and admitted that she was still immature in many respects, but she stoutly def ended her attitude towards M s. Grave s, who she claimed d

id not trea

t her as o ne adult s hould

treatanother.
M.M.V. described her most recent efforts to become self-suff icient. She testified that she was employ

ed at the Universi ty M edical Ce

nte r in Lebano n, where she was working four twe lve hour shifts and one eight hour shift each week . Though her hourly pay was low, she

received overtime and a $50 bonus for each

twelve hour shift she worked, and she was putting money away in the bank. Because of a

general shortage of

qualified personnel, she consider ed her jo b to be quit

e secure. She had also p

urchased a house

trailer with a fr iend who w as rece

iving dis ability

pay ments, and had it placed on a piece of land near H artsville. Though they had not yet moved

in, her attorney introducedinto evidence photographs of the trailer, a c ontract with Oakwood Homes for its sale, and an application for its purchase with an income statement on the back. M.M.V. e xplained that she had not attempted to buy

a house tr

ailer ea rlier, because

she just assumed that her purported debt to the public housing authority would ha ve prevented her from ge tting a bank loa n. She had also purchased a car to carry

her to and from work.
C. C LOSI NG A RGUMENTS AND F INAL O RDER
At the conclusion of the proof, the court heard closing arguments from the

State, M.M.V.’s attorney, and D .D.V.’s guardian ad litem. The Department’s attorney acknowledged that M.M.V. had made impressive progress toward he r goals, but

quest ioned why it had taken her so long. She noted that D. D.V had been in foster care for three and a half y

ears and that most of M.M.V. ’ s progres s had o ccurre d in t he few m onth s prio r to th e term inati on hea ring.
M.M.V.’s attorney deliver ed an impassioned response, de sc ribing the difficulties M.M.V. faced in obtaining housing and steady employment, as an individual without much education or any family support. She also observed that M.M.V.’s pregnancy and the birth of K.V. created additional difficul ties for h er, but a rgued that she h ad made r

emarka ble prog ress unde r the cir cumstanc es. The guard

ian ad lite m was rel uctant to make an u

nequivoc al reco mme ndati on one way or another. He stated that he could not predict whether M.M.V. would succeed in her ambitious plans to raise her children while working full time and re lying on the a ssistance of friends for childcare. He also expressed con cerns a bout D .D.V.’s foster family . He noted that the child needed a lot of-8-

individual attention, and that Ms. McClain, with seven children under the age of ten to take care of, would be h ard-pr

essed to f urnish it. The guardian ad litem further stated that he thought there had been substantial compliance withthe parenting plan and that it would be detrimental to D.D.V. to lose his mother. He declared that if the decision were his to make he would “have to think long and har d before I ter

minated on th is,” but con cluded that “I think the court will make the c orrect decision,” and that “I will sleep okay tonight regardless of what this Court does. I think this child will be cared for.”
The judge to ok the ca se under adviseme nt, pending rece

ip t of further financial docu mentation on M.M.V.’s job, and some hard thinking that he acknowledged would be necessary before hecould make a decision which he acknowledg ed “could go either way .”
On April 6, 2001, the j udge issued his ruling from the bench. Althoug h he conceded that M.M.V. had demonstrated significant improvements in her

life, an d had take

n “treme ndous step s” towards reunific ation with her son, h

e ruled t hat it was nonethel e ss appropriate to terminate her parenta l rights.
The trial court entered an order terminating M.M.V.’s parental rights, as well as those of J.T.S., M.H., and Unknown Father on May 3, 2001. The court found that M.M.V. had fail ed to substantia lly comply with the goa

ls of the permanency

plan in a timely manner, that she had failed to remedy the c onditions that led both to the child’s initial remov al from her c ustody , and his subsequent

removal in February

of 1999, that the p otential f or abuse or neglect still remained, that by failing to pay child supp ort for f

our months , she had statutorily abandoned the child, and that it was in D.D.V.’s best interest that her parental rig hts be terminated. This appeal followed.
IV. “R EASONABLE E FFORTS ”
We must state at the outset that we agree with t he tria l court tha

t this case

present s some difficul tfacts. I t is uncontroverted that

M.M.V. ha s maintained her r elationsh ip with her

son despit

e their long separation, and that she is still an important part of his life. She has been quite consistent in matters of visitation, despite the fact that she was effectively homeless for much of the time, and she has complied

with most of

the requ irementsthe Depa

rtment ha s asked he

r to perf orm. However, she let year s pass before estab lish ing a stable ho me for he rself and her son, and the im proveme nts she has made in her life are so rece nt that it is difficult to evaluate their permanence.
Parents have a

fundamental right to the care, custody and control of the ir children. Stanley
v. Illinois , 405 U.S

. 645 (1972 ). A heig htened st andard o f proof i s requir ed to prot

ect those importantrights. Santosky v. Kramer , 455 U. S. 745 (1982) . Before the State may sever the relation ship between parent and child it must prove the appropriate grounds by clear and convincing evidence, and must also prove that the termination is in the best interests of the child. Tenn. Code Ann. § 36-1-113.-9-

