### IN THE COURT OF APP EALS OF TENNESS EE AT JAC KSON A ssi gne d O n B ri ef

s M ay 7, 200 9
IN TH E M A TT ER

OF : A
. L. B, d

/o/ b 09/06/ 1998 , M
. L. B. , Jr
. , d /o/ b 12/ 24/ 2000 , an d M
. L. B. , d

/o/ b 04/ 19/ 2002

Direc t Appeal from the Juvenile Court for Shelb y County No. P2010 Her bert J. Lane, Special Judge

No. W2008-02696-C OA-R3-P T - June 30, 2009

Father a ppeals the tria l court’s judg ment terminating his parenta l r ights. The trial court f ound that the father ha d committed sever e child abuse , that the father fa iled to comply with the obligations and responsibilities outli ned in the per manenc y plans, and that conditions w hich led to the remova l of the childre n still persisted. We af firm.

Te nn. R . A pp. P . 3 App e al a s o f R igh t; Judg me nt of th e Juv e nileCo ur t A ff

ir me d; and Rem anded

D AVI D R. F ARMER , J., delivere d the opinion of the court, in which H OL LY M. K I RBY , J. and J. S TE VE N S TA FF O RD , J., joined. W. Ray Gla sgow, Memphis, Tennesse e, for the Appellant, M.L.B., Sr.

Rob e rt E. Coo pe r, Jr ., At torne y G e ne ra l and Re po rt e r, Mic ha e l E. Moor e , So lic ito r G e ne ra l, andJil l Z. Grim, A ssistant Attorney Gene ral, for the Appellee , State of Tenne ssee, De partment of Children’ s Service s.
OP IN ION
Background /P roce dural Hi story

This case s involves the termination of pare ntal rig hts r eg arding three children, A .L .B., bor n Se pte mbe r 6 , 1 99 8, M. L .B ., bo rn De c e mbe r 24, 20 00 , an d M.L .B ., bo rn Ap ri l 19 , 2 00 2 ( c oll e c tiv e ly “the children”) . On August 22, 2003, the children’ s materna l gr andmother pe titioned the court for custody of the thre e childre n alleg ing that their mother, S.D.C. (“Mothe r”) , was a substance a

buser about to be inca

rce rate d and wa s u n ab l e t o p ro vide ade quate c are or super vision for the childre n. On J anuar

y 21, 2004, the childre n’s pater nal g randmother

intervene d and eve ntually the t h ree children w ere place d with her. On January 11 , 2 0 07, howeve r, the Te nnessee Depa rtment of Children’s Service s (“DCS”) f ile d a petition to modi fy

the protec tive custody

order . The pe tition to mod if y a ll e g e d th a t th e c h il dr e n w e r e d e p e n d e n t an d n e g le c te d an d s o u g h t th a t th e children be place d with the state.F a th e r in d ic a te d th a t t h e p e rp e tra to r w a s w ith th e sh e riff ’s o ff ic e in so m e c a p a c ity

. 1

-2- The ba sis upon which DCS filed the petition to modi fy custody was the se x ual abuse of A.L .B. The state pre sented proof at trial that on J anuar

y 10, 2007, A.L .B c omplained at school that it wa s painful to use the r estroom. A.L .B. w as re fer red to a g uidance counselor, who discovere d that A.L .B. had sores around her vag ina. The g uidance counselor r eporte d the condition to DCS and the M em p h i s Police Depa

rtment. A.L .B. a lleg ed that a f amily friend se x ually

abused he r while he r mother watched. The trial court f ound that M o ther a cce pted money from the pe rpetrator. The children’ s fathe r, M.L .B., Sr. (“F ather ”) a dmitted that A.L .B. pr eviously told him about the abuse. Father told DCS that he and Mother g ot into an argument over the abuse, but he did not approa ch authorities over

the situation beca

use he w as af

raid of going back to jail. Father did not, howeve r, 1 prohibit Mother from taking the kids a fter he lear ned of the abuse. At the time of the initial custody h ea ri n g M o t h er

h ad b ee n cr i m i n al l y ch ar ged wi t h fa ci l i t at i n g t h e rap e o f ach i l d

. Af t er t h e h ea ri n g, she pled guilty

and is curr ently

servingeig ht y ear s in prison.

On May 30, 2007, the juvenile court judge adopted the finding s and rec ommendations of the juv en i l e re fe ree and de termined that the c hildren we re de pendent a nd neg lected. A mong othe r things, the juve nile ref

ere e found that Mother, Father, the children’s mate rnal g randmother , and the pater nal g randmother

committed severe child abuse a s it is def ined in Tennesse e Code Annotated S ec t i o n3 7 -1 -1 0 2 (b )( 2 1 )( C ). As t o Fa t h er , t h e j u v en i l e r ef er ee fo u n d

t h e f o l l o wi n g:
Th a t th e fa

the r’ s f a ilure to p ro te c t hi s c hil dr e n a pp ears to be the re su lt o f h is diminuti ve [si c] me ntal capa city and use of drug s and his r eliance o n ad v i ce from oth e r f a mil y me mbe rs rathe r t

ha n f ro m a me nta l de pr a vit

y on his pa rt . A s su c h it may be appr opriate to a llow supervised visitation for him with said children; howeve r, any

plan to restore to him custody s h o u l d be base d upon a sound mental and socia l examination by experts and a plan which protec ts said children fr om any unsupervised c ontact with other f amily members . . . . That in workingwith the fathe r the Te nnessee Depa rtment o f C hildren’s Servic es needs to take into account his re fusal to believe his daug hter’s a lleg ations of sexual abuse by other fa mily members. Whether o r n ot these alleg ations are true, they
cre ated a leg itimate gr ound for pr otection which the f ather fails to rec og nize. Ad dit ion a lly , th e fa

the r a c kn ow le dg e s [hi s] in a bil ity to p a ss a dr ugte st d ue to h is u se of marijuana

