### IN THE COURT OF APP EALS OF TENNESS EE AT NAS HVILLE Ma y 7, 200 4 S es sio n

IN RE 

### : A.M.T., Z .T.R., AND 

### K.W.T
.

Appeal f romthe Juvenile Court for Davidson Cou nty No. 22-72605, 2019-57602, 2019- 53684, 2219-70163 Bett y Adam s Gr een, Judge

No. M2003- 02926-COA-R 3-P T - F iled Jul y 2, 2004

Two childre n wer e plac ed in the custody of the De partment of Children’ s Services be cause of the mother’s inability

to provide stable and sanitary housing. The Depa rtment established pe rmane ncy plans wh e re by

the mothe r w ou ld o btain andma int a in s ta ble a nd sa nit ary

ho us ing , p a y

c hil d s up po rt , attend par enting classes, w ork with Homemake r Service s to learn how t o k eep the home clean, ob ta in a pa re nti ng a sse ssm e nt, a ndun de rg o c ou ns e lin g fo r h e r m e nta l he a lth iss ue s. A thir d c hil d was born w hile the mother’s other two children wer e in the Depa rtment’s custody . This child was born prematurely and require d extensive hospitalization a nd was also place d in the De p ar tment’s custody . The De partment filed a petition to t erminate the mother’s pa renta l rig hts as to all three
c hil dr e n, wh ic h th e juv e nil e c ou rt g rante d on th e g ro un ds of aba nd on me nt d ue to f

a ilu re to p a y

c hil d support, failing to comply with the perma nency

plans and p er s i s tent conditions. W e re verse the juvenile court’s finding of abandonment, but affirm the termination of par ental ri gh t s based on pe rs ist e nt c on dit ion s a ndfailu re to c omp ly wi th the pe rm a ne nc y

plan. We a lso a ff

ir m th e juv e nil e court’s f inding that termination of the m other’s parenta l rig hts is in the best interests of the children.
Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Juvenile Court Aff irm ed in Par t, Re verse d in P art

F RAN K G. C L EME NT , J R ., J ., delivere d the opinion of the court, in which W I L L I AM C. K O CH , J R ., P.J ., M.S., joi ned. W I L L I AM B. C A IN , J ., filed a c oncurring opinion.

Nick Pere nich, Nashville, Te nnessee , for the a ppellant, K.L .T., the mother.
Paul G. Summers, Attorney Gene ral a nd Reporter ; and Elizabeth C. Driver, Of fice of the Attorne y Gene ral, for

the appe llee, Te nnessee Depa rtment of Children’s Ser vices

Th oma s H . M ill e r, Na sh vil le , T e nn e sse e , g ua rd ia n a d li te m.At t he t i me of t hi s pl ace ment M ot her was pre gn ant wi t h a chi l d, who was adop t ed by a t hi r d part y s hor t l y af t er 1
b irth a n d w ith the c o n se n t o f M o the r. O v e r th e c o u rs e o f t h e se p ro c e e d ing s sh e b e c a m e p re g n a n t ag a in a n d ga v e b irth t o a c hil d , K .W .T ., wh o i s also the sub je ct o f t he se p ro ce ed i ng s.

-2- OP IN ION This is an appea l of the termination of the mother’s pa renta l rig hts to her t h re e childre n, A.M.T., Z .T.R. and K.W.T. Mother appe als and pre sents four issues for revie w. Fir st, did the trial court e rr whe n it found that the mother abandoned her children pursuant to Tenn. Code Ann. § 36-1- 113(g )(1) ? Second, did the court err by finding that the mother was in substantial non- compliance with the perma nency

plan pursuant to Te nn. Code Ann. § 36-1-113( g )(2) ? Third, did the trial court
err when it f ound that g rounds exis t unde r Tenn. Code Ann.§ 36- 1-113(g )(3) , commonly identified as per sistent conditions, t o terminate the mother’s pa renta l ri g hts? Fourth, was termination of the mother’s pa

renta l rig hts in the best interests of the c hildren?

Pr oc e du ra l H ist ory

a ndF a c ts

I n July 20 00 K. L .T . ( Mo the r) pla c e d h e r t wo c hil dr e n in the Ma dis on Chi ldr e n’ s H ome 1 beca use of c omplications f

rom a preg nancy that require d medication and bed re st. At the time she was staying at the Salvation Army and unable to work. The Chi ldren’s Home was c oncerned that Mo the r w a s e mot ion a lly

un sta ble a ndun able to k e e p th e c hil dr e n c le a n o r t o p ro pe rl y su pe rv ise them. I n September of

2000, the Children’s Home pe titioned for emer g ency custody of the c hildren
a ndthe c hil dr e n w e re app oin te d a g ua rd ia n a d li te m.

L eg al custody of the two children rema ined with Mother while the c hildren re mained in the ph y sic a l c us tod y

of the Chi ldr e n’ s H ome un til thebirth o f the e xpe c te d c hil d. Th e e xpe c te d c hil d
wa s p la c e d f

or a do pti on wi th a

famil y wh o ha d ad op te d one of Mo the r’ s othe r ch ild re n. Du ri ng thi s time, the Depa

rtment ag ree d to provide ser vices to Mother and a plan of action was de veloped that
re qu ir e d M oth e r t o f

indpe rm a ne nt h ou si ng , p e rm a ne nt e mpl oyme nt, ob ta in a me nta l he a lth
a sse ssm e nt andc omp le te pa re nti ng c la sse s. B a se d o n Moth e r’ s ag re e me nt t o a c c omp lis h th e se ta sk s, th e C h i l d r e n ’ s H o m e w i t h d r e w i t s p e t i t i o n i n N o v e m b e r o f 2 0 0 0 , a n d t h e c h i l d r e n r e t u r ne d to Mother’s c are

.
Howeve r, in A pril 2001, the Depa rtment filed a de pendenc y -neg lect petition ag ainst Mother alleg ing that the l iving conditions in the hom e were a threat to the children’s he alth and saf ety . The home was described as very dirty and cluttered wit h so much t rash in the rooms that acce ss to the home was se vere ly

restric ted. The pe tition allege d that food wa s unref ri gerated, dirty

dishes and uneate n food littered the a partment and that the home was filled with a he avy and unplea sant odor. One be droom was alleg ed to be uninhabitable. Mother agr eed to place the childre n with a frie nd and thus the Depa

rtment did not seek custody at that time.
By J uly of 2001, Mother was fa cing eviction from he r apa rtment and e ven thoug h she had adequate income, she had no plan to provide stable housing

. I n addition, the friend who had c are dO n A u g u st 2 0 , 2 0 0 1 , M o the r w a s o rd e re d to p a y $ 5 0 p e r m o n th in c h ild su p p o rt. 2

-3- for the children was no longe r able to car e for them. As a result, the Department obtained c ustody of the c hildren by

emer g ency

remova l, and Mother a g ree d there was proba ble cause to justify

the
remova l and that the alleg ations in the petition could be sustained.

Permane ncy

plans wer e appr oved by

the court which re quired Mother to:

1. F inda ndma int a in s ta ble ho us ing fo r a

pe ri odlon g e r tha n tw o o r thr e e mon ths

. 2. Coo pe rate wi th H ome make r s e rv ic e s a ndde mon str a te a n a bil ity to m a int a in s ome le ve l of c le a nli ne ss i n th e ho me a nda n a bil ity to b ud g e t. 3. Pay

child support in the amount the court determines

. 2 4. Spend at least 4 hours pe r month visiti ng with the children. 5. Cooperate with the counselor and follow rec ommendations of the counse lor. 6. I de nti fy

iss ue s th a t are ba

rrie rs to pe rm a ne nc y

by un de rg oin g a

pa re nti ng a sse ssm e nt.