Even after a

child has been validly committed to the custody of the Department of Children’s Service s, the State ’s first p riority is to restore the family

unit if at all possible. See In Re Drinnon , 776 S.W.2d 96 (Tenn. Ct . App. 198 8). To tha t end, the Departm ent must sub mit a writt

en affi davit to the court in each proceeding w here the child's placement is at issue, cer tifying that it has made reasona ble efforts to reunify

the family. Tenn. Code Ann. § 37- 1-166. Section (g)(1) of that statu te defines reasonable efforts as “the exerci s e of rea sonable c are and diligence by

the depa rtment to provide services related to meeting the needs of the child and the family .”
It is evident from the record that both the Court and the Department have been very conscientious in monitoring M.M.V .’s prog ress, and that

of her child, and it is well-documented that the primary

obstacle to their r eunific ation hasalway s been the lack of s t able hous i ng, followed clos ely by lack of stable

employment. Howeve

r, although the Department has filed five “A ffi davi t[s ] of Reasona ble Effo rts” with the trial court, there is no evidence that DCS offered her a ny assistance at all with either o f these needs pri or to January of 2000, when Ms. Gr aves became her case mana ger.
In fact, it appears that DCS made M.M.V.’s housing situation more difficult by deciding that she would

have to move out of her two-bedroom apartment if she wished to be re -united with her son. There c an be no doubt that th e Depar tment is en

titled to e st ablish appr opriate standards for suitable housing. We believe, however, that when doing so r esults in the abandonment of a settled residence, the Department is also obligated to make an effort to help its client find new lodging.
The only repre sentative of the Department of Children’s Services to testify was Ms. Gr

aves. She admitted that she never made a referr al to help M.M.V. obtain housing, but insisted that she told M.V.V. “that if t

here wa s any

thing I could do to

help, to le

t me know and I would dowhat I could.” She also testified that when the subject of housing came up at one point, M.M.V. told her that she could get an apartment. When Ms. Graves was asked if she didn’t feel that housing was a problem for M.M.V ., she an swered “I c an’t ide

ntify problems that are

not identif

ied to me,” and elsewhere she stated that she thought housing “would not be a major or diff icult area to correct.”
It is obvious, however, that suitable housing would not be so easy for someone in M.M.V.’s position to acquire without as sistance . While her relucta nce to as k the Department for help is one of the sourc es of M.M. V.’s cur rent pro blems, it a

ppears t o us that the socia

l workers at the Department

have an oblig ation to us e their su perior in sight and training to help the

ir client s with the problems the Department itself has identified, even when n ot specifica lly asked to do so by the client.
V. G ROUNDS F OR T ERMINATI ON Statutory grounds for termination are found at Subsection (g) of Tenn. Code Ann. § 36-1- 113, and i nclude th

e following: (1) Abandonment by the pa rent or guardian, as defined in § 36-1- 102, has occurred;-10- (2) There has been

substantial noncompliance by the pa rent or guardian

with the state ment of re sponsibilit

ies in a permanency

plan or a plan of care pursuant to the provisions of title 37, chapter 2, part 4; (3)(A) The child has been removed from the home of the pa rent or guardian by order of

a court for a period of six (6) months and: (i) The conditions which ledto the child's removal or other conditions which in all reasonable probability woul d ca use the child to be s ubjecte d to further abuse or neglect an d which, the refore, prevent the child's saf e return to the care of the parent( s) or gu ardian( s), still pe rsist; (ii) There islittle likelihood tha t these c onditions w ill be rem edied at an earl y date so that the child can be safely returne d to the pa

rent(s) or gua

rdian(s ) in the near future; and (iii) The continuation of the parent or guardian and child relation ship gre atly diminishes the child 's cha nces of e arly

integration into a

safe, stable and permanent home. We will examine these grounds in the order in which they are found in the statute.

A . A BANDONMENT
Tenn. Code Ann. § 36-1-102 defines abandonment as willful failure to visit the child or willful failure to support or make reasonable pay ments toward the support of the child for a period of fo ur consecutive months immediately pr eceding the filing of a plea ding to terminate parenta l rights. Visitation

was not a n issue in th

is case, but the trial court found that M.M.V had abandoned her child by failing to pa

y more than token support dur ing the four months preceding the filing of the petition. The proo f shows tha

t while the

Departm ent inclu ded a ch

ildsupport

obligation in its plan of care from the

very beginn ing, alm ost no emph asis was placed on this portion of the plan, and the Department

always conside

red the acquisition of housing more cr ucial. Pa tty Graves testified that M.M.V. ha

d paid a to tal of $13 8 in child support, a

nd that he r last payment was made

on June 21, 2000. Other parts of the record showed that her total payments amounted to about $200, and that M.M.V.’s total income for the three y ears preceding trial was a bout $6,000.
We note that Tenn. Code Ann. § 36-1-102 defines willful failure to support as either a failure to pay any support whatsoever, or a

failure to pay

more than token support. Token support is defined as support which, “under the circumstances of the individual case , is insignificant given the pa rent's means.” Tenn. Code Ann. § 36-1-102(1)(B)