. The trial c ourt rec ommended that the c hildr en b e placed in the custody of DCS and that DCS be pr oh ibi te d f

ro m pl a c ingthe c hil dr e n w ithany of Mo the r o r F a the r’ s rel ati ves. Th e c ourt a lso appointed a spe cial advoc ate to conduc t an investig ation.

Whil e Mother w as inca

rce rate d, DCS entered into two perma nency plans with F ather . The fi rs t pl an, date d Janu ary 26 , 20 07 , re qu ir e d F a the r to fi nd sta ble ho us ing , a

sta ble inc ome , c omp le te an alc ohol and drugassessment, and at t en d t h erapy to addre ss the children’ s abuse a nd ang erA u th o rities a rr e ste d F a th e r f o r in d e c e n t ex p o su re a fte r th e y d isc o v e re d F a th e r a n d M o th e r m a stu rb a tin g in 2

t h e j a i l w h i l e Mo t h e r w a s i n c a r c e r a t e d a n d a w a i t i n g t r i a l o n t h e f a c i l i t a t i o n o f t h e r a p e o f

a c h i l d c h a r g e s

. F a t h e r c l a i ms t hat hi s r el at i ons hi p w i t h M ot her ha s s i nce c ea s ed.
-3- mana g e me nt. DC S e nte re d a no the r p are nti ngpla

n w ithF a the r o n F e br

ua ry 7, 20 08

. F a the r w a s to
c omp le te the fo llo wi ngta sk s: s up e rv ise d v isi tatio n, famil y the ra py , a lc oh ol a

nd dr uga sse ssm e nt,
me nta l he a lthe va luatio n, a nd ob ta in f ina nc ia l me ans to s up po rt

his c hil dr e n. F a the r s ig ne d b oth plans, and initially

exhibi ted a willing ness to comply with the terms of the pa

rentingplans. Monica Gra y (“Ms. Gr ay”), a family service s worke r with D CS, testified that Father wa s orig inally involved with the children’ s education through Y outh Village s, wher e he participate d in most of the sessions held at school. Ms. Gra

y also noted on the F ebrua ry 7, 2008 perma

nency p l an t h at Father wa s involved with the children’ s educa tion, that he was seeking employ ment, that he wa s enthusiastic, and that his disciplinary

sty le was g ood and wor

ked for the childre n.

Father has not, howeve r, completely complied wit h the t erms of either pa rentingplan. Father
never attended a

n alcohol and dr

ug assessment; he wa s not e mploy ed at the time of the hea ring and lived at that time w ith a fema le friend of his in a one or two bedroom apar tment w ith thre e other children. F ather

also continued his re lation s h i p wi th Mother eve n afte r Mother w as ar rested f or fac ilitating the ra

pe of his own child. Both F ather and the paterna l gr andmother ha d stated that they 2 kn e w that th e a

bu se wa s o c c ur

ri ngbu t c ou ld n ot e xpla in why the y did no t r e po rt

it.

On Ap ri l 10 , 200 8, DC S f

ile d a pe tit ion to t e rm inate Mo the r a

nd F a the r’ s p are nta l r ig hts

. At the tr ia l, M s. Gr ay

te sti fi e d th a t D CS r e fe rr e d F a the r t o L e B onhe ur ’s Ce nte r fo r C hil d a nd Pare nts CCP (“CCP ”) , South Memphis All iance , innovative counse ling, a nd Br anche s of L ife for
e mpl oy me nt r e fe rr a ls. Ms. Gr ay te sti fi e d th a t a lth ou g h Fathe r h a s ta ke n a dv anta g e of

DC S’ int ro du c tor y se rv ic e s, he ha d n ot c omp le te d th e CCP e va luatio n or South Me mph is Al lia nc e ; no r d id Father attend innovative counse ling or obtain stable housing or employ ment. Ms. Gra

y testified that DCS did no t t re at Fa

ther a s though he had a me ntally diminis hed ca

pacity beca use there was no proof that h e actua lly

had a diminished ca

pacity . She also testified that DCS did not help Father lear n any job skill s and it did not make any eff orts to house Father be cause Father claimed that he
c ou ld o bta in h ou sin g . B ra nc he s of L if

e re fe rr e d Fathe r t o s e ve ra l di ff e re nt p la c e s f

or e mpl oy me nt. F a the r c on ta c te d th e se e mpl oy e rs bu t w a s st ill un a ble to f ind e mpl oy me nt.