Th e F os te r C are Re vie w B oa rdno te d in F e br

ua ry 20 02 that vi sit ing the c hil dr e n w a s th e on ly task in the perma nency

plan that Mother wa s satisfy ing. T he boar d also noted that Mother r evoked he r r e le a se to the De pa

rt me nt, de nying the De pa rt me nt a c c e ss t o h e r p sy c ho log ic a l r e c or ds

. On Marc h 7, 2002 the juvenile court found the two older c hi l d re n to be depe ndent and neg lected ba sed upon an agr ee d order betwee n the Depa

rtment and Mother . I n pertinent pa rt, the ag ree d order

provided that the f

ollowing f

acts we re supported by

clea r and c onvincing evidenc e:
1. The De partment of Children’ s Services ha s been involved wi t h t h e mother since June, 2000 as a re sult of the mother’s inability to maintain a s afe and sanitary living envir onment for he r childre n.
2. Although the Depa rtment had offe red the mother intensive services a nd the children ha d been r eturne d to her home, by Marc h 2001, the conditions in the home had onc e ag ain deteriorated to a n unsanitary state.

3. Ag a in, Ho me make r S e rv ic e s w e re of feredto a ssi st the mothe r w ith
c le a nli ne ss andbu dg e tin g iss ue s.
4. De sp ite he r i ns ist e nc e that sh e ha d s te a dy e mpl oyme nt, the mothe r f a ile d to cooper ate with the De partment, failed to p ro v ide ac curate information reg arding a pending ev i ct i o n , and has g ener ally failed to maintain a

stable, safe and sanitary

home environme nt for the children. As a result, the childre n wer e re moved into State custody on J uly 5, 2001.

On J uly 11, 2002, the juvenile court entere d a permanenc y hearing or der in whic h it found that the childre n had been in the custody of the Depa rtment since J uly 5, 2001, y et Mother had done-4-

nothing to satisfy the plan require ments of stable housing, or the other tasks set forth in the pa renting plan. A re vised plan wa s approved on J uly 11, 2002, this ti me incre asing the stable housing require ment to six months. The Depa rtment stated that it had the concur rent g oals of re turning the children to Mother

and adoption.

I n the midst of these diffic ulties, Mother g ave birth to another c hild on January 1, 2002, who be c a me the su bje c t of the se pr oc e e din g s. B orn pr e ma tur e , thi s c hil d, K. W.T ., wa s ho sp ita lize d u nti l Aug ust of 2002. This child, as described by his ne onatolog ist, has had an “ extremely leng thy , and complex medical course .” The doctor further de scribed the child as “ventilator depende nt for 100+ day s and at one point, was considered terminal.” As a result of t he dependenc y on the ventilator a nd prematurity , the doctor opined t hat t he child had ex tensive l ung damag e and w ill need supplemental
ox y g en ther apy

for a n “undete rminable leng th o f t i m e. ” The doc tor furthe r stated that the c hild’s
m ed i ca l n ee d s af

t erd i s ch ar ge f

ro mt h e h o s p i t al wo u l d b e ex t en s i v e, t h at t h e c h i l d wo u l d b e a th i gh risk of re spiratory

and bloodstrea m infections wit h potentially sever e conse quence s and that the child’s prog nosis was “e x tremely g uarde d.”

Be cause of this child’s extensive me dical needs and the fac t that Mother had not complied with most of the require ments of the perma nency plans for the other two children, the Depa rtment filed a pe tition for custody and emerg ency remova l upon his rele ase f rom the hospital. The pe tition further indicated that Mother had no pe rmane nt addre ss and that Mother state d that she would be moving t o a n ew home in Aug ust of 2002. On Aug ust 19, 2002 the juvenile court e ntere d an
e me rg e nc y

pr ote c tiv e c us tod y

or de r p la c ing the c hil d inthe c us tod y of the De pa rt me nt. A p e rm a ne nc y

plan wa s de ve lop e d f

or the inf a nt, wh ic h w a s si mil ar i n it s r e qu ir e me nts to the plans for her other t wo children, but it further provided that Mother would nee d to participate and demonstrate the medical skills neede d to handle the infant’s medi cal condition. On October 11, 20 02 , th e juv e nil e c ou rt

a do pte d th e pe rm a ne nc y

plan f or the inf a nt, a ndno te d th a t Mo the r w a s st ill failing to substantiallycomply with the perma nency

plans for he r other two c hildren.

On Janu ary

9, 20 03 , th e De pa

rt me nt f ile d it s p e tit ionto t e rm inate Mo the r’ s p are nta l r ig hts

. After the t ri a l, w h ic h to o k p la c e o v e r

tw o d a y s , Ju n e 9 a n d Ju ly 2 8 , 2 0 0 3 , th e ju v e n il e c o u rt terminated Mot h er ’s p ar en tal rig hts on three of the g rounds for te rmination found in Tenn. Code Ann.§ 36-1-113( g ). First, the court found that she willfully failed to support the c hildren pursua nt to Tenn. Code Ann. § 36- 1-113(g )(1) and §36-1- 102(1)( A). The court noted that with the exception of the fir st pay ment, every payment was made afte r the filing of the pe tition and that the support that Mother did pay w a s to k e n

. T h e c o u r t f u r th e r n o te d th a t w h il e it d id n o t b a s e it s f in d in g of abandonme nt on failure to visit, it “seriously question ed ” whether Mother ’s ef forts in this reg ard
wer e also token, pointing out that Mother wa s “inconsistent and e rratic” in visiting the c hildren and that w he n s he mis se d v isi tin g the c hil dr e n o n Ch ri stm a s, sh e didno t r e qu e st a make up vis it.
Second, the juvenile c ourt found substantial noncomp l i an ce w ith the permane ncy plans pursuant to Tenn. Code Ann.§ 36-1-113(g )(2)

. Pertinently the court stated, “W hen the goa l is return to pare nt, permane ncy

plans are blueprints for r eturning children to pa rents. [ M o t h er] ignor ed theT he st at ut o ry ground s fo r t erm i nat i ng pa rent al ri ght s are fo und i n T enn. C o d e A nn. § 3 6

- 1

- 1 1 3 (g)

. 3

-5- c or e re qu ir e me nts of the plans : main ta ini ng sta ble , san ita ry ho us ing , d e mon str a tin g bu dg e tin g skill s and addr essing her issues in a the rape utic setting.”
Third, the juvenile court found g rounds for termination pursuant to Tenn. Code Ann. § 36- 1- 113(g )(3) , commonly

ref err ed to as “ persistent conditions.” The court stated:
As previously

noted, the mother ha s chang ed re sidences at least 13 times since [A.M.T.] and [Z.T .R] have be en re moved, and she has not demonstrated that she has acquir ed an ab i l i t yto keep he r home c lean. She a cknowledg es that moving every thr e e or fo ur mon ths is a

c op ing me c ha nis m f

or he r. She ha s p a id o nly

tok e n c hil d support. She has not e ng ag ed in me aning fully , thera peutic counse ling to addr ess her own issues of phy sical and se x ual abuse ; indeed, her persistent fa ilure to do so makes it c le ar that sh e is n ot g oin g to c on fr on t th os e de mon s f ro m he r p a st. The juvenile c ourt furthe r found that pur suant to Tenn. Code Ann. § 36-1- 113(i) termination of Mo the r’ s p are nta l r ig hts wa s in the c hil dr e n’ s b e st i nte re sts a ndba se d it s d e c isi on on nin e fa c tor s.
Standard of Re view in Termination Cases

