### IN THE CO URT OF APPEALS OF TE NNE SS EE AT JACKSON Su bm it te d On Bri efs May 22, 2 01 2

IN TH E MATTE R OF: STE VEN P.D. (D.O.B. 02 /2 4/ 20 07 ) an d DALTON D. (D.O.B. 0 5/ 19 /2 00 8) , Chil dren Under E ig htee n (1 8) Year s o f Age

D i r e c t A p p e a l f

r o m t h e J u v e n i l e C o u r t f o r H e n r y C o u n t y N o . 9 9 3 9 V i c k i S

. S n y d e r , J u d g e

N o . W 2 0 1 1

- 0 2 4 8 9

- C O A

- R 3

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- F i l e d J u l y 2 5 , 2 0 1 2

T h i s i s a t e r m i n a t i o n o f p a r e n t a l r i g h t s c a s e

. T h e t r i a l c o u r t c o n c l u d e d t h a t i t w a s i n t h e b e s t i n t e r e s t s o f t h e c h i l d r e n t o t e r m i n a t e t h e p a r e n t a l r i g h t s o f M o t h e r a n d F a t h e r o n t h e g r o u n d s

o f a b a n d o n m e n t b y i n c a r c e r a t e d p a r e n t s , s u b s t a n t i a l n o n c o m p l i a n c e w i t h t h e p e r m a n e n c y p l a n s , a n d p e r s i s t e n c e o f c o n d i t i o n s

. O n a p p e a l
, M o t h e r a n d F a t h e r a r g u e t h a t D C S d i d n o t

c l e a r l y a n d c o n v i n c i n g l y p r o v e g r o u n d s f o r t e r m i n a t i o n

. F a t h e r f u r t h e r a r g u e s t h a t D C S d i d

n o t c l e a r l y a n d c o n v i n c i n g l y p r o v e t h a t t e r m i n a t i o n w a s i n t h e b e s t i n t e r e s t s o f t h e c h i l d r e n

. F i n a l l y , M o t h e r a n d F a t h e r a r g u e t h a t D C S f a i l e d t o m a k e r e a s o n a b l e e f f o r t s t o r e u n i f

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a n d R e m a n d e d

D A V ID R

. F A R M E R , J

. , d e l i v e r e d t h e o p i n i o n o f t h e C o u r t , i n w h i c h A LA N E

. H IG H E R S , P

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R o b e r t W

. H a w l e y , P a r i s , T e n n e s s e e , f o r t h e a p p e l l a n t , C h r i s t i n a P

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P a u l D

. H e s s i n g , P a r i s , T e n n e s s e e , f o r t h e a p p e l l a n t , S t e v e n D

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R o b e r t E

. C o o p e r , J r

. , A t t o r n e y G e n e r a l a n d R e p o r t e r a n d A l e x a n d e r S

. R i e g e r , A s s i s t a n t A t t o r n e y G e n e r a l
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o r t h e a p p e l l e e , T e n n e s s e e D e p a r t m e n t o f C h i l d r e n ’ s S e r v i c e s

.

O P I N I O N

I. Background and Proc edural History

The minor children involved in this appeal
, S t ev en P

. D. (d.o.b. 2/24/07) and Dalton D.(d.o.b. 5/19/2008), ar e the children of Christina P. (“Mother ”) and Steven D. (“F ather ”). I n J uly

2007, the Department of Children’s S ervic es (“DCS”) first rec eived in fo rm at i o n that the children

wer e exposed to drug abuse and wer e not supervised. Upon investiga tion of these alleg ations, DCS discovere d drug s and drug para pherna lia in the home. Fur ther, Mother admitted that she used drug s and tested positive on a drug scre en for methamphetamine, amphetamine, and THC. Fa ther was not living with Mothe r and the children a t that time. On J une 2, 2009, DCS rec eived information that the children suffe red from lack of supervision and environmenta l neg lect. DCS conducte d another investiga tion and found that both Mother and Fa ther were abusing drug s, and further discovere d evidenc e of domestic violence. Whil e Fa ther ref used to take a drug scre en, he admitted that he used marijuana

. Mother took a drug scre en and tested positive for methamphetamine, PCP
, THC, and amphetamines.

On J une 23, 2009, DCS filed a pe tition t o adjudicate the children depende nt a nd neg lected and to pr ovide court order ed service s for the family . DCS provided service s including c ounseling
to addre ss pare nting skills, alcoho l a n d d r u g is s ues, mental health intakes, pare nting classes, and drug

scre ens to ensure Mother and Fa ther wer e not abusing drug s. The children only rema ined living with the pare nts for a short period of time. On J uly 5, 2009, Mother was arr ested and ch ar ged with undera g e con s u m p t i o n while she was in the car with the children. As a result, DCS remove d the children a nd place d them in Fathe r’s sister’ s home.

On J uly 15, 2009, the trial court conducte d the preliminary hear ing. At the hear ing, Mother and Fa ther wer e o rd er ed to submit to a random drug scre en, the results of which indicated that Mother tested positive for marijuana and benzodiazepines, and Fa ther tested positive for marijuana 1 and methamphetamine. At the conclusion of the hear ing, the trial court order ed Mother and Fa ther
to submit to random drug scre ens, atten d co u n s eling to addre ss domestic violence, ang er manag ement, individual and g roup counseling and thera py , follow rec ommendation of service providers, and pay child support in the amount of $25.00 per wee k. The trial court further order ed Mother to attend a m o ra l recog nition thera py prog ram, have a drug and alcohol assessment, and follow rec ommendations, and order ed Fa t h er to have medication manag ement and follow

rec ommendations. Shortly afte r the preliminary hear ing, howeve r, Fa ther’s sister insisted that she could no long er care for the children. There fore
, the t rial court enter ed a pr otective c ustody order placing the childre n in the car e and c ustody of DCS. 2

On Aug ust 19, 2009, DCS cre ated the first set of perma nency plans for the children with the
g oal of reunific ation. The plan require ments for Mother and Fa ther we re simil ar to those order ed 3

Acco rdi ng t o th e r e c o r d
, Mo the r te st ed pos it ive for ben zodiazepi nes bec aus e she was pre scr ibe d 1
X ana x.

T he t ri al cou rt al so a ppoi nte d a guardi an a d l it em and co uns el fo r M oth er and Fat her

.

2

Wh il e m ore tha n one set of per m ane ncy pla ns wer e cr eat ed for the p a r e nts , the sub seq uen t pla ns 3

ar e al m ost ide nti cal to the ini ti al pla n wit h the add it ion al re qui re m ent s tha t Mo the r and Fat her obt ai n a saf e (c ont inu ed.. .)

-2-by the trial court at the preliminary hear ing, and cente red around their history of drug abuse,

domestic violence, and volatile living situation. The plan require d Mother to: ( 1) rema in dr ug and alcohol free; (2) s ubmit to random drug scree ns and hair follicle t ests; (3) underg o an alcohol and drug assessment, and follow its rec ommendations; (4) continue ang er manag ement and drug counseling ; (5) attend pare nting classes and demonstrate skills lear ned during visit ation; (6) have
g ood mental health, compl y wi t h t h erapists and counselors, and be sober for appointments; (7) maintain contact with DCS and the children; and (8) resolve all leg al issues, comply with court order s, and comply with all laws and require ments of probation. The plan require d Father to: (1)

rema in dr ug and alc ohol free ; (2) submit to random drug scre ens and hair follicle tests, a nd do not attempt to alter the r esults of the tests; (3) unde rg o an alcohol and drug assessment, and f

ollow its

rec ommendations; (4) continue medication manag ement; (5) work with an ger m anag ement counseling ; (5) attend pare nting classes and d em o n s t rate skills lear ned during visitation; and (6) resolve all leg al issue s, comply with court order s, and comply with all laws and require ments of probation.

On September 30, 2009, the trial court conducte d the adjudica tory hear ing. T he trial court ag ain order ed Mother and Fa ther to submit to a random drug scre en, the results of which indicated that Mother t es t ed p o sitive for marijuana and benzodiazepines, and Fa ther tested positive for 4 marijuana

. At the conclusion of the hear ing, the trial court found that neither Mother nor Fa ther had been compliant with the service s offe red by DCS. Moreove r, both Mother and Fa ther stipulated that the childre n wer e depe ndent and ne g lected. T hus, the trial court enter ed an or der a djudicating the children depende nt and neg lected. Shortly there afte r, on October 28, 2009, the trial court conducte d

a hear ing for the purposes of ratify ing the perma

nency plans. Mother was not prese nt at the hear ing beca use she enter ed inpatient drug reha bilitation the previous day

. At the conclusion of the hear ing, the trial court approve d and ratified the plans as being rea sonably rela ted to reme dy ing the conditions that nece ssitated the re moval of the c hildren.

DCS’s eff orts to assist Mother and Fa ther in comply ing with the perma nency plans include: ref err ed them to counseling prog rams; followed up with them i f t h ey missed counseling and

resc heduled missed appointments; provided pare nting classes; provided drug and alcohol assessments; paid for Fa ther’s d rug and alcohol assessment and ang er manag ement; provided multipl e drug scre ens; supervised visits; provided transporta tion; and when Mother and Fa ther wer e in dang er of losing their home, paid their rent and utilit y bill in order to keep supervised visits stable for them. Despite the eff orts of DCS, Mother and Fa ther strug g led in comply ing with the
perma nency plans. Mother did not complete a 12-step prog ram, co n s i s t entl y attend alcoholics

an o n y mous, or eng ag e in outpatient thera py as was rec ommended to her by her alcohol and d ru g assessment. Moreove r, afte r seeking inpatient trea tment fo r drug abuse issues, Mother tested

(... con ti nue d) 3 and st abl e ho m e a nd p rovid e pr oof of re nt and ut il it y paym ent s.

Simila r to the dru g t est re sul ts at the pre li m ina ry hea ri ng, t he re cor d ind ic at es tha t Mo th e r te st ed 4

pos it ive f or ben zodiazepi nes bec aus e s he wa s pr esc ri bed X ana x.

-3-positive on six differ ent occa sions for various substances. Simi larly
, Fa ther failed drug scre ens on

three differ ent occasions. Fa ther a lso admitted to smoki ng larg e amounts of meth, and eventua lly beg an ref using drug scre ens, stating that he would test positive. Fur thermore
, Fa

ther did not follow throug h with the require ments reg arding ang er ma nag ement and dome stic violence issues.

On November 4, 2010, DCS filed a pe tition t o terminate the pare ntal rig hts of Mot her and Fa ther. As g rounds for termination, the petit ion alleg ed abando n m en t b y incar cer ated parents for failure to support and wanton disreg ard, substantial noncompliance with the perma nency plans, and persistenc e of conditions. The petition further provided that termination of Mother and Fa ther' s pare ntal rig hts was in the best intere sts of the children.

The trial court conducte d a hear ing on the termination petition on J une 2 4
, 2 0 1 1

. Officer Stephen Pag e testified about the repe ated incar cer ation of Mother and Fa ther for drug use and rela ted offe nses. Al s o , DCS Family Service s Worker Terr i Reeve s (“Ms. Reeve s”) testified about the
perma nency plan require ments, the eff orts of DCS, and Mother and Fa ther' s failure to meet the plans require ments. Ms. Re eves testified that Fa ther never paid child support, Mother only made two of her child suppo rt p aym en ts afte r being broug ht befor e the child support court, that both pare nts worke d or could have w orked during that time, a nd that both Mothe r and Fa ther have ang er issues
t h at have resulted in domestic violence in front of the children. Ms. Reeve s further testified
reg arding the curr ent place ment of the children with family friends, and DCS's intentions to pursue adoptions for the children. Next, J ohn Thompso n (“ M r. T h ompson”), a thera pist from Nova Counseling, the c ounseling cente r Mother and Fa ther we re or dere d to attend, testified that Mother and Fa ther failed to attend all of the counseling sessions on alcohol an d drug abuse, ang er manag ement, and pare nting issues, and that neither pare nt completed the prog rams beca use of their lack of att endance. Mr. Thom pson further testified t hat DC S paid for all of t he services provided and wor ked ver y closely with the counseling cente r.

At the conclusion of t he hearing
, the t rial court orally g ranted t h e petition to terminate the
pare ntal rig hts of Mother and Fa ther afte r finding clea r and convincing evidenc e of abandonme nt by incar cer ated pare nts for failure to support and wanton disreg ard, substantial noncompliance with the
perma nency plans, persistenc e of co n d i t i o n s , and that termination was in the best interests of the children. There afte r, on September 21, 2011, the trial court enter ed a written order memorializing its ruling

. On October 20, 2011, Mother and Fa ther individually filed notices of appea l to this Court.

II. Issu es P rese nted

Mother and F ather

prese nt the following issues, as re stated, for our re view:

(1) Whether DCS clea rly and convincing ly proved g rounds for termination of the
pare ntal rig hts of Mother and F ather , and

(2) Whether DCS made rea sonable eff orts to reunify Mother and Fa ther with the children?

-4-I n addition, Fathe r pre sents the following issue for our revie w:

(3) Whether DCS clea rly and co n vincing ly proved that termination of the
pare ntal rig hts of Fa ther wa s in the best interests of the c hildren?

III. Stand ard of Review

We revie w a trial court' s finding s of fac t de novo upon the rec ord, acc ording a presumption of corr ectne ss to the finding s unless a preponde ranc e of the evidenc e is to the contra ry

. Tenn. R. App. P. 13(d); In re Valentine
, 79 S.W .3d 539, 546 (Tenn. 2002) (citation omitted). No presumption of corr ectne ss attache s to a trial court' s conclusions of law. Tenn. R. App. P. 13(d); Bowden v. W ard
, 27 S.W .3d 913, 916 (Tenn.2000) (citation omitted). We will not reeva luate the de terminations of

a trial court based on an assessment of cre dibilit y unless clea r an d convincing evidenc e is to the
contra ry

. In re M.L.D.
, 182 S.W .3d 890, 894 (Tenn. Ct. App. 2005) (citation omitted). Fur thermore
, wher e the trial court has not made a specific finding of fac t, we revie w the re co rd de novo

. In re Valentine , 79 S.W .3d at 546 (c itation omit ted).

Tenne ssee Code Annotated section 3 6–1–113 g overns the termination of pare ntal rig hts. This provision of the Code provides, in per tinent part:

(c) Termination of pa

renta l or g uardia

nship rights must be base d upon: (1) A finding by the court by clea r and convincing evidenc e that the g rounds for ter mination of pare ntal or g uardia nship rights ha ve bee n established; and (2) That termination of the pare nt's or g uardia n' s rig hts is in the best interests of the c hild.

Tenn. Code Ann. § 36–1–113(c) (1), (2) (2010). This two-step analy sis require s appellate courts to consider “whe ther t h e trial court' s finding s, made under a clea r and convincing standard, are supported by a preponde ranc e of the evidenc e.” In re F.R.R., III
, 193 S.W .3d 528, 530 (Tenn. 2006). “Althoug h the ‘cle ar and convincing evidenc e’ standa rd is more e x acting than the ‘pr eponder ance of the evidenc e’ standard, it does not require the cer tainty demande d by the ‘bey ond a rea sonable doubt’ standard.” In re M.A.B.
, No. W2007–00453–C OA–R3–PT, 2007 WL 2353158, at *2 (Tenn. Ct. App. Aug

. 20, 2007) (citation omitted). “Clear and convincing evidenc e is evidenc e that eliminates any substantial doubt and that produce s in the fac t-finder ’s mind a firm conviction as to the truth.” Id. (citation omitted).

The heig htened burden of proof in pare ntal termination case s re q uires us to distinguish betwee n the t rial co u rt 's finding s with respe ct t o specific fac ts and the “combined weig ht of t hese fac ts.” In Re: Michae l C. M. , No. W2010–01511–COA–R3–P T, 2010 WL 4366070, at *2 (Tenn. Ct. App. Nov. 5, 2010) (quoting In Re: M.J.B

. , 140 S.W .3d 643, 654 n.35 (Tenn. Ct. App. 2004)). Although we presume the trial court' s specific finding s of fac t to be corr ect if they are supported by a prepondera

nce of the evidence, we “must then determine whether the combined weig ht of t hese fac ts provi d e s c le a

r a n d c o n v in c in g e v id e n c e s u p porting the trial court' s ultimate fac tual conclusion.”

-5-Id.

IV. Analysis A. Groun ds for Termi

nation

The first issue befor e thi s Court i s wh et h er DCS clea rly and convincingly proved gr ounds for termination. This Cour t wi ll aff irm a trial court' s finding of g rounds if DCS clea rly and convincing ly proved at l ea s t one of the s tatutory bases for t ermination. State, Dep't of Children' s Servs. v. Mims
, 285 S.W .3d 435, 449 (Tenn. Ct. App. 2008) (citation omitted). The g rounds befor e this Court are abandonme nt, Tenn. Code Ann. § 36-1-113( g )(1)
, substantial noncompliance with the
p e r ma n e n c y p la n s, Tenn. Code Ann. § 36-1-113( g )(2)
, and persistenc e of the conditions that requir e d the re moval of the c hildren, Tenn. Code Ann. § 36-1-113( g )(3)

.

1. Aband onm ent by Incarce rate d Par ents

Tenne ssee Code Annotated section 36–1–113(g )(1) provides for ter m i n ati on if “[a]bandonment by the pare nt or g uardia n, as define d in § 36-1-102, has occur red

. . . .” As pertinent to this i ssue, Tenne ssee Code A nnotated sec tion 36-1-102 provides:

(1)( A) For purposes of terminating the pare ntal or g uardia n rig hts of pare nt(s)

or g uardia

n(s) of a child to that child in order to make that chil d available for adoption, “aba

ndonment” mea

ns that:

. . . . (iv) A pare nt or g u ar d i an i s i ncar cer ated at the time of the instit ution of an action or proce eding to decla re a child to be an abandone d child, or t h e p ar en t or g uardia n has been incar cer ated during all or part of the four (4) months immediately
prec eding the instit ution of such action or proce eding
, and either has willfully failed
to visit or has willfully fa i led to support or has willfully failed to make rea sonable
pay ments toward the s u p port of the child for four (4) consec utive months immediately prec eding such pare nt's or g uardia n' s incar cer ation, or t h e pare nt or g uardia n has eng ag ed in conduct prior to incar cer ation t h at exhibi ts a wanton disreg ard f

or the we lfare of the c hild; . . . .

Tenn. Code Ann. § 36-1-102( 1)(A) (iv). I n In re Audrey S.
, 182 S.W .3d 838 (Tenn. Ct. App. 2005),

we e x plained the de finition of abandonment in the c ontext of inca rce rate d pare nts:

This definition contains two distinct tests for abandonment. These additional tests for abandonme nt apply only if a pare nt is incar cer ated at or near the time of the filing of the termination petition. The first test asks whether the pare nt “has willfully failed
to visit[ ,]

. . . support [,] or

. . . make rea sonable pay ments toward the support of the child for four (4) consec utive months immediately prec eding such pare nt’s

. . .

-6-i n ca rceration.” Tenn. Code Ann. § 36–1–102(1)( A)(iv)

. This test trac ks th e

lang uag e of the first statutory definition of abandonme nt but shifts the focus from the four- month period immediately prec eding the filing of the termination petition to the four- month period immediately prec eding the pare nt's incar cer ation. The conce pt of “willfulness” is the s am e under both provisions. Tenn. Code Ann. § 36–1–102(1)( B) –(E). The second test asks whether the parent “has eng ag ed in conduct prior to incarc era tion which exhibi ts a wanton disre g ard f or the welfar e of the child.” Te nn. Code Ann. § 36–1–102(1)( A)(iv)

. This test has no analog in the first statutory definition o f abandonment, and it is not expressly limit ed to any particula r four -month period.

Id. at 865. The trial court deter mined that Mother and Fa ther abandone d the children based on their willful failure to make rea sonable pay ments toward the support of the children for four consec utive months immediately prec eding their incar cer ation, and for w a n ton disreg ard. We shall consider eac h in turn.

a. Willf

ul Failure to M ake Reasonable Child Sup port P aym ents

I n the case at bar, DCS filed the petition to terminate Mother and Fa ther’s pare ntal rig hts on November 4, 2010. Thu s , t h e re l evant four month period im mediately prec eding the fil ing of the termination petition was J ul y 4
, 2 0 10 throug h November 4, 2010. During this time, Mother was incar cer ated from Aug ust 8, 2010 to Aug ust 25, 2010, and from Aug ust 27, 2010 to September 21, 2010. Fa ther was incar cer ated on J uly 4, 2010, and from September 29, 2010 to October 5, 2010. 5 The last fo u r month period in which Mother was not incar cer ated was from Fe bruar y 28, 2010 to J une 28, 2010. The last four month period in which Fa ther was not incar cer ated was from November 21, 2009 to Marc h 21, 2010. At the preliminary hear ing on J uly 15, 2009, t h e t ri al court order ed Mother and Fa ther to pay child support in the amount of $25.00 per wee k. There afte r, the trial court modified this amount with reg ard to F ather , and orde red him to pay $201.50 per month beg inning

Fro m the ti me t h e c h i ldr en wer e re m oved fr om the ir par ent s unt il the ti m e of the te rminat ion 5 hea ri ng, Mot her was in car cer at ed s even t imes an d Fa the r wa s i nca rc er at ed n ine ti m es.

Mo the r’ s ti m e spe nt inc ar cer at ed was: J uly 5, 2009 to J uly 6, 2009 (un der age dri nking); Sept ember 8, 2009 to Sept ember 10, 2009 (un der age dri nking); Sept ember 17, 2009 to Septe m ber 18, 2009 (un der age dri nking); Sept ember 29 , 200 9 (viol at ion of pro bat ion ); J une 29, 2010 (f ai lur e to app ear ); August 8, 2010
to August 25, 2010 (mitt imus war ra nt) ; and August 27, 2010 to Sept ember 21, 2010 (viol at ion of pro bat ion ).

Fat her ’s ti m e spe nt inc ar cer at ed was: Ma rc h 22, 2010 (vanda li sm); Apri l 13, 2010 to Apri l 14, 2010 (do m est ic ass aul t) ; Ma y 28, 2010 to Ma y 30, 2010 (do m est ic ass aul t) ; J une 4, 2010 to J une 6, 2010 (do m est ic

ass aul t) ; J une 11, 2010 to J une 12, 2010 (do m est ic ass aul t) ; J uly 4, 2010 (r eckle ss dri ving); Sept ember 29, 2010 to Oct obe r 5, 2010 (a gg ra vated ass aul t and viola ti on of pro bat ion ); Febr uar y 16, 2011 to Ma rc h 1, 2011 (f ai lur e to app ear to ser ve j ai l sen te nce , ass aul t, evadin g ar re st , dri ving on a can cel le d/s usp end ed li cen se, and
two cou nts of viola ti on of pro bat ion ); and Ma rc h 2, 2011 to J une 9, 2011 (f ai lur e to app ear , evadin g ar re st , and dr iving on a ca nce ll ed/ sus pen ded li cen se)

.

-7-on J anuar

y 1, 2010.

I t is undisputed that Fa ther did not make any child support pay ments since the children wer e

remove d into the custody of DCS. Fa ther arg ues that h e co u l d n ot aff ord to make any pay

ments, there fore his failure to do so could not be seen as willful. The rec ord, howeve r, indicates that Fa ther

was capa ble of working during this time, and that he was employ ed at various times, including jobs he worke d in Union City an d at McCarthe y ’s Produce. Thus, we ag ree with the trial court’s conclusion that Fa ther abandone d the children by will fu l l y fa i l ing to make rea sonable pay ments toward the ir support during the four c onsecutive months in which he w as not incar cer ated.

Although the rec ord indicate s that Mother made two child support pay ments in May

2010, she only did so in response to a court order from the child support court. The trial court found that Mother was able to work during this time. Also, Mother was somehow able to aff ord to support her fre quent illega l drug usag e. I n light of Mother’s failure to make a single pay ment for approximately
ten m onths, these two court ordere d pay ments wer e nothi ng more t h an t o k en support. Moreove r, t h e fa ct t hat it took a court order to finally forc e Mother to pay child support could har d l y b e considere d willful con d u ct o n h er behalf

. Acc ording ly
, we find no err or in the trial court’s deter mination that Mother abandone d the children by willfully failing to make rea sonable pay ments toward the ir support during the four c onsecutive months in which she w as not incar cer ated.

b. Wanton Disregar d

As noted above, the trial court also conclude d that Mother and Fa ther abandone d the children beca use, prior to their incar cer ation, they eng ag ed in conduct that exhibi ted a wanton disreg ard for the welfare of t he children. The trial court f ound that Mother’s failure to resolve her lega l issues, obtaining additional criminal char g es resulting in her incar cer ation, and continued use of illicit drug s al l amounted to wanton disreg ard. The trial court also found that Fa ther’s incar cer at i o n fo r ag g rava ted assault and continued use o f il li c it d r u g s constituted wanton disreg ard within the meaning of the statute. As this Court has fre quently held, “proba tion violations, repe ated incar cer at ion, criminal behavior
, substa

n ce abuse, and failure to provide adequa te support or supervision for a child
can, alone, or in combination, constitute conduct that exhibi ts a wanton disreg ard for the welfa re of

a child.” In re Audrey S.
, 182 S.W .3d 838, 867-68 (Tenn. Ct. App. 2005). I n the case at bar, Mother and Fa ther admitted, and numerous drug scre ens proved, that they abused drug s while their children

wer e in the custody of DCS. Moreover , Mother and F ather wer e re peate dly

incar cer ated, at times for violating probation, and both failed to provide adequate support for their children. I n light of the totality of the c ircumstance s, we find that c lear and convinc ing evidenc e exis ts to support the trial court’s termination of Mother and Fa ther’s pare ntal ri gh t s o n t h e g round of abandonme nt by incar cer ated pa

rents for wanton disreg ard.

2. Sub stantial Noncom plian ce

Tenne ssee Code Annotated section 36-1-113( g)(2) establishes a g round for termination if “[t] here has been substantial noncompliance by the pare nt or g u ar d i an with the statement of

-8-responsibilities in a perma nency plan or a plan of car e pursuant to the provisions of title 37, chapte r 2, part 4.” Tenn. Code Ann. § 36 -1 -1 1 3 (g)( 2). Termination for substantial noncompliance is

war rante d only when the plan' s require ments are “‘r easona ble and rela ted to reme dy ing the conditions w hich nece ssitate foster car e place ment.’” In re Vale ntine , 79 S.W .3d 539, 547 (Tenn. 2002) (quoting Tenn. Code Ann. § 37-2-403( a)(2 )( C ))

. The deter mination of whether noncompliance is substantial compar es the degre e o f noncompliance with the importance of the
unmet obliga tion. In re M.J.B.
, 140 S.W .3d 643, 656 (Tenn. Ct. App. 2004) (citation s o m i t t ed). “Trivial, minor, or technica l deviations from a perma nency plan’s require ments will not be deeme d to amount to substantial noncompliance.” Id. at 656-57 (c itations omi tted).

I n its final order te rminating Mother and F ather ’s par ental rig hts, the trial court states:

[Mot her] has not substantially complied wit h the responsibil ities and requirements
set out for her in the perma nency plans. [Mot her] has n o t complied with the

rec ommendations of her alcohol and drug trea tment prog ram at Buf falo Valley
, she has incurre d additional leg al char g es, she has failed to provide proof that she applied for the Safety Net p rog ram at Carey Counseling, she has failed to demonstrate eff ective pare nting skills, and s h e h as failed to obtain a mental health intake and follow the re commendations.

[Father] has not substantially complied with the responsibilities and require ments set out for him in the perma n ency plans. [Father] has not demonstrated the ability to control his ang er, he has continued to test positive or admit to illicit drug use; he has failed to provide verific ation of a stable home throug h rent and utilit y rec eipts, he has failed to pa

y child support, and he ha s incurre d new c riminal char g es.

. . . . Despite assistance from DCS, [Mot her] h a s not followed the rec ommendations of her discharg e summary from Buf falo Valley and continues to acknow ledg e s h e uses drug s and has a

drug problem. [Mother] has not established a safe and stable home for the children nor has she [been] attending counseling to addre ss her mental health needs. [Mother] has also failed to pa y child support for the c hildren.

Despite assistance from DCS, [Father] has not completed alcohol and drug counseling or ang er ma

nag ement counse ling. [ Fa ther] continues to admit that he is usi n g i l leg al drug s. [Father] has not resolved his leg al issues and has obtained additional criminal cha

rg es for assault.

We ag ree with the trial court that clea r and convincing evidenc e exis ted to terminate the
pare ntal rig hts of Mother and Fa ther based on their substantial noncompliance with the perma nency plans. As noted above, the perma nency plans for Mother and Fa ther require d that they rema in drug and alcohol fre e, co m plete ange r m anag ement counseling, complete alcohol and drug counseling
,

-9-provide a safe and stable home for t h e ch i l d ren, attend pare nting classes, comply with the

rec ommendations of counselors and assessments, an d co mply with all laws and require ments of probation. These require ments illust rate the ultimate g oal for the pare nts which was to eliminate the drug abuse, domestic violence, and u n s af e l i v ing conditions that the children wer e subjected to befor e they

wer e re moved into the custody of DCS.

Unf o rt u n at el y , both Mother and Fa ther failed t o comply with these requireme nts. Mother failed to complete a 12-step progr am, failed to consistently attend alcoholics anony m o u s , and did
not e ng ag e in outpatient thera py as re commended by

her a lcohol and drug assessment. Following her completion of inpatient trea tment at Buf falo Valle y fo r h er drug abuse issues, Mother tested positive on six differ ent occa sions for various drug s. L ikewise, Fa ther failed drug scre ens on three differ ent occa sions. Fa ther also did not follow throug h with the require ments reg arding ang er manag ement and domestic violence issues. Most notably
, Fa ther admits in his brief that he stopped working toward the plan require ments in April 2010 afte r he was arr ested for domestic assault
ag ainst Mother during an unsupervised visit with the children. After that incident, Fa ther admitted to smoking larg e amounts of methamphetamine, and eventua lly beg an ref using DCS’s a ttempts to administer drug scre ens, stating that he would test positive. Acc ording ly
, we find no err or in the trial court’s decision to terminate the pare ntal rig hts of Mother and Fa ther for substantial noncompliance with the perma

nency plans.

3. P ersiste nce of Cond itions

Tenne ssee Code A nnotated sec tion 36-1-113(g )(3) establishes a g round for termination if:

The child has been remove d from the hom e of the parent or guar dian by order of a court for a per iod of six (6) months and : (A) The conditions that led to the child' s remova l or other conditions that in all rea sonable probability would cause the child to be subjec ted t o further abuse or
neg lect and that, there fore
, preve nt the child' s safe return to the car e of the pare nt(s)
or g uardia

n(s), still persist; (B ) There is littl e likelihood that these conditions will be reme died at an ear ly date so that the child can be safe ly returne d to the pare nt(s) or g uardia n(s) in the near future; a nd (C) The continuation of the pare nt or g uardia n and child rela tionship g rea tly diminis hes the child' s chanc es of ear ly integ ration into a safe
, stable and perma nent home[.]

Tenn. Code Ann. § 36-1-113( g )(3) (A)- (C). A finding of p er s i s t ence of conditions is permissible only if DCS prese nts clea r and convincing evid en ce to establish eac h statutory element. In re Giorgianna H. , 205 S.W .3d 508, 518 (Tenn. Ct. App. 2006) ( citation omitted).

On August 5, 2009, the t rial court enter ed an order removingthe childre n into the custody of DCS. The conditions that led to the remova l of the children included Mother and Fa ther’s history

-10-of drug abuse, domestic violence in the home, and volatile living environment. I n its final order
, the

trial court c oncluded:

Those conditions still persists as [Mot h er ] an d [Father] continue to admit to using illega l dr ug s and they have been involved in incidents of assault since the remova l. [ M o t h er ] has failed to succe ssfully complete alcohol and drug trea tment by not following the rec ommendations of her inpatient prog ram and by continuing to abuse drug s. [Mot her] has not established a safe and stable home for the children. [Father] continues to use illega l drug s and has not established a safe and stable home for the children.

After revie wing the rec ord, we ag ree with the trial court’s deter mination that DCS clea

rly and convincing ly proved the g round of persistenc e of conditions. At the time of the termination hear ing, Mother and Fa ther wer e strug g ling with the same drug abuse and domest i c violence issues that

cause d their children to be remove d from their custody fourtee n months ear lier. Despite the eff orts of DCS, Mother and Fa

ther failed to make the nece ssary prog ress to ensure a safe and stable living environment in which to raise their children. The rec ord clea rly shows that Mother and Fa ther either ref use to, or cannot, chang e their circ umstances in the fore seea ble fut u re. Given the pare nts’
ong oing issues of drug abuse and domestic violence, the continuation of the pare nt-chi ld rela tionship
g rea tly diminis hes the chanc es of the children integ rating into a safe
, stable, and perma nent home. Fur therm o re , the children are thriving in DCS custody
, are “happy littl e boy s,” and DCS plans to pursue adoptions for the children. Termination o f p ar en t al rig hts on the g round of persistenc e of conditions is intended “to preve nt the child’s linge ri n g in the uncer tain status of foster child if a pare nt cannot within a rea sonable time demonstrate an ab i lity to provide a safe and car ing environment for the child.” In re Arteria H.
, 326 S.W .3d 167, 178 (Tenn. Ct. App. 2010) (citations omitted). There fore
, we aff irm the trial court’s decision to te rminate the pare ntal rig hts of Mother and F ather

on the g round of pe rsistence of conditions.

B. Reasonabl

e Efforts

The next issue befor e this Court is whether DCS m ad e re as o n able eff orts to help reunite Mother and Fa ther with the children. The decision to pursue a termination of pare ntal rig hts on the
g r o u n d s o f a b a n d o n me n t, persistenc e of conditions, and substantial nonc o mp li a n c e g e n e r a ll y in

v o k e s DCS's statutory duty to make rea sonable eff orts to f acilitate the safe return of a child to the child' s home. In re R.L.F.
, 278 S

. W

. 3 d 3 05, 315 (Tenn. Ct. App. 2008) (citing Tenn. Code Ann. § 37–1–166(b), –166( a)( 2), –166(g )(2) ); see a lso In re Tiff any B. , 228 S.W .3d 148, 151, 160 (Tenn. Ct. App. 2007) (vac ating a finding of abandonme nt, substantial noncompliance
, and persistenc e of conditions for failure to make rea sonable eff orts). Although DCS may be relieve d of its du t y to make r easona

ble eff orts afte r a court of competent jurisdiction f inds “ ag g rava ting c ircumstance s,” Tenn. Code Ann. § 37–1–166(g )(4) (A)–( C), it cannot withhold rea sonable eff orts “‘in the hopes that

a court will later make a f inding

. . . that retroa ctively ‘for g ives’ DCS’s la ck of eff orts.

. . .’” In re Keisheal N.E.
, No. M2009–02527–COA–R3–PT, 2010 WL 2176104, at * 13 (Tenn. Ct. App. May 28, 2010) ( no perm. app. filed ) (quoting In re B.L.C.
, No. M2007–01011–COA–R3–PT, 2007 WL

-11-4322068, at *9 (Te nn. Ct. App. Dec.6, 2007) ).

The statutory duty to make rea sonable eff orts includes an obliga tion to exercise “‘r easona ble

car e and diligenc e

. . . to provide service s rela ted to meeting the needs of the child and the family .’” In re R.L.F.
, 278 S.W .3d at 316 (empha sis omitted) (citing Tenn. Code Ann. § 3 7

– 1

– 1 6 6 (g)( 1)). Courts evaluate the re asonable ness of DCS' s eff orts in light of the f

ollowing f

actor s:

(1) the rea sons for separ ating the pare nts from their children, (2) the pare nts' phy sical and mental abilities, (3) the resour ces available to the pare nts, (4) the pare nts' eff orts to reme dy the conditions that require d the remova l of the children, (5) the resour ces available to the Depa

rtment, (6) the d u ra t ion and extent of the pare nts' eff orts to addre ss the problems that cause d the children' s remova l, and (7) the closene ss of the fit between the conditions that led to the initial remova l of the children, the require ments of the per

manenc y plan, and the D epar

tment's e ffor

ts.

In re Tiff any B.
, 228 S.W .3d at 158–59 (footnote omitted) (citing In re Giorgianna H.
, 205 S.W .3d 508, 519 (Tenn. Ct. App. 2006)). Courts should decide the r easona bleness of D CS's ef

forts “on a

case -by -ca se basis in light of the unique fac ts of the case .” In re Bernard T.
, 319 S.W .3d 586, 601 (Tenn. 2010) (citing In re J .C.D. , 254 S.W .3d 432, 446 (Tenn. Ct. App. 2007)) . The burde n is on DCS to prove clea

rly and convincing ly the rea sonablene ss of its efforts. In re R.L.F. , 278 S.W .3d
at 3 1 6 (c iting In re B.B.
, No. M2003–01234–COA–R3–PT, 2004 WL 1283983, at *9 (Tenn. Ct. App. J une 9, 2004))

.

The exercise of rea sonable eff orts is important beca

use “[t] he succe ss of a pare nt’s reme dial efforts g ener ally depends on the Depa rtment' s assistance and support.” In re Giorgianna H.
, 20 5 S.W .3d at 518 (citations omitted). DCS employ ees must aff irmatively and rea sonably utiliz e their education and training to help pare nts eliminate the conditions requiring remova l of their childre n and to meet the respons i b i lities of their perma nency plans befor e courts will terminate the
pare nt-child rela tionship. In re R.L.F

. , 2 7 8 S .W.3d at 316 (citations omitted). DCS's duty to aff irmatively assist pare nts exis ts even if the pare nts do not seek assistance

. Id. (citing In re C.M.M.
, 2004 WL 438326, at *7). “While the Depa rtment' s reunific ation eff

orts need not be ‘her culea

n,’ the Depa rtment must do more than simply provide the pare nts with a list of service s and send them on their wa y .” In re Giorgianna H. , 205 S.W .3d at 519 (c itation omit ted).

T h e leg islature, howeve r, did not place the burden to reunify pare nt and child on DCS's shoulders alone. See State, Dep't of Children' s Servs. v. Estes
, 284 S.W .3d 790, 801 (Tenn. Ct. App. 2008) (citation omitted). Reunification “is a two-wa y street, and neither law nor policy require s the De p ar t m en t to acc omplish reunific ation on its own without the assistance of the pare nts.” In r e Tiff any B.
, 228 S.W .3d at 159 (c itations omi tted). “Par ents share the responsibility for addre ssing the conditions that led to the remova l of their children from their custody .” Id. Once service s have been made available
, pare nts must make rea sonable eff orts to reha

bilitate themselves. Id. (citations omitted).

-12-Reg arding the eff orts of DCS to assist Mother and Fa ther, the trial court’s fi nal order provides:

[DCS ] has made rea sonable eff orts to assist the pare nts in achie ving the g oals on the
perma nency plans. Ms. R eeves ref err ed [Mot her] to Wolfe Counseling for a pare nting as s essment and DCS paid for said assessment. Ms. Reeve s has seen [Mot her] at least wee kly since Aug ust 2009, and in Fe bruar y 2011 beg an seeing her twice wee kly
, to assist in supervising additional visitations. Ms. Reeve s spoke with [Mot her] about the nee d for he r to succe ssfully complete service s and what neede d
to be done to complete the tasks on the Permane ncy Plan eac h time she met with her. Ms. Reeve s provided transporta tion to [Mot her] on various occa sions and [Mot her]

was awa re she could contac t Ms. Reeve s for transpo rt at i o n. Ms. Reeve s sat with [Mot her] at a visit and called and made an appointment for counseling service s afte r [Mot her] missed an appointment and had not resc heduled it. [Mot her] also failed to attend the appointment they set tog ether

. Despite her encourag ement and offe rs t o help, Ms. Reeve s was not able to motivate [Mot her] to attend her appointments as

rec ommended or addre ss her substa nce abuse issues. [Mot her] alway s appea red honest reg arding her drug usag e and would ackno wl ed ge her drug use during their

conver sations. Throug hout the duration of the case , [Mot her] stay ed with v ar i ous friends and family and did not have a stable residenc e. [Mot her] an d [ Fa t h er] established a residenc e

. . . in Paris, Tenne ssee, and DCS paid for the first month of utilit ies and rent to assist them. Howeve r, they did not rema in in the home. [Mot her] also informed Ms. Re eves that she was unawa re of any thing else Ms. Re eves could do to g et her to complete the tasks on the Permane ncy Plans and that she knew what she nee ded to do.

Ms. Reeve s provided transporta tion to [Father] ; re fe rre d him for service s at Nova Counseling; and provided in-home service s and thera peutic visitation throug h Wolfe Counseling.

As mentioned above, DCS provided and paid for numerous service s for Mother and Fa ther. DCS ref err ed them to counseling prog rams; foll owed up with them if they missed counseling and

resc heduled missed appointments; provided pare nting classes; provided drug and alcohol assessments; paid for Fa ther ’s drug and alcohol assessment and ang er manag ement; provided multipl e drug scre ens; supervised visits; provided transporta tion; and when Mother and Fa ther wer e in dang er of losing their home, paid their rent and utilit y bill in order to keep supervised visits stable for them. Moreove r, Mr. Thompson testified at the termination hear ing that DCS paid for all service s provided and worke d very close with the counseling cente r to a ssist the pare nts w ith their drug abuse, ang er manag ement, domestic violence, and pare nting issues. Unfortuna tely
, Mother and Fa ther failed to take advanta g e of the service s offe red to them. I nstead, it was Mother and Fa ther’s
ong oing drug abuse, domestic violence, and repe ated incar cer ation that impeded the ability of DCS
to assist them. Fur

thermore
, Fa ther admits that, besides attending supervised visitation, he made no eff orts to comply with the perma nency plans afte r April 2010 when he was arr ested for domestic

-13-assault ag ainst Mother. I n light of the forg oing discussion, we conclude that DCS made rea sonable

eff orts to reunify

Mother and F ather

with their children.

C. Best In terests

Finally
, we must addre ss whether termination of Mother and Fa ther’s pare ntal rig hts was in the best interests of the children. Termination of pare ntal rig hts is appropr iat e o n l y i f cl ear and 6 convincing evidenc e esta

blishes that eliminating those rig hts is in t he best intere sts of the child or children named in the petition. Tenn. Code Ann. § 36–1–113(c) (2) (2010). C o u rt s consi der the following non-exhaustive list of factors w hen dete rmining the best interests of a child:

(1) Whether the pare nt or g uardi an h as made such an adjustment of circ umstance, conduct, or conditions as to make it safe and in the child' s best interest to be in the home of the pare nt or g uardia n; (2) Whether the pare nt or g uardia n has failed to eff

ect a lasting adjustment afte r rea sonable eff

orts by available social service s ag encie s for such duration of time that lasting a djustment does not reasona bly appea r possible; (3) Whether the pare nt or g uardia n has maintained reg ular visitation or other
contac t with the child; (4) Whether a meaning ful relationship has otherwise been established betwee n the par ent or g uardia n and the c hild; (5) The eff

ect a change o f car etake rs and phy sical environment is likely to have on the child' s emotional, psy cholog ical and me dical condition; (6) Whether the pare nt or g uardia n, or other person residing with the pare nt

or g uardia n, has shown brutality
, phy sical, sexual, emotional or psy cholog ical abuse,
or neg lect towar d the child, or a nother c hild or adult in the family or household; (7) Whether the phy sical environment of the pare nt's or g uardia n' s home is healthy and saf e, whe ther ther e is c riminal activity in the home, or whe ther ther e is such use of alcohol or controlled sub s t an ce s as may rende r the pare nt or g uardia n consistently

unable to ca

re f or the c hild in a safe a

nd stable manne r; (8) Whether the pare nt's or g uardia n' s mental and/or emotional status would be detrimental to the chil d o r p re vent the pare nt or g uardia n from eff

ectively providing safe and stable c are and super vision for the child; or (9) Whether the pare nt or g uardia n has paid child support consistent with the child support g uidelines promulg ated by the depa rtment pursuant to § 36–5–101.

Mo the r doe s not cha ll enge the tr ia l cou rt ’s bes t int er est det er m ina ti on on app eal

. Nevert hel ess , we 6 sha ll con si der thi s is sue as it re la te s to bot h Mo the r and Fat her

. See In re: A’M ari B.
, 358 S.W .3d 204, 211 (T enn

. Ct. App. 2011 ) (“ I n the int er est of j ust ic e” thi s C o u r t ana lyzed the tr ia l cou rt ’s bes t int er est det er m ina ti on as to bot h par ent s des pit e Mo the r’ s fa il ure to ra is e the is sue on app eal ); see als o In re: Joh nny J.E.M

. , No. E201 1- 0219 2- COA- R3- PT
, 2012 WL 1929 802, at *12 n.3 (T enn

. Ct. A p p

. M a y 29, 2011 ) (“ Alt hough Fat her doe s not cha ll enge the tr ia l cou rt ’s bes t- int er est det er m ina ti on, we re view thi s is sue as to bot h M oth er and Fat her .”)

.
-14-Tenn. Code Ann. § 36–1–113(i)(1) –(9). “Eve ry fac tor nee d not be applica ble in order

for the trial
court to deter

mine that it is in the best interest of the child for a pare nt's rig ht[ s] to be terminated.” In re D.C.A.
, No. M2008–01279–COA–R3–PT, 2009 WL 837877, at *8 (Tenn. Ct. App. Mar. 30, 2009) ( no perm. app. filed ). The weig ht a

nd rele vance of these fac tors may vary from case to c ase and it is possible tha t a single fac tor is de terminative. Id. (citing In re Audrey S.
, 182 S.W .3d 838, 878 (Tenn. Ct. App. 2005)). I n evalua ting the issue of best interests, the court must reme mber that
any co n flict betwee n the best interests of a child and the adult pare nt “shall alway s be