Denise Hig g ins ( “Ms. Hig g ins”) testified that she was the c ourt appointed spec ial advocate. She testified that she c onducted a home study at the pater nal g randmother ’s house beca use that wa s wher e F ather

resided at the time. She had to call thre e or four times to schedule a visitation. After Ms. Higg ins ex plained her role to F ather , he fa iled to even warn her that ther e wa s a fe male smoking in his bedroom, and whe n they went in “ [t he unclothed fema le] was laying on the bed like, ‘H ere I
a m.’ ” On c e F a the r mov e d int o his ow n ho me , Ms. Hi g g ins ha d a dif fi c ult tim e g e tti ngthe a dd re ss from him. Eventually , th e pater nal g randmother

took Ms. Higg ins to the address, whic h was dif fe re nt t ha n th e on e that F a the r h a d g ive n h e r. Th e re wa s n o f ur nit ur e in the ho us e , a

nd the lig hts
we re no t on ; it

wa s si mpl y

a ba re ho us e . F a the r e xpla ine d to he r that he did no t in te nd

to m ov e in-4-

to the house phy sically

until he had custody of t he childre n. The paterna l gr andmother c onfirmed this.

F a the r h a d to ld M s. Hi g g ins se ve ra l ti me s th a t h e ha d jo b in te rv ie ws . Sh e c a lle d o nc e to speak to the paterna l gr andmother dur ing the time she had been t old Father had a job i nterview , and Father a nswere d the phone. Ms. Gr ay testified t h at Fa ther only worke d one tempora

ry job for probably around three- months. I n 2007 and 2008, every time Ms. Higg ins went to Youth Villag es on the date that Fathe r told her that he wa s s cheduled to have visitation with the children, F ather
never came

.
Father testified, on his own behalf, opposing t he termination of hi s pare ntal rig hts. He state d that he found out t h at h i s d aughter was be ing a

bused while he was inca

rce rate d. When he was rele ased a round J une 16, 2005, he confronted Mother, and he te stified that he did not think that the
a bu se c on tin

ue d. F a the r te sti fi e d that he wo rk e d wi th Pr ior ity Pla c e me nt a t H e rs he y ’s fr om Augus t to D e c emb er, bu t he wa s la id o ff wh e n H e rs he y ’s dr op pe d th e c ontr a c t. F a the r t e sti fi e d th a t he is
c ur re ntl y liv ingin h is own ho me and that he did

no t f ur nis h th e ho me be c a

us e Ms. Gr ay

tol d h im that DCS would provide furniture for the house if he g ained c ustody of the children. He te stified that he attende d the CCP evaluation prog ram a nd the fatherhood prog ram, a nd went to B ranc hes of L ife, bu t he ne ve r r e c e ive d n oti c e to r e tur n f or any fu rt he r r e qu ir e me nts

.
F a the r a lso te sti fi e d th a t he ha s f our o the r c hil dr e n. He is pa ying$1 85 a

mon th i n c hil d
su pp or t f or o ne c hil d. He pa

y s a pp ro xima te ly

$5 00 .0 0 a

mon th i n r e nt. F a the r t e sti fi e d th a t he is
no lon g e r u sin g dr

ug s. He state d th a t he qu it s mok ingmari jua na a pp ro xima te ly

4 mo nth s p ri or

to the cour t p ro ceeding s, and that he doe s not drink at all. Father a dmitted that he does smoke ap p r o xim a te ly 2 p a c k s o f c ig ar e tt e s a w e e k

. F a th e r h a s n o t, h o w e v e r , u n d e r g o n e any drug assessment to conf

irm this testi mony

. Father also testified that he has be en ea rning money

under the table stockingand he w orks tempora ry jobs through L abor Rea dy and that he buy s food stamps from
so me on e

. F a the r e xpla ine d that he g e ne ra lly vis ite d the c hil dr e n tw ic e a mon th f ro m Jan ua ry up un til June , bu t he a dmi tte d that fr om June un til Oc tob e r the re wa s a fo ur mon th g a p wh e n h e did

no t vi sit t h e c h i l dr e nb e c a

u s e h e h a d

a n e wb o r nb a b y. The only proof as to the children’s curr ent conditi on came from Ms. Gra y . She testified that the childre n have be en in state custody since DCS filed for a modification in custody on J anuar

y 10, 2 0 0 7 , an d th e y ar e c u r

r e n tl y in a Y o u th V il la g e s f o s te r h o me

. Sh e e xp la in e d th a t th e c h il dr en ar e doing w ell in foster c are , and DCS is in the process of ide ntify ing an adopti ve plac ement for the children.

After trial, the juvenile c ourt enter ed an or der te rminating both pare nts’ pare ntal rig hts on October 27, 2008. T h e co u rt found by clea r and c onvincing evidenc e that F ather and Mother committ ed s ev er e child abuse ag ainst A.L .B. The trial court a lso found by clea r and c onvincing evidenc e that F ather

failed to co m p l y wi th the obligations and responsibilities outl ined in the perma nency plans, that the childre n have be en in the custody of DCS for more than six months, and that the conditions which led to the c hildren’s re moval still persist or other conditions persist which-5-

in all probability

would cause the ch i l d re n to be subjecte d to further abuse a nd neg lect. As a

re pe rt ine nt t o F a the r’ s a

pp e a l, t he c ourt ma de the fo llo wi nga dd iti on a l f ind ing s: 12. Pursuant to T.C.A. § 36-1-113(g )(2) , [Father] failed to c omply with the ob lig a tio ns and

re sp on sib ili tie s o utl ined in the pe rm ane nc y pla ns , th ou g h s a id obligations and responsibilities were r atified by the Court as re asonable and re lated to t he re a so ns ne c e ssi tatin g fo ste r c are

. Mo ni ca G ra y , [a De pa rtme nt o f C hil d Se rv ic e s F a mil y

Se rv ic e s w or

ke r] t e sti fi e d a s to the c re a tio n, g oa l and re qu ir e me nts of the ini tial perma

nency plans for the children de veloped on January 26, 2007 and Fe bruar y 7, 2008 that require d the father to attend all visitations; obtain an alc ohol
an d dr u g a s s e s s m e n t an d m e n t a l h e a l t h e v a l u a t i o n ; an d a c h i e v e f i n an c i a l s t a

b i l i t y. The De partment made rea sonable e ffor ts to as s i s t t he father whe n the childre n enter ed c u s t o d y by

ref err ing the fathe r to L e B onheur Cente r for Children and Parents; Inno v a

ti v e Co u n s e ling ; Bra

nches of L ife; and South Memphis Alliance. The fathe r sig ned the pe rmane ncy plans in ag ree ment and sig ned the ter mination of pare ntal rig hts criteria . Neve rtheless, the [Fa t h er ] failed to comply with the pe rm ane nc y

pla ns in t hat, a mon g ot he r t

hin g s, he fa ile d to c omp le te the CCP
e v a l u a t i o n o r a l c o h o l a

n d dr u g t r e a t m e n t , an d h e f

a i l e d t o o b t a i nf

i n an c i a l s t a

b i l i t y. The fathe r attended thera py with G reg Motley , Br anche s of L ife; howeve r, Mr. Motley rec ommended that the children not be place d with the fathe r until he obtained employ ment and prope r housing , phy sical and se x ual abuse t ra i n ing, a lcohol and drugtraining , pare nting e ducation, ang er ma nag ement tra ining, f

inancial manag ement, and pe rsonal hyg iene tra ining. . . .

13. Pursuant to T.C.A. § 36-1-113( g )(3) (a) , [t he children] have been in the custody of the State of Tenne ssee, Depar tment of C hildren’s Servic es for more than six (6) mon ths pr e c e din g the fi lin g of thi s p e tit ion , a

nd the c on dit ion s w hic h le d to
re mov a l st ill pe rs ist

and oth e r c on dit ion s e xist w hic h in a ll p ro ba bil ity wo uld c a us e the childre n to be subjecte d to further abuse and neg lect and which, there fore , preve nt the c hil dr e n’ s r e tur

n to the c are of Re sp on den t [F a the r]. F ur the r, the re is l itt le likelihood that these conditions will be reme died at an early date so that the c hildren can be safe ly

returne d to Respondent in the near future; the c ontinuation of the leg al pa re nt a nd child r e latio ns hip g re a tly dim ini sh e s th e c hil dr e n’ s c ha nc e s o f e arl y integ ration into a saf

e, stable a

nd perma nent home; and c ontin u at i o n o f the leg al pare nt and child re lationship is not in said children’ s best interest. Said Respondent ha s n ot ma de su c h a las tin g a dju stm e nt as to en a ble the c hil dr e n to be re tur ne d to him safe ly . Co n d i t ions ex ist in t hat the Court found in May 2007 that the Respondent [ F a t h e r ] f a i l e d t o p r o t e c tt h e c h i l dr e na s a r e s u l to f h i s d i m i nu t i v e m e n t a l c a p a c i t y, druguse and depende nce on family ; the fathe r still does not have stable housing and financ ial stability ; he fa iled to complete a me ntal health eva luat i o n or alc ohol and dru g t reatme nt; and

he wa s invo lve d in

a re latio ns hip wi th [M oth e r] at le a st unti l November

2007, though he knew she wa s i n ca rce rate d for f acilitating the ra

pe of their child.-6- 14 . Pur su ant to T.C .A . § 36 -1 -1 13 (i )( 1) -( 7) , te rm inatio n o f p are nta l r ig hts is in the best interest of [the children] in that Respondents [Mot her] and [Fathe r] have fa ile d to make su c h a

n a djust men t of

c ir c ums tanc e [s], c on du c t, o r c on dit ion s a s to
ma ke it sa f

e an d i nt h e c h i l dr e n ’ s b e s ti n t e r e s tt o b e i nt h e i r h o m e s , d e s p i te
rea sonable e ffor

ts by available social service ag encie s for such duration of time that lasting a djustment does not appear rea sonably

possible; and a chang e of care taker s and phy sical environment is l ikely to have a

traumatic e ffe ct on the childre n’s emotional and phy sical condition. Respondent [Mot her] is curre ntly incar cer ated f

or a per iod of eig ht y ear s for fa cilitation of rape and fa cilitation of rape of a c hild, ag ainst her c hild [ A.B .]; she committed brutal sex u al abuse toward the child by permitting W ay

ne L og an to sexually

abuse the child, her da

ug hter, a nd acc epting pay ment for this abuse. [Father] knew of this abuse a nd failed to prote ct the child. [F a the r] c on tin

ue d to vis it a

nd e ng a g e in a

n unla wful ph y sic a l r e latio ns hip wi th [Mot her] at least until November 2007, thoug h he knew she wa s incarc erated for fac ilitating the ra

pe of his own c hild, [ A.B .]. . . . [ Fa t h er ] h as bee n arr ested a nd convicted nume rous times for thef t a nd other crimes.

. . . [Father’ s] use of c ontrolled
su bs tanc e s w ou ld b e de tr ime nta l to the c hildr e n a nd pr e ve nt h im f

ro m e ff e c tiv e ly pr ov idi ngsa fe and sta

ble c are and

su pe rv isi on fo r t he c hil dr e n. Th e c hil dr e n a re in a home with Charle s and Mi ldred Truesdale, with whom the children have bonde d. Denise H igg ins, C o u rt -Appointed Spec ial Advocate, testified that, base d on her inv e sti g a tio n o f t

he fa mil y and the ci rcumstanc e s th a t br ou g ht t he c hil dr e n in to
c us tod y , th e c hil dr e n s ho uld

no t be re tur

ne d to the fa

mil y , a nd it i s in the be st i nte re st of the c hildren to be a dopted.

Issues

As state d in

his br ie f, F a the r r a ise s th e fo llo wi ngtw o is su e s o n a pp e a l:

I

. Whe the r the re wa s cle ar an d co nv inc ing e vid e nc e that con dit ion s tha t le d to the re moval of the c hildren fr om the home per sisted as of th e t i m e of the filing of the termination petition.

I I

. Whether t he evidence presente d to the t rial court established by clea r and c on vin c inge vid e nc e that te rm inatio n o f F a the r’ s p are nta l r ig hts was in the be st interest of the c hildren.

Th e Te nn e sse e De pa

rtme nt of Chi ldr e n’ s Se rv ic e s ( DC S) ph ra se s th e iss ue s o n a pp e a l a s f oll ow s:

I

. Whe the r the juv e nil e c ourt pr op e rl y c on c lud e d that [F a the r] s e ve re ly abused his child by

failing to protect he r.-7-

I I

. Whe the r t

he juv e nil e [co ur

t] pr op e rl y

c on c lud e d th a t [F a the r] w a s in
su bs tanti a l no nc omp lia

nc e wi th th e re a so na

ble ob lig a tio ns of

his pe rm ane nc y

pla ns

.
I I I

. Whe the r t

he juv e nil e c ourt pr op e rl y c on c lud e d that [F a the r] f a ile d to
re me dy the pe rs ist e nt c on ditio ns in his lif e that pr e ve nte d h is children’ s return.

I V. Whether the juvenile c ourt pro p erly conclude d that termination of [Father’ s] parental rig hts was in the best intere st of the childre n.

Stan dard of Revie w
To de pr ive a pa

re nt of his or he r fund a me nta l rig ht to the c us tod y of his or he r c hil d, the State must prove that there is a statutory g round for

terminating the par ent’s rig hts and that termination is in the best interest of the c hild. Tenn. Code Ann. § 36-1-113( c)( 2005). The e x istence of any statut or y ba sis fo r te rm inatio n of pa re nta l ri g hts wi ll su

pp or t the tr ia l c ourt ’s de c isi on to t e rm inate those rig hts. In re M

.L.D. , 182 S.W .3d 890, 894 (Tenn. Ct. App. 2005). Whether a g round for termination has been proved by the requisite standard of proof is a question of law that we r eview de novo with no presumption of corr ectne ss. In re S.M.R. and K. M.R. , No. M2008-01221-COA- R3- PT, 2008 W L4949236, at *5 (Te nn. Ct. App. Nov. 18, 2008)( no perm. app. filed ). A t ri al cour

t must find that there a

re statutory

g rounds for r emoval by

clea r and co n v i n ci n g evidenc e. In re M.L.D. , 182 S.W .3d at 894. To be c lear and convinc ing, the evidenc e must eliminate any substantial doubt and produc e a f

irm conviction as to truth in the fac t finder’ s’s mind. Id. Although the clea r and convinc ing sta

ndard e vidence standard is more exacting tha n the pre pondera

nce of the evidenc e standard, it does no t d emand the c erta inty require d by

the beyond a re asonable doubt standard of revie w. Id.

I n analy zing the lower

court’s judg ment terminating Father’s pa renta l rig hts, we re view the trial court’ s decision de novo upon the re cord a nd presume the corr ectne ss of the trial court’s f actua l fi nd ing s. Te nn . R. App . P. 13 (d ); Fowler v. W ilbanks , 48 S.W .3d 738, 740 (Tenn. Ct. App. 2000). We will not reve rse the tr ial court’s f actua l findings unless they are contra

ry to the preponde ranc e of the e vidence

. Berryhill v. Rhode s , 21 S.W .3d 188, 190 (Tenn. 2000). I f the trial court’s f actua l deter minations are ba sed on its assessment of witness cre dibilit y , this Court will not ree valuate that assessment absent clea

r and convincing evidenc e to the contra ry

. J on es v . G arre tt , 92 S.W .3d 835, 83 8 ( Te nn . 2 00 2) . I f the tr ia l c ourt fa ils to m a ke fi nd ing s o f f a c t, h ow e ve r, our r e vie w i s de novo with no pr esumption of corr ectne ss. Archer v . Archer , 907 S.W .2d 412, 416 (Tenn. Ct. App.1995). On t he other

hand, we revie w the trial c ourt’s application of law de novo w it h n o p r e s u mp tion of
corr ectne ss. Bo wden v . W ar d , 27 S.W .3d 913, 916 (Tenn. 2000) . Simi larly , we r eview mixed qu e sti on s of

law a nd fa c t de novo , with no presumption of corr ectne ss. State v. Thacke r , 164 S.W .3d 208, 248 (Tenn. 2005)

.-8- Anal y sis

Tenne ssee Code A nnotated Section 36-1- 113 g overns the te rmination of par ental rig hts. I t pr ov ide s th a t a

tr ia l c ourt

may te rm inate pa

re nta l r ig hts if

it f ind s th a t te rm inatio n is in t he be st interest of the child and that, by clea r and c onvincing evidenc e, any of the followingg rounds for te rm inatio n e xist:

(2) The re ha s been substantial nonc ompliance by the par ent or guardia

n with the statement of r esponsibiliti es in a pe rmane ncy plan or a plan of c are pursuant to the provisions of title 37, chapte r 2, par t 4; (3) The child has bee n remove d from the home of the par ent or guardia

n by order of a c ourt for a

period of six (6) months and: (A) T he conditions that led to the child’s re moval or other
c on dit ion s th a t in

a ll r e a so na

ble pr ob a bil ity wo uld c a us e the c hil d to be subjecte d to further

abuse or neg lect and that, theref

ore, preve nt the child’s safe return to the c are of the pa rent(s) or g ua rd ian( s) , s til l pe rs ist ; (B ) Ther e is littl e likelihood that these c onditions wil l be
re me die d at an e arl y

date so that th e c hil d c an b e sa fe ly re tur ne d to the par ent(s) or

g uardia n(s) in the ne ar f

uture; and (C ) T he c on tin

uatio n o f t

he pa re nt o r gua

rd ian a nd c hil d
re latio ns hip g re a tly

dim ini sh e s th e c hil d’ s c ha nc e s o f e arl y integ ration into a saf

e, stable a nd perma nent home; (4 ) T he pa

re nt o r gua

rd ian h a s b e e n f

ou nd to h a ve c omm itt e d s e ve re c hil d abuse a s defined in § 37- 1-102, under any prior orde r of a

court or is found by

the court he aringthe petition to terminate par ental rig hts or the petition for adoption to have c ommitt ed seve re c hild abuse ag ainst the child who is the subject of the pe tit ion or a g a ins t any

sib lin g or

ha lf -s ibl ingof

su c h c hil d, or

any oth e r c hil d residing temporar ily

or per manently in the home of such pa

rent or guardia

n[.] Tenn. Code Ann. §§ 36- 1-113(g ) (Supp. 2008). In this case, the tr ial court ter minated Fa

ther’s pare ntal rig hts on the basis that it found clear and convinc ing e vidence of all three of the aboveme nti on e d s tatut or

y g ro un ds

. A. F ail ur e to Re m e dy P e r sis te nt Co ndit ion s On appe al, Father a

rg ues that there was not cle ar a nd convincingevidenc e that conditions that led to the re moval of the c hildren fr om the home per sisted at the time that DCS filed the termination petition. W e note, f oremost, that the trial c ourt terminated F ather ’s par ental rig hts on three separ ate g rounds. To support a pa renta l termination, howeve r, there need be only one statutory g round for

termination, so long a s it has been pr oven by clea r and c onvincing evidenc e. In re D.L.B. , 118 S.W .3d 360, 367 (Tenn. 2003) . I n this case, howe ver, the trial court f ound that Father ha d committed severe child abuse, f ailed to substantially

comply with the pare nting plan-9-

obligations, and that the children ha d been in the state’s custody for more than six months and that conditions ex isted which pre vented the c hildren fr om being returne d to Fathe r’s c are . The tr ia l c ourt ’s fi nd ingthat F a the r h a d s e ve re ly a bu se d A .L .B . a

nd tha t he ha d f a ile d to su

bs tanti a lly comply with the obligations and responsibilities outl ined in the par enting plan would, there fore , be suff icient g rounds upon which to ter minate his pare ntal rig hts, and Father doe s not appea l the se iss ue s.

Neve rtheless, F ather

argues that the c onditions t hat broug ht the children into DCS’s custody no longe r existed at the time that the termination petition was filed. F ather makes two distinct arg uments. First, he c ontends that the initial gr ounds for re moving the c hildren fr om their par ents’ custody

was A.L .B.’ s sexual abuse, and that be cause Mother and the perpe trator of the abuse have sinc e bee n incar cer ated, that those c onditions no l ong er e x ist. S econd, F ather
argue s th a t D CS f

a ile d to make re a so na

ble e ff or ts t o r e un ite the fa

mil y by fa ili ngto t a ke int o c on sid e ratio n F a the r’ s “ dim inutiv e ” me nta l c a pa c ity . We a dd

re ss e a c h o f t

he se argume nts below.

i. P e r sis te nt Co ndit ion s

Father a rg ues that the pe rsistent conditions that led to the removal of the children no longe r exist. Neverthele ss, Tennesse e law pe rmits the termination of par ental rig hts where
[t ]he child has been r emoved f rom the home of the pare nt or g uardia n by order of
a c ourt fo r a pe ri od of six ( 6) mon ths and ; (A ) T he c on dit ion s th a t le d to the c hil d’ s r e mov a l or other
c ondi ti ons th atin a ll r e as ona ble pr oba bili tywould c aus e th e child to b e subject ed to further abuse or neglect and th at, th e r e for e , pr e ve nt th e c hild’ s sa fe r e tu r n t o t he c ar e of t he par e nt (s ) o r gua r dia ns( s) , s ti ll pe r sis t

. . . .
T e n n

. C o d e

. A n n

. § 3 6

- 1

- 1 1 3 ( g ) ( 3 ) ( S u p p

. 2 0 0 8 ) ( e mp h a s i s a d d e d )

. T h e t r i a l c o u rtm ay, the re fo re , te rm inate pa

re nta l r ig hts if

any c on dit ion s p e rs ist

tha t w ou ld c a

us e the c hil d to be
su bje c t to fu

rt he r a bu se or ne g le c t. I

n th is c a se , th e tr ia l c ourt fo un d th a t F a the r i nit ia lly fa ile d to protec t his children. At the time of the he aring , the trial cour t found that Father wa s not financ ially

stable and did not have stable housing . Father ha d not completed alc ohol and drug treatment, and still m aintained a relationship wit h Mother at lea st as late as N ovember 2007 even though F ather

knew that Mother

was inca rce rate d for f

acilitating the ra

pe of the ir child.T h e fo llo w in g e x c h a n g e o c c u rr e d a t t ria l: 3

Q

. A nd w her e have you w or ked i n 2008? A

. T h i s y ear? Q

. Y es. A

. N ow her e, not a s t ea dy j ob. Q

. O t her t han t he on e t hat you ’ r e doi ng , t he s t ocki ng und er t he t abl e? A

. Sho p and Save. Q

. So you t hi nk you’ l l ge t a j ob? I f t he chi l dr en w er e r et ur ned t o you, you w oul d ha ve a j ob? A

. H o p efu l l y , y es. Y es. Q

. H op ef

ul l y, but not f or s ure? A

. I m ea n , I g u ess.

-10- Father a dmitted at trial that his job prospects wer e mer ely hopeful, a

nd not definite. He 3 admitted to his relationship with Mother while she wa s incarc erated, and he admitted that he had not moved into his own li ving spa ce yet and did not have furniture . Upon a thoroug h revie w of the re c or d, we fi nd

that th e re is c le ar a

nd c on vin c inge vid e nc e of

c on dit ion s th a t it

is r e a so na

bly pr ob a ble wo uld c a us e the c hil dr e n to be su

bje c te d to fu

rt he r a bu se and ne g le c t and

that, there fore , preve nt the children’ s return to F ather ’s ca re. It was not nec essar

y that the trial cour

t find that the same c ondition persisted as for which the childre n wer e orig inally remove d from Father’s c are

. ii. Re as ona ble Effor ts to Re unit e th e F am ily

Father a lso argues that, in light of his “ diminuti ve mental c apac ity ,” DCS failed to make
rea sonable e ffor

ts to reunite the fa

mily . Be fore terminating pare ntal rig hts, the court must find that “[r]easonable e ffor

ts have be en made to preve nt the need f or re moval of the c hild from such child’s family

or to make it possible for the child to return home.” Tenn. Code. Ann. § 37- 1- 166(d)( 2)(2005) . Once DCS undertakes to re unify a fa mily , we e mploy

the clea r and c onvincing standard to de termine whe ther DCS’s ef forts have been r easona

ble. In re J

.L.E. , No. M2004- 02133-COA-R3-PT, 2005 WL1541862, at *12 (Te nn. Ct. App. J une 30, 2005). O ur leg islature ha s d e fi ne d r e a so na

ble e ff or ts a s “ the e xer c ise of

re a so na ble c are and

dil ig e nc e by

[DCS] t o provide ser

vices re lated to meetingthe nee ds of the child and the family ,” althoug h the child’s health and sa fety

is the paramount concer

n. Tenn. Code. Ann. § 37- 1-166(g )(1) (2005). The fac tors we c onsider whe n deter mining whe ther DCS has made rea sonable e ffor ts include, among others, the r easons f

or sepa ratingthe par ent from the c hild, the pare nt’s phy sical and me ntal abilities, the resourc es ava ilable to the par ent, and the pa rent’s e ffor

ts to remedy

the situation, and the dur ation of the pa rent’s r emedial e ffor

ts. In re C.M.M

. , No. M2003-01122-COA- R3-PT, 2004 WL 438326, at *7 (Te nn. Ct. App. Mar. 9, 2004).

“Rea sonable e ffor

ts entail more than simply providing pare nts with a list of service providers a

nd sending them on their wa y . The De partment’s e mploy ees must use their superior insig ht and trainingto assist parents with the problems the Depa rtment has identified in the pe rmane ncy plan, whethe r the pa

rents ask f

or-11-

a ssi sta nc e or no t.” Th e De pa

rtme nt i s n ot r e qu ir e d to make “ He rc ule an” e ff or ts, howeve r, and “ the re medial re sponsibili ty does not rest solely

on the Depa

rtment’s sh ou lde rs .” Pare nts a lso are re qu ir e d to “ make re a so na ble e ff or ts t o r e ha bil itate themselves and to r emedy the conditions that require d them to be sepa rate d from their childre n.”

In re T.L. N. , No. M2008-011510COA-R3-PT, 2009 WL152544, at *6 (Te nn. Ct. App. J an. 21, 2008) ( no perm. app. filed ) ( qu o t i n g In re C.M.M

. , N o

. M 2 0 0 3

- 0 1 1 2 2

- CO A

- R3

- PT , 2 0 0 4 WL 438326, at *7 (Te nn. Ct. App. Mar. 9, 2004)) (interna l citations omit ted).

DCS is not require d to make re asonable eff orts to reunite the f

amily , howeve r, whe re a pare nt has subjected the child or anothe r child re siding in the home to a g g ravated circ umstances. Tenn. Code Ann. § 37- 1-166(g )(4) (A). Such c ircumstance s include aba ndonment, abandonme nt
o f a ni n fa n t , aggr av at edas s au l t , aggr av at edk i dn ap p i n g, es p ec i al l y aggr av at edk i dn ap p i n g, a g g ra vate d c hil d a

bu se and ne g le c t, a g g ra

vate d s e xua l e xploi tatio n o f a min or , e sp e c ia lly ag g ravated sexual ex ploitation of a minor, ag g ravated ra pe, ra pe, ra pe of a child, incest, or se vere child abuse, a s defined a

t Tennesse e Code Annotated Section 37-1-102. T enn. Code. Ann. § 36- 1- 10 2( 9) ; see I

n re C.M.M. , 2004 WL 438326, at *6 n.19. Once ag ain, we e mphasize, that the trial court ter

minated Father’s pa

renta l rig hts on mult iple g rounds. One of these g rounds was “seve re c hild abuse.” In this case, we find no merit to Father’s a rg ument that DCS was require d to make re asonable eff

orts to reunite the f

amily

.
B. Best Intere st of the Child ren
Once the trial cour

t has found that g rounds exist for the te rmination of par ental rig hts, the trial court must also find that termination is in the best intere st of the child. Tenne ssee Code Anno tate d p ro vid e s a

lis t of no n- e xclu siv e fa c tor s f

or the tr ia l c ourt

to c on sid e r: (1) Whether

the par ent or guardia

n has made such an a djustment of
c ir c ums tanc e , c on du c t, o r c on dit ion s a s to make it s a fe and in t he c hil d’ s b e st interest to be in the home of the par ent or guardia

n; (2) Whether

the par ent or guardia

n has fa iled to effe ct a lastingadjustment afte r re asonable eff

orts by available social ser

vices a g encie s for such dur ation of time that lasting a djustment does not reasona bly appea r possible; (3) Whether

the par ent or guardia

n has maintained r egular visitation or other c ontact with the child; (4) Whether

a mea ningf ul relationship has otherw ise bee n established betwee n the par ent or guardia n and the c hild; (5 ) T he e ff

e c t a c ha ng e of c are take rs and

ph y sic a l e nv ir on me nt i s li ke ly to have on the child’s emotional, psy cholog ical and me dical condition; (6) Whether

the par ent or guardia

n, or other pe rson re siding with the pare nt or g uardia

n, has shown bruta lity , phy sical, sexual, emotional or-12-

psy cholog ical abuse , or neg lect towar d the child, or a nother c hild or adult in the family or household; (7 ) Wh e the r t

he ph y sic a l e nv ir on me nt o f t he pa re nt’ s o r gua

rd ian’ s h ome is healthy and saf e, whe ther ther e is criminal ac tivity in the home, or whe ther there is such use of a lcohol or controlled substanc es as may rende r the pa

rent or g uardia n consistently

unable to ca

re f o the child in a saf

e and sta ble manner ; (8) Whether

the par ent’s or guardia

n’s mental and/or

emotional status would be detr imental to the child or pre vent the par ent or guardia n from eff ectively providing safe and stable c are and super vision for the child; or (9 ) Wh e the r t

he pa re nt o r gua

rd ian h a s p a id c hil d s up po rt c on sis te nt w ith the child support g uidelines promulg ated by the depa rtment pursuant to § 36-5- 101.

Te nn . Co de Ann. § 3 6- 1- 11 3( i) (S up p 2 00 8) . In d e te rm ini ngwh e the r t e rm inatio n is in t he be st interest of the child the trial cour t must l ook to the child’s, not the par ent’s, per spective. In re Audrey S. , 182 S.W .3d 838, 878 (Tenn. Ct. App. 2005). T he trial c ourt found that F ather continued to visit and eng ag e in a phy sical re lationship with Mot her until at lea st November 2007 even thoug h he knew

she wa s incarc erated for f acilitating the ra

pe of his own c hild. I n addition, Father ha s been a

rre sted and c onvicted numer ous times for theft a nd other c rimes, and his use of
c on tr oll e d s ub sta

nc e s w ou ld b e de tr ime nta l to the c hil dr e n a nd pr e ve nt h im f

ro m e ff e c tiv e ly pr ov idi ngsa fe and

sta ble c are and

su pe rv isi on fo r t he c hil dr e n. Th e tr ia l c ourt a lso fo un d th a t a chang e of c are taker s and phy sical environme nt is li kely to have a traumatic e ffe ct on the children’ s emotional and phy sical condition, and that the c hildren have bonded with their c urre nt
car etake rs. In addition, we note that F ather admitted that he fa iled to visit the childre n for f our consec utive months and that at the time of trial ne arly twenty -two months had passed f rom the time that the children w ere taken into the custody of the state. Consider ing the listed statutory fac tors and the e ntire re cord, w e find that the tria l court prope rly deter mined that termination was in the best interest of the children.

Conclu sion

For the fore g oing r easons, we aff irm the juvenile cour

t’s judgme nt terminating Father’s pare ntal rig hts. Cost s of this appea l are assessed to the A ppellant, M.L .B., Sr.

___________________________________ DAVI D R. FARMER , JUDGE