Procee dings to terminate par ental rig hts are statutory . Parties see king to terminate a pa rent’s rig hts with reg ard to his or h er ch i l d must prove two things. The y must prove the existence of at le a st o ne statut ory

g ro un d f or te rm inatio n. Te nn . Co de An n. § 3 6- 1- 11 3( c )( 1) ; I n r e D.L.B. , 1 18 3 S.W. 3d36 0, 36 7 ( Te nn . 2 00 3) ; J on e s v . G ar re tt , 9 2 S

. W

. 3 d 8 3 5 , 8 3 8 ( T e n n

. 2 0 0 2 )

. A d d i t i o n a l l y, they must prove that t erminating the parent’s rights is in the child’s best interests. Tenn. Code Ann. § 3 6- 1- 11 3( c )( 2) ; I

n r e A

. W. , 114 S.W. 3d 54 1, 54 5 (T e nn . Ct . A pp . 2 00 3) ; In re M. W .A ., J r. , 980 S.W. 2d62 0, 62 2 (T e nn . Ct. App . 199 8)

. Th e fa c tor s to be c on sid e re d in a “ be st i nte re sts ” a na ly sis
are set forth in Tenn. Code Ann. § 36-1-113( i).
Persons seeking to terminate these rig hts must prove the elements of their c ase by clea r and
c on vin c ing e vid e nc e

. Te nn . Code An n. § 3 6- 1- 11 3( c ); In re Vale ntine , 79 S.W .3d 539, 546 (Tenn. 20 02 ); I n r e A

. W. , 114 S.W .3d at 545

. E v i d en ce that satisfies the clea r and c onvincing evidenc e standard e liminates any serious or substantial doubt about t he correc tness of t he conclusions drawn from the e vidence

. In re Vale ntine , 7 9 S. W.3 d at 54 6; W alton v. Y oung , 950 S.W .2d 956, 960 (Tenn. 19 97 ); In re C.D.B. , 37 S.W .3d 925, 927 (Tenn. Ct. App. 2000). I t produce s in a fac t-finder ’s mind a firm b el i ef o r conviction reg arding the truth of the pr opositions s oug ht to be established. In re A.D.A. , 8 4 S.W.3 d 592 , 596 (T e nn . Ct. A pp . 2 00 2) ; Ray v . Ray , 83 S.W .3d 726, 733 (Tenn. Ct. App. 20 01 ); I n r e C

. W. W. , 37 S.W .3d 467, 474 (Tenn. Ct. App. 2000).

As a c on se qu e nc e of the c le ar a nd c on vin c ing bu rd e n of pr oo f stand ard , thi s Cou rt fo un d it
nece ssary to adapt Te nn. R. App. P. 13(d). In Re Ad op tio n o f M uir , No. 2002-02963-COA -R3-CV, 20 03 WL 22 79 45 24 , * 2 ( Te nn . Ct . A pp . N ov . 2 5, 20 03 ) e xpla ine d th e a da ptatio n inde ta il.T h e s e de c i s i on s dr a w a di s t i n c t i on be t w e e n s pe c i f i c fa c t s a n d t h e c om bi n e d w e i g h t of t h e s e f a c t s

. T e n n

. R. 4
A p p . P . 1 3 (d ) re q u ire s u s to d e fer to the trial c o u rt’s sp e c ifi c fi n d ing s o f fa c t as lo n g a s the y a re su p p o rte d b y a preponder anc e of

t he ev i dence

. H owever , we mus t t hen det er mi ne whe t her t he com bi ned we i gh t of t hes e fact s provi des cl ear and co nvi nci ng evi d ence supp o rt i ng t he t ri al c o urt ’ s ul t i m at e f act ual co ncl usi o n. T he T enness ee S up rem e C o urt used t hi s ap p roac h i n In R e Va l ent i ne when i t recognized t he d i f ference b et ween t he co ncl usi o n t hat a biol o gi cal pa rent h a d no t co m p lied su b sta n tially w ith h e r o b liga tio n s in a p e rm a n e n c y p la n a n d the fac ts re lied up o n b y the trial c o u rt in

su p p o rt o f t h is c o n c lus io n

. In Re Val ent i ne , 7 9 S .W .3 d a t 5 4 8 -4 9 ; se e a lso J o n e s v . G a rre tt , 92 S. W

. 3d a t 838.
-6- Be cause of t he heightene d burden of proof required by Tenn. Code Ann. § 36- 1-1139(c ), we must adapt Tenn. R. App. P. 13(d)’ s customary standard of revie w for
case s of t his sort. First, we must review the trial court’s spe cific f indings of f

act de novo in acc ordanc e with Tenn. R

. Ap p

. P . 13(d). Thus, e ach of the trial court’s specific fac tual fi n d i ng s will be presumed to be corr ect unless the e vidence preponde rate s otherwise. S econd, w e must determine w hether the fa cts, either a s fo un d b y the tria l c ou rt

or a s su pp orte d b y

the pr e po nd e ranc e of

the e vid e nc e , c le arl y and co nvincing ly

establish the g rounds for te rminating the biologic al par ent’s pare ntal rig hts. J

on e s v . G ar re tt , 92 S.W. 3d a t 838; In re Vale ntine , 79 S.W .3d at 54 6; Ray v . Ray , 8 3 S

. W

. 3 d a t7 33 ; I n r e L

. S

. W. , No. M2000-01935-COA- R3-J V, 2001 WL 1013079, at *5 (Te nn. Ct. App. Sept. 6, 2001), perm. app. de nied (Tenn. Dec . 27, 2001). 4

In Re Ad op tio n o f M uir , at *2 .

Abandonment

Mother ar g u e s th a t w h il e h e r p a y me n t o f s u p p o r t w a s n o t p e r f e c t, th e D e p ar tm e n t d id not sh ow by c le ar andc on vin c ing e vid e nc e that sh e int e nd e d to aba nd on he r ch ild re n b y faili ng to support them. As an example, she asserts that she paid $71.69 for medic al insuranc e and $15.12 f or d en t al i n s u ra n ce ev er y t wo we ek s wh i l e t h e ch i l d re n we re i n cu s t o d y fr o mOc t o b er , 2 0 0 1 t h ro u gh November

2002. Further, Mother

arg ues that s h e was c onfused a bout the amount to pay

and the pr oc e ss o f p a y me nt thr ou g h wa g e a ssi g nme nt. Mo the r a sse rt s th a t th e c a se wo rk e r, Shatin a B y e rs , did not discuss child support pa y m en ts with her. Mother a lso contends that she broug ht gif ts and clothing to the children and that she m oved int o and furnished a larg er trailer in anticipation of the children’ s return home

. The De partment a sserts that beg inning in Aug ust of 2001 Mother wa s under an order to pay $50.00 in child support for the c hildren in the De partment’s c ustody and that Mother w as aw are of this obli g ation. Further, the D epartment arg ues that the oblig ation to pay child support was a lso part of the pe rm a ne nc y

plans

.
Acc ording to the Depa

rtment, Mother’s te stimonyindicates that she w as em p l o y ed at numerous jobs while the c hildren we re in the D epartment’s cu s t o d y

. Howeve r, the De partment
asserts that she only

paid $150.00 in child s u p p o rt in the sevente en month period that e lapsed betwee n the orde r re quiring support and the f iling of the petition to terminate Mother’s pa renta l-7-

rig hts. The Department further points out that Mother paid no support in the four months prior to the filing of the petition.
The g uardia n ad litem, Thomas Miller, asserts that “the re cord doe s n o t s h o w clea rly and
c on vin c ing ly that Moth e r’ s su pp ort w a s in sig nif ic a nt g ive n h e r m e a ns or

that sh e wi llf

ull y faile d to support her c hildren” and that the juvenile court’s finding of abandonment should be reve rsed. The g uardia n ad litem contends that while it is undisputed that Mother knew of her obligation to support the ch i l dren, the four- month period at issue under the statute would run f

rom September 2002 thr ou g h D e c e mbe r 2 00 2 a ndthat t he reco rddo e s n ot i nd ic a te Mo the r’ s in c ome du ri ng thi s ti me period e v en though she appea rs to have be en consistently employ ed and that income during other pe ri od s w a s e sta

bli sh e d. F urthe r, the g ua

rd ia n ad lit e m ass e rt s tha t Moth e r’ s tes tim on y that she pa id medical a nd dental insuranc e for the childre n is uncontrove rted. Moreove r, t here was a lso proof of
a n Inte rn a l Re ve nu e Se rv ic e int e rc e pt i n th e a mou nt o f $ 70 0. 00 wh ic h w a s f or c hil d s up po rt

.
F or pu rp os e s o f t e rm inatin g the pa re nta l r ig hts of

a pa re nt, “ aba nd on me nt” me a ns :

For a period of four ( 4) conse cutive months immediately prec eding the fi lin g of

a pr oc e e din g or

ple a din g to t e rm inate the pa re nta l r ig hts of the pa rent(s) or g uardia n(s) of the child who is the subject of the petition for termination of pa renta l rig ht s o r adoption, that the pare nt(s) or g uardia n(s) e ither have willfullyfailed to v isit or have wi llf ull y faile d to su pp ort or ha ve wi llf ull y faile d to make re a so na ble payments toward the support of the child;
Tenn. Code Ann.§ 36- 1-102(1) (A)( i).

The statute f

urther pr ovides that " token support " means that the support, under the circ umstances of

th e i n d i v idual case , is insignifica nt give n the par ent' s means, Te nn. Code Ann.§ 36 -1 -1 02 (B ), a ndthat “ wi llf ull y faile d to su pp ort" or

" wi llf ull y faile d to make re a so na

ble pay me nts tow ardsu c h c hil d' s su pp ort" me a ns the wi llf ul failu re , f

or a pe ri odof fo ur (4 ) c on se c uti ve mon ths , to provide monetary

support or the willful f

ailure to pr ovide more than token payments toward the support of the c hild. Tenn. Code Ann.§ 36-1- 102(D).

The c oncept of

"w illfulness" is at the core of the statutory definition of aba ndonment. In re Ad op tio n o f M uir at *4. A pare nt c annot be found to ha ve abandoned a c hild unless the pare nt either has "w illfully " failed to e ng ag e in mor e than token visitation or has "w illfully " failed to pr ovide more than token monetary support to the child for f our conse cutive months. Id

. at *4. In re Adoption of Mu ir fu rthe r e xpla ins that,

"Willfulness" doe s not require the same standa rd of culpa

bilityrequire d by the p e n a l c o d e

. ( c i t a t i o n o m i t t e d )

. N o r d o e s i t r e q u i r e m a l e v o l e n c e o r i l l wi ll. (citation omitted). Will ful conduc t co n sists of acts or failures to act that a re intentional or voluntary

rathe r than a ccide ntal or inadve rtent. (c itation omi t t ed ).-8-

C o n d u ct is "w illful" if it is the product of fre e will r ather than coer cion. Thus, a person a cts " willfully " if he or she is a fre e ag ent, knows what he or she is doing , and i n t en d s t o d o wh ath e o r s h e i s d o i n g.

Fa ilure to support a ch i l d is "willful" when a person is aw are of his or her duty to support, ha s the capa city to pr ovide the support, makes no attempt to provide support, and h as n o justifiable excuse for not providing the support. (c itation omitted).

Id. at *4-5.

Cr iti c a l to the de te rm inatio n o f a ba nd on me nt u nd e r T e nn

. Cod e An n. § 36 -1 -1 02 (1 )( A) (i ) i s the four month period “immediately prec eding the filing of a proce eding or plea ding to terminate the pare ntal rig hts of the par ent(s).” I n this case, the pe tition t o terminate Mother’s pare ntal rig hts was fi le d o n J a nu ary 9, 20 03 so the re le va nt pe ri od e xten ds ba c k fou r mon ths fr om this date . D uring thi s time, Mother pre sented testimony which wa s uncontroverted, that she pa id for medic al and de ntal ins ur a nc e fo r the c hil dr e n inthe re sp e c tiv e a moun ts of $7 1.69 a nd$1 5. 12 e ve ry tw o w e e ks un til No ve mbe r of 20 02

. Gi ve n Mo the r’ s ty pic a lly mod e st le ve l of inc ome , w e fi ndthat th e se pa y me nts
are not insignifica nt. Furthe r, since the rec ord does not c ontain evidenc e of Mother’s income and expenses during this four -month time pe riod, the evidenc e is the ref ore insuff icient to conclude under the clea r and c onvincing standard that Mother h ad t h e m eans and willfully failed to support he r children. Thus, w e re verse the trial court on the issue of abandonment.

Permane ncy

Plan

Mother denie s that she failed to substantially comply with the perma nency

plans. She arg ues that th e juv e nil e c ou rt is inc or re c t in its fi nd ing that she “ ig no re d th e c or e re qu ir e me nts of the plans : maintaining sta

ble, sanitary

housing, de monstrating budg eting skills and addre ssing he r issues in a t h e r ap e u t i c s e t t i n g

. ” S h e a s s e r t s t h a t t h e D e p ar t m e n t i g n o r e d h e r w h e n s h e d i d m o v e i nto stable housing a nd did not check whether the housing was be ing ke pt clean. Mothe r asse rts that the Depa rtment is using he r move to be t t er h o u s i n g ag ainst her a nd that in spite of the fa ilure of the De pa rt me nt t o h e lp h e r s he ha s g ott e n he lp fr om f ri e nd s o n b ud g e tin g a ndfr om the Me nta l H e a lth C o -O p wi t h re s p ec tt o h erm en t al h ea l t h i s s u es an d al s o as s i s t an ce wi t h b u d get i n g.
The De partment a

rg ues that t he permanenc y plan re quirements we re “ rea sonable a nd related to remedying the conditions whi ch n ecessitate foster car e plac ement.” T enn. Code Ann. § 37- 2- 40 3( a )( 2) (C ); In Re V

alentine , 79 S. W

. 2d 3d 539, 547 (Tenn. 2002) . The De partment maintains that Mother failed to comply with even the most basic require ments of the plans. The Depa rtment points to specific instance s of non-complianc e which it c ontends are substantial, suc h as the fac t that she did not stay i n the same housing for more than two or thre e months, that the conditions in the housing w ere deplora

ble, and that c lean a nd stable housing was a critica l issue to remedy . Moreove r, on second day

of trial, s h e wa s m o v i n g ag ain, and a s of that date ha d no housing, ha d quit her previous job and wa s working for a day -labor company

. Maintaining stable housing, is critical, the-9-

De p ar t m en tco n t en d s , b ec au s e wi t h o u t s t ab l e h o u s i n g, t h e re q u i re m en to f ge t t i n g as s i s t an ce t h ro u gh Homemake r Service s is impos sible. Furthe r, the De partment a rg ues that while Mother

did learn a g reat deal about the c are h er s i ck child, K.W .T., would requir e, ca ring for the c hild would be i m p o s s i b l e w i t h o u ts t ab l e a n d cl ea n h o u s i n g.
Th e g ua rd ia n a d li te m a g re e s w ith the juv e nil e c ou rt ’s ru lin g that Mo the r f a ile d to c omp ly with the core require ments of t he plan and that beca use t he core requireme nts are entitled to gr eat weig ht in the court’s a naly sis, the court’s ruling should stand.

The fr amewor

k for our analy sis of this ground is set forth in In re Vale ntine . F ir st,

A t ri al court must find that the re quirements of a perma nency

plan ar e "r easona ble and related to re medy ing the conditions which nec essitate foster car e pla c e me nt. " Te nn . Co de An n. § 3 7- 2- 40 3( a )( 2) (C ). W e hold that th is f ind ing mus t be made in conjunction with the determination of substantial nonc ompliance unde r § 36-1-113( g )(2)

. In re Vale ntine, 79 S.W .3d 539, 547 (Tenn. 2002) . Second, we m u s t co n sider what constitutes
s u b s t a n t i a l n o n c o m p l i a n c e a n d t h e e f f e c to f t h e f a i l u r e t o c o m p l y.
Substantial non compl iance is a question of law w hich we r eview de novo with no presumption of corr ectne ss. Substantial noncomplianc e is not defined in the t er m i n at i o n s t at u t e. T h e s t at u t e i s cl ea r, h o we v er , t h at n o n co m p l i an ce i s n o ten o u gh to j us tif y te rm in ati on of

pa re nta l r ig hts ; th e no nc omp lia nc e mus t be su bs ta nti a l. Bla ck' s L aw Dic tionary

define s "substantial" as " [o] f real worth and importanc e." Black's Law Dictionary 1428 (6th ed.1990). I n the context of the requir ements of a perma nency plan, the rea l w orth and importance of noncompliance s h o u l d be
measure d by

both the deg ree of noncomplianc e and the weig ht assigne d to that require ment. Terms whic h are not rea sonable a nd related ar e irre levant, and
su bs ta nti a l no nc omp lia nc e wi th s uc h te rm s is ir re le va nt.

Id. at 548-549 (T enn. 2002).

Th e juv e nil e c ou rt

fo un d that the re qu ir e me nts of the plan w e re “ re a so na ble a ndre la te d to
re me dying the c on dit ion s” wh ic h c aus e d th e pla c e me nt in fo ste r ca re a nd thi s f

ind ing wa s ma de in
c on jun c tio n w iththe de te rm inatio n o f s ub stanti a l no nc omp lia nc e . O ur re vie w o f th er e c o rdc on fi rm s that the re qui reme nts were rea sonable, pra ctical a nd highly rele vant to resolving the issues that
cause d the childre n to be place d in the Depa rtment’s custody

. Mother’s f

ailure to c om p l y with the plans rose to the le vel of substantial noncomplianc e. Whil e Mother te stified at g reat leng t h an d i n d etail about how she partially complied, that no one provided a ssistance so t h at she c ould comply , and how c onflicts with her De partment c asew orker preve nted he r fr om comply ing; ther e is nothing in the r ecor d to support these cla ims. Moreover,-10-

there is nothing in the re cord to s h o w t h at s he aske d for f urther a ssistance or c omplained of the alleg ed def

iciencie s o f De p artment pe rsonnel. Abse nt supporting pr oof in this reg ard, w e find Mother’s e x cuses f

or noncompliance insufficient, e specia lly in light of the le ng th of time that she had to comply

.
We a lso no te fr om M oth e r’ s te sti mon y that be tw e e n th e tr ia l date s o f Jun e 9, 20 03 a ndJuly 28, 2003 she made some prog ress with some of the r equire ments, such as obtaining pare nting c lasses and g etting he lp with her mental he alth issues. Howeve r, the juvenile c ourt had doubt s , as do we, as to the conte nt and suffic iency of the c lasses. I

ronica lly , the succ esses Mother claims to have achie ved, which a

ppear to be inadequa

te, ar e a mixed bag for Mother beca use t h ey p ro v e t h at the eff ort s M o t h er m ad e afte r the trial be g an could ha ve and should ha ve bee n made in the two y ear s prec eding the t rial. The juvenile court chara cterized these e fforts as “too little, too late.” We ag ree a n d , th u s , ar e n o t p e r s u a d e d th a t th is la s t m in u te b u r s t o f a c ti v it y is in d ic a ti v e o f

a lo n g -term
c omm itm e nt o n M oth e r’ s p art to r e so lve the iss ue s w hic h le d to the inv olv e me nt of the De pa rt me nt. Mother also pre sented testimony on the second day of trial which did little but undersc ore her de ficienc ies. For

example, on the first day

of trial, she testified that she had lived at her c urre nt addre ss f or ten months, y et on the second day of trial she te stified that she had move d, y et ag ain. She claimed she did this so t hat her children w ould benef

it from better living conditions; howeve r, on cross-e x amination, it was reve aled that Mother was mer ely

in the proce ss of moving, ha d left her previous re sidence and had no housing for the children. To further neg ate a ny alleg ed bene fit from thi s r e loc ation, Mo the r c la ime d th is m ov e a s a n e xpla natio n f or he r i na bil ity to p a y c hil d s up po rt

. We view these c hang es betwe en the trial dates as consistent with Mother’s te stimonyduring the fi r s td a y

o f tr i a l w h e n s h e s a i d , “ [I ]f I ’ v e l i v e d s o m e w h e r e m o r e t h a n ab o u tt w o a n d

- a

- h a lf
mon ths , u su a lly

abo ut thr e e mon ths is m y stay tim e mos tly

jus t be c a us e I

mov e so muc h a ndI

- - it just doesn’t fee l rig ht.” I n sum, we view M other’s la st minut e ef forts to comply

with the pe rm a ne nc y

plans a s mo re e vid e nc e of Mo the r’ s h abitua lly

ina de qu a te e ff

orts andba d d e c isi on s.
Persistence of Conditions

Mother ar g ues that she should ha ve been g iven more cre dit f or her eff orts at compliance , that the court incorre ctly

char acte rized her e fforts as “too little, too late,” and that the D epartment’s failure to provide her

with service s or che ck on h er improvements should not be held ag ainst her. Further , s h e arg ues that Dr. B erry man, who performed the pare nting a ssessment, testified that Mother could improve herse lf within a short period of time.

The De partment asserts that there is no dispute that the children have been in its custody for more than six months and that Mother ha s failed to re medy the conditions which broug ht about the
c hil dr e n’ s r e mov a l fr om the ho me

. Th e De pa rt me nt arg ue s that Mo the r h a s st ill no t pa rt ic ipate d in long- term co n s i s t ent t hera py , has fa iled to maintain stable housing and employ ment and that Mother’s f

ailure to remedy these conditions in three y ear s is clea r and convincing evidenc e that she will not remedy t h e conditions at an e arly date a s require d by

the statute. F urther, the Depa rtment-11-

c on te nd s th a t it

is d e tr ime nta l to ke e p th e c hil dr e n in fo ste r c are a ny lon g e r and th a t do ing so wi ll
w o rk t o p r e v e n tt h e i r

i n t e g r a t i o n i n t o a

s a f e a n d p e r m a n e n tf

a m i l y. The g uardia n ad litem contends the ma in rea son that the children w ere remove d was lac k of stable housing and that this c ondition st ill ex ists as well as the fa ct that Mother ha s failed to re solve her untre ated a

buse issues, exposing the c hildren to furthe r abuse or neg lect if they are returne d.

I n terminating Mother’s pa renta l rig hts on this ground, the juve nile court stated:
[T] he mother ha s chang ed re sidence s at least 13 times since [A.M.T.] and [ Z .T.R.] ha ve be e n r e mov e d, a nd sh e ha s no t de mon str a te d th a t sh e ha s a c qu ir e d a n a bil ity to ke e p h e r h ome c le a n. She a c kn ow le dg e s th a t mo vin g e ve ry thr e e or fo ur mon ths is a coping mecha nism for her. She ha s paid only token ch i l d s upport. She has not eng ag ed in mea n i n g fully , thera peutic counse ling to addr ess her own issues of phy sical and sex ual abuse; indeed, her persistent failure to do so makes it clea r that sh e is n ot g oin g to c on fr on t th os e de mon s f ro m he r p a st.

L ast minute eff

orts of a pare nt wer e examined by this court in In the Matter of A.W . and J.W , 11 4 S. W. 3 d 5 41 (T e nn . Ct . A pp . 2 00 3) . In th a t matte r, the mothe r, wh o ha d be e n d ia g no se d w ith bi-polar disorde r, re peate dly ref used to take he r medica

tion until afte r the pe tition t o terminate w as filed, which w as some two y ear s after the childre n wer e plac ed in foster car e. In that case , the trial
c ou rt fo un d th a t th e mothe r m a de a dr a ma tic imp ro ve me nt a ft e r the pe tit ionto t e rm inate he r rig hts
was filed but c oncluded that the improvement was “too littl e, too late.” Id

. at 547. As to the “too littl e” c onclusion, this court co n cu rr ed finding that the mother be g an taking her me dication, not beca use she be lieved she ne eded the medication but beca use she had been given an ultimatum. As to the “too late” conclusion, this c ourt ag ain concur red finding it wa s confr onted with a mother who had re peate dly

told the Department over two y ear s that she would not take her medicine. B ased on the abo ve fa c ts, thi s c ou rt c on c lud e d th a t th e tr ia l c ou rt g a ve th e mo ther

a n a de qu a te c ha nc e to comply , that the mother failed to do so and the termination of her rig hts was af

firmed. Id. at 546-547.
The statute pr ovides for te rmination when the child has bee n remove d from the home of the pare nt by order of a c ourt for a

period of six (6) months and
(i ) T he c on dit ion s wh ic h le d to the c hil d' s re mov a l or oth e r c on dit ion s w hic h in a ll
rea sonab l e probability

would cause the child to be subjec ted to further abuse or neg lect and w hich, there fore , preve nt the chil d 's s af e return to the car e of the pa re nt( s) or g ua rd ia n( s) , s til l pe rs ist ; (i i) Th ere i s li ttl e lik e lih oo d th a t th e se c on dit ion s w ill be re me die d at a n e arl y date so that the child ca n be saf ely re t u rn ed t o the par ent(s) or g uardia n(s) in the ne ar future; a nd (i ii) Th e con tinuatio n o f the pa re nt o r g ua

rd ia n a ndc hil d r e la tio ns hip g re a tly diminis hes the child' s chanc es of early integ ration into a safe , stable and pe rmane nt home.-12-

Tenn. Code Ann. §36- 1-113(g )(3) (A).

There is ample evidenc e in the rec ord to te rminate Mother’s pare ntal rig hts on this g round. First, the c hildren came into the Depa rtment’s custo d y o n J u l y 5 , 2000 g iving Mother almost 20 months prior to the filing of the petition to term i n at e to resolve the issues that have pr evente d the children’ s r e tu r n to h e r

. M o th e r h a s d o n e li tt le to ma k e th e s e c h a n g e s to c o mp ly w ith the De pa rt me nt’ s r e qu ir e me nt s. W hi le sh e ha s ma de nu me ro us a lle g a tio ns a g a ins t th e De pa rt me nt, nothing in the r ecor d shows any documentation as to these complaints, let alone a ny action on her part to re solve these differ ence s with the Depa rtment. Howeve r, while Mother has te stified that she cannot g et along with her c asew orker , she i s ab l e t o communicate thr oug h the ca seworke r’s
su pe rv iso r. Wha t th e re c or d d oe s sh ow is that Mo th er has consis te ntl y a ndpe rs ist e ntl y

faile d to resolve the fundame ntal issues which pre vent the re turn of her children and the exist ence of which would put the children at risk for further a buse and ne g lect if they

wer e be to r eturne d to her.

Our re view o f M o ther’s te stimonyconvince s us that she is rea sonably intelligent, y et she
r e p e a t e d l y

f a i l e d t o t ak e t h e n e c e s s ar y s t e p s w h i c h w o u l d l e a d t o t h e r e t u r n o f h e r c h i l d r e n

. In revie wing the record, we are st ruck by her testimony on the first day of trial about how ha

rd she ha d
wo rk e d to pr e pa

re the ho me fo r the c hil dr e n’ s r e turn a ndho w s he ha d a ne tw or k o f s up po rt

to a ssi st with the children’ s return and espec i al l y h o w this support network would help her car e for her children. Ye t i n cr ed ibly , on the sec ond day of trial, less than two months later, she did not have ho us ing , at le a st s he c a nn ot p ro ve that sh e ha d mo re than a n e xpe c ta tio n o f h ou sin g , a nd ha d a g a in chang ed employ

ment

. De s p i t e, M o t h er ’s p o s i t i v e c h ar ac t er i z at i o n o f t h i s t u rn o f e v en t s , i ti s ap p ar ent that Mother had not bettere d her situation. Given the leng th of t ime the children have been in the De pa rt me nt’s cust od y

a ndthe la c k o f p ro g re ss m a de by Mo the r t o c omp ly

wi th the re qu ir e me nts , we find that the evidence is clea r and convincing that the i nadequate conditi ons will persist and that maintaining the pare nt child relationship any longe r g reatly

diminis hes th e ch i l d re n ’s cha nces of
early integ ration into a saf

e, stable a nd perma nent home.

We also note that while her prematurely born child has not been in the De partment’s c ustody for the same leng th of time as her other two c hildren, the re cord i s compelling that this child has extensive medical nee ds, is very susceptible to inf ection, and require s almost around the c lock ca re. Elaine F ink, his foster par ent, who has twe nty -two y ear s of nursing experience , testified that K.W.T is the only

child in her home and that he is a “f ull-time, first in y our life kind of job or pe rson in y our home” who must be che cked on e very few minutes. Ms. Fink further testified that ca

ring for K.W.T. is a “ fu ll d a y all th e ti me” chal le ng e a ndthat sh e c ou ld n ot h olda job a ndc are fo r K .W. T. Th is
c hil d’ s med ic a l con dit ion a ndne e ds , c ou ple d w ith Mo the r’ s h abitua l in abil ity to p ro vid e the ba sic
c are ne e de d b y

ph y sic a lly

he a lth y c hil dr e n, su pp orts the te rm inatio n of Mo the r’ s rig hts a lth ou g h th is child has not bee n in the Depa rtment’s custody

as long as her

other c hildren.-13- Be st I ntere sts of the Children
The juvenile c ourt found that termination of Mother’s pa renta l rig hts w as in the children’ s be st i nte re sts , b a se d o n n ine re a so ns . A n e xami natio n o f e a c h f oll ow s:
1. Th e mothe r h a s f

a ile d to make su c h a n a dju stm e nt o f c ir c ums ta nc e , c on du c t, or conditions as to make it saf e and in the children’s be st interest to be in the home of the mother

. Mother co n t en ds that the Depa rtment did not provide testimony conce rning the childre n’s safe ty in the home or the a djustments Mot her m ad e. She further c ontends that Dr. B erry man re po rt e d th a t Mo th er ha d “ a de qu a te pa re nti ng kn ow le dg e a ndg ive s v e ry app ro pria te a ns we rs to
sc e na ri os in w hic h p are nti ng skill s ar e a sse sse d” a nd that D r. B e rry ma n te sti fi e d th a t Mo the r “ se e ms to car e very

much for he r childre n.”

The re cord r evea ls that Mother’s housing was habitually unstable and unsafe f or the c hildren. She a dmi tte d th a t sh e fe lt c omp e lle d to mov e e ve ry tw o to thr e e mon ths a ndmov e d 1 3 ti me s w hil e the childre n wer e in the De partment’s c ustody . Ironica lly and irre sponsibly , betwee n the trial dates she abandoned the be st housing she had obtained and was basically homeless wit h littl e more than an expecta t i o n o f s uitable housing on the sec ond day of trial. More over, she persistently avoided mental hea lth treatment that could ha ve bee n instrumental in providing a saf e and sta ble home for the childre n.
2. Th e mothe r h a s f

a ile d to e ff

e c t a last ing a dju stm e nt af te r re a so na

ble e ff orts by available so ci al s ervices ag encie s for such dur ation of time that lasting adjustment does not rea sonably appea r possible.

Mother conte nds that rea sonabl e eff orts wer e not made by

the Depa

rtment and that the
c a se wo rk e r e rr on e ou sly

tho ug ht s he wa s r e lie ve d o f he r dut ie s. F urthe r, Mo the r a sse rt s th a t sh e did in fac t obtain stable hou s i n g and that the c asew orker did not even visit Mother’s “improve d” h o u s i n g.
The re cord shows that Mother exp e rie n c e d c o n f li c t w it hh e r c a s e w o rker , Ms. By ers; howe ver, it also shows that s h e h ad an excellent re lationship and reg ular c ontact with the ca seworke r’s
su pe rv iso r, Ms. Go od wi n. Whate ve r d if fi c ult ie s o r c on fl ic ts m a y

ha ve e xiste d, Mo the r h a d a mpl e tim e to re so lve the se iss ue s and /or se e k r e lie f f

ro m th e c ou rt , y e t th e re is n o e vid e nc e of a ny e ff orts by Mo the r t o r e so lve he r d if fi c ult ie s w ith he r c a se wo rk e r o the r tha n c om mu ni cat ing dir e c tly wi th the su pe rv iso r. Mo the r m ov e d o ft e n wh ic h imp a ir e d th e De pa rt me nt’ s a

bil ity to a ssi st h e r. Ad die DeGr aphenr eed w ith Homemake r S ervic es t estified that at the re quest of the De partment he r ag ency attempted to provide service s to Mother and that even thoug h Mother wa s alway s g iven notice of the
ne xt ap po int me nt the re we re so ma ny no -sh ows by Mo the r that th e a g e nc y c los e d it s f

ile . M s. Deg raphe nree d further

testified that Mother’ s file with Homemake r Service s was close d andT he r ecor d re vea l s t hat o n one o cca s i on t he l andl ord was obser ved padl ocki ng t he do or beca us e M ot her ha d 5
faile d to p a y re n t.
-14- re- opened at least tw ice due to Mother’s history of “no- shows,” cancelled a ppointments, and
u n an n o u n ce d m o v es t o d i ff er en th o u s i n g. 5

3. A cha ng e of c are t ak er s and phy sical environme nt would likely have an adver se af

fec t on the children’ s emotional and psy cholog ical condition.

Mo the r ar g ue s tha t the e vid e nc e sh ow e d tha t the c hil dr e n love the ir mothe r, are bo nd e d to her, and that there was no proof that returning the childre n to her would c ause the m harm.
Joy c e B ri e ho f, wh o s e rv e d a s a fo ste r p are nt f

or tw o of the c hil dr e n te sti fi e d th a t on the fi rs t day the children arrived one child threw 23 tantrums in one day and throug h consistent discipline, diag nosis and proper

medication this child has improved sig nificantly . The other child who was quiet and wi t h d rawn was diag nosed with Attention Defic it Hypera ctivity Disorder and is now
rec eiving medication. Ms. B riehof te stified that this child was sever ely defic ient in rea ding skills but that throug h consistent eff orts to shore up these wea knesses he has made A’s and B’ s and the honor roll twice. At trial Ms. Bri eh o f was a sked, “H ow important do y ou think stabili ty is to them [ the
c h il d r e n ]?’ T o w h ic h s h e r e p li e d , “ E xtr e me ly w ith th e s e c h il d r e n

. I ’ v e a lw a y s been tha t ty pe pers o n al i t y

. I eat dinner at the same time every day . You know, y ou g o to bed at the sa me time. That is probably the one thing that has made these c hildren improve so much is the c onsistency of our routine.”

4. The mother ne g lected the children w hile they wer e in her

car e. Mother does not dispute that the children wer e neg lected, but a rg ues that there was no finding of neg lect as to he r pre maturely born child.

Whi l e h e r p r e m a t u r e l y b o r n c h i l d m a y n o t h a v e b e e n n e g l e c t e d , t h e c h i l d w a s n e ve r i n Mo the r’ s care be c aus e the De pa rt me nt obt a ine d cu sto dy up on the c hil d’ s r e le a se fr om the ho sp ita l. The De partment’s pe tition for emerg ency rem o v al wa s grante d based on the child’s very serious medical c ondition, the previous history of negle ct wit h respe ct t o Mother’s other two children, a nd Mo the r’ s f

a ilu re to r e so lve re qu ir e me nts of the pe rm a ne nc y

plans

. 5. The mother’ s mental and/or e mo t i o n al s t at u s would be detrimental to the children and would prev en t the mother fr om effe ctively providing safe and sta ble c are a nd su pe rv isi on fo r the c hil dr e n. She ha s si g nif ic a nt m e nta l he a lth dis or de rs fo r w hic h s he re fu se s tr e a tme nt. Mother princ ipally

arg ues that she ha d completed a fift ee n hour par enting class, attende d individual therapy

and had ma de an a

ppointment for a psy chiatric evaluation.-15-

Dr. B erry man desc ribed Mother ’s prog nosis as g uarde d and stated that some improvement
co u ld b e e xp e c te d , b u t th a t imp r o v e me n t w a s b a s e d o n M o th e r p ar ti c ip a ti n g in thera py . Dr. Be rryman testified that Mother did not follo w t h ro ug h to complete her assessment and that she appea red “ resig ned and unha ppy ” whe n i n d ividual counseling and par enting classes w ere rec ommended. The rec ord also re veals that Mother had many

excuses as to why

she could not attend ther apy

for a lmost t wo y ear s but ir onically she cla ims to have made pr og ress be tween trial dates, thoug h this so-called prog ress wa s unsubstantiated.

6. The mother ha s not paid child support consistent with the child support g uidelines promulg ated by DCS pursuant to T.C.A. § 36-5-101.

Mother ac knowledg es that the juvenile c ourt is corre ct on this point, but she ar g ues that the court should have taken into ac count the fa ct that the re fer ee a llowed Mother to deviate from the g uidelines and that Mother provided insura nce f

or her children.

Whil e the De partment failed to prove that Mother willfullyfailed to support the childre n, as d i s cu s s ed ea rl i er , h erfa i l u re t o s u p p o rt , wi l l fu l o r n o t , i s re l ev an t as a b es ti n t er es tfa ct o r. T h o u gh the evidenc e wa s insufficient to show willfulness, Mother’ s testimonyas to why s h e had made nothing more than a superf icial attempt to support her sick child is indicative of her immaturityand irresponsibility . Another tra g ic irony in this case is that the alleg ed benef icial chang es Mother ma de betwee n the two trial date s, which we re pur portedly to better he rself f

or the be nefit of he r childre n, we re us e d b y

Mo the r a s a n e xcu se fo r w hy sh e sto pp e d p a y ing su pp ort f or A. M. T. a ndZ .T .R.

7. Th e mothe r ha s no t de mon str a te d that sh e ha s a c qu ir e d the skill s to ma int a in a cle an and he althy

living envir onment for the c hildren.

Mo the r c on te nd s th a t a

c a se wo rk e r d id v isi t th e ho me a ndfo un d n o p ro ble m w ith c le a nli n e ss, and that the De partment’s f ailure to further inspec t the home should not be held ag ainst her.

W h i l e a c a s e w o rk e r

d i d v i s i tM o t h e r ’ s h o m e o n J u n e 2 , 2 0 0 3 , a n d f o u n d i tt o b e s a n i t ar y, Mother inexplicably

abandone d that residenc e and had no housing by the sec ond day

of trial. She had little more than the e x pectation of obtaining public housing in Colum bia, Tenne ssee. Ms. By ers, Mother ’s ca seworke r, wa s asked:
Q. One final question. Given all the information y ou have, w hich includes y our ex p er i ence working with [ Mother], the testimonyy ou’ve he ard f rom Dr. B e rr y man a n d h e r

r e p o r t, a n d th e p a s t h is to r y th a t y o u k n o w ab o u t [ M o th e r ], if she had - - if her home today was just clea n, well furnishe d, perf ect, r eady fo r a Ba rb ara

Walter’s spec ial, would y ou have c oncerns that two or three months from now it might go back to the way things we re w hen the c hildren
came into care ? A. Yes, I

would.-16-

Q. An d w hy

wo uldy ou be c on c e rn e d a bo ut that? A. F ro m w or

kin g the c a se , e ve n w he n s he wa s at som e of the oth e r a dd re sse s, lik e the Di c ke rs on Roa d a dd re ss, the re we re pr ob le ms that w e re re po rt e d to
m e t h a ts h e d i d n ’ tk e e p t h e tr a i l e r a s c l e a n a s s h e s h o u l d a n d s h e h a d o n ly been there a few wee ks and she wa s there by herse lf. And Mr. – the g uy that she lived with in Ashland C ity , when I spoke with him, he informed me that his iss ue s w ith[Mothe r], the ir arg ume nts ste mme d fr om he r no t w a nti ng to
c le a n u p b e hin d h e rs e lf

a ndtho se ty

pe iss ue s. So I

do ha ve a con cern that, y ou know, she may clea n it up initially to g et t hings the way we would like to see it and then it’ll g o back to the situation.

8. Th e mothe r h a s n ot d e mon str a te d th a t sh e ha s a c qu ir e d b ud g e tin g skill s su ff ic ie nt t o enable her to a dequate ly

car e for her c hildren.

Mo the r a rg ue s th a t sh e ha d le arn e d b ud g e tin g skill s fr om a frie nd a nd fr om the Me nta l H e a lth Co-op, and that she ha d furnished a trailer f or the c hildren’s re turn.

Whil e Mother testified that she had alleg edly learned budgeting skills from a f riend a nd from
c la sse s at th e Me nta l H e a lthCo- op , n o o ne te sti fi e d to c or ro bo rate he r t e sti mon y . M oreove r, thi s claimed enhance ment of skills was contra dicted by her latest ill-advised eff

orts to obtain differ ent housing. A ll she acc omplished from that eff ort was the loss of the m o st suitable housing she ha d obtained in y ear s and, ironica lly , y et another excuse for not pa y ing c hil d support. I f she attended classes a nd rec eived budg eting advice from a f riend, i t is appare nt she failed to a pply what she learned.

9. K.W.T. continues to need intensive, round-the-c lock ca re by a tra ined profe ssi o n a l. T h e mo th e r d o e s n o t p o s s e s s th o s e s k il ls , a n d , e v e n if s he
a c qu ir e d th e m, s he c ou ld n ot p ro vid e the c on stant ca re K. W.T . r e qu ir e s w hil e a de qu a te ly

c ari ng fo r A .M .T . a ndZ .T .R.

Mother ar g ues that this finding is egr eg ious beca use any single mother wit h three children, and one of

them very

ill, would be unable to par ent. She arg ues that she demonstrated that she wa s learning w hat was r equire d to car e for the sick child and w as pre paring for his re turn.

Whil e we acknow ledg e that she testified impressively and passionately about her sick c hild’s medical history and needs, the rec ord is c onvincing that Mother had not car ed for this child and had ha bitua lly faile d to pr op e rl y c are he r oth e r tw o c hil dr e n. What is e vid e nt i s th a t Mo the r i s r e a so na bly intelligent, howe ver, due to her inability to corre ct funda mental def icienci es i n car e g iving, the information she lea

rned r eg arding K.W.T.’s needs ha s limi ted, if any , benef it for s h e has de mon str a te d th a t sh e c a nn ot p ro vid e app ro pria te care for he r f a mil y on a su staine d b a sis

. Recog nizi ng her sick c hild’s medical nee ds and fr ag ile health, it would be ludi crous to believe that sh e wo uldre nd e r the re qu ir e d c are on a su staine d b a sis

.-17-

Having revie wed a ll nine fac tors found bythe juvenile court, we find c lear and convinc ing evidenc e that termination of Mother’ s pare ntal rig hts are in the be st interests of all three children.

There fore , we r ever se the juvenile c ourt’s finding of abandonment, b u t af f ir m t h etermination of Mo the r’ s p are nta l r ig hts on a ll o the r g ro un ds

. Costs of appeal a

re a ssessed ag ainst Mother.

___________________________________ FRANK G. CLEMENT, JR ., J UDGE