. We believe that

under the unusual c ircumsta

nces of t his case , M.M.V.’ s failure to pay child support cannot be considered willful, nor can the support she paid b e conside

red insig nifican t, given her limited means, her basic living expenses, the stringent housing requir ements placed upon her by the Department, and the scanty assistance it provided her.-11- B . T HE P ERMANENCY P LAN
The proof showed that prior to the fi lin g of the petition to

terminat e her pa rental r ights, M.M.V. complied with almost all the plan requirements set by the Department, except for the establishment

of a stable ho me. Sh e consistently visited her son, followed throug h with anger management

and pare nting cl asses, a

ttended a psy cholog ical eva

luation, p assed all h er dr ug tests , and abstained from criminal activity . Although she did not achieve the goal of working at

the same job for six month s, she did w ork at a n umber of jobs, and she managed to enhance her job skills and her ear ning pote ntial.
The trial co urt apparently based its finding that M.M.V. had not complied with the Department’s plan primarily upon her f ailure toest ablish a home that was satisfactory to the Departm ent. We have fou

nd that the

Departm ent did not

make re asonable

effortsto help her meet this requirement, so we cannot place the blame f

or this fa ilure en tirely upon her. Also, since M.M.V. had appare ntly acqu ired a r eside nce in her own name b y the tim e of tr ial (t hough no home study of that residence has yet been performed) we cannot say that this ground has been established by clear and convincing evidence

C . F AILURE TO R EMEDY
D.D.V. was first taken away from his mother because of concern about possible abuse. The Department

later determined that there had been no abuse , but decided that he could not be returned to his mother because of the possibility of neglect. M.M.V.’s attorney argued that three trips to the emergency

room which resulted in no necessary medical treatment were evidence of neither abuse nor neglect, but rather of an ove rly protective mother

. Regar dless of the validity of the re ason D.D.V . was re moved fr om his mothe

r’s home , it appears to us th at the co ndit ion t hat ch iefly prev ented his re turn w as the lack o f suit able h ousi ng. M.M.V. presented evidence at trial that she had purchased a trailer for use a s a residence, and placed it upon a piece of rura

l land. Thus, we cannot say that it has been established by c lear and convincing evidence that the condition preventing the reunion be tween mother and child h ad no t been remedied, or that there is little likelihood that it will be remedied at an ear ly date.
V. C ONCLUSI ON
While both parties have provided extensive argume

nt as to the

best inter ests of D. D.V., this factor only comes into play

if the grounds for terminat ion of parental rights have been prove n by clear and convincing evidence. Since we ha ve not found that any

such grounds have been proven, it is really not nece ssary for usto decide if D.D.V. would be better off in the custody of his mother or of someone else. We must observe, however, that we do not believe that the proof in the record-12-

supports a finding that it would be in D.D.V.’s best interests that his mother’s parental rig hts be terminated.
We do not wish

to minimize the

difficul ties that M .M.V. is bound to enc ounter a s a singl e working mother, and we cannot predict any better than the trial court can whether she will succeed in overcoming those difficulties. It is o bvious tha

t if her child is ret

urned to her, she will not be

able to keep working so many

hours at her

job, and that she will have to rely on a ne twork of friends who are wil ling t o help her wi th daycare and ot her mat ters. But th ese are not re asons for te rmina ting a parent’s rights, or for deny ing custody.
M.M.V.’s attorne

y po ints out to usthat petit ioners for adoption of a child are considered financi ally

able if th ey can ensu re that a ny p hys ical, emotional, or special needs of the child are met “by use of an y a nd all inc ome and eco nomic re sourcesof the pe titioners , including, but not limited to, assistance from p ublic or private sources.” Tenn. Code Ann. § 36-1-102(19) . She argues that if adoptive parents can rely

on such sources, it would be wrong to disqualify a biological parent

from the care of her child simply because of a similar reliance. We ag ree. We reverse the order of

the trial court

terminating the parental rights of M.M.V. We note, however, that our d

ecision does not operate t o remove custody of D.D.V. from the State of Tennessee or from h

is foster family . A chang e of cust

ody will requ ire furt her cour t procee dings, and further proof as to the improvements in M.M.V.’s situation.
VI.
The judgmen

t of the tr ial cour t is affir med in regard to the termination of the parenta l rights of J.T.S., M.H., and Unknown Father of D.D.V., but reversed in r egard t o the termination of the parental rights of M.M.V. Remand this cause to the Juvenile Court of Wilson County for furthe r proceedings consistent with this opinion. Tax the costs on appeal to the State of Tennessee.

_________________________________________ BEN H. CA

NTREL L, PRESI DIN G JUDGE, M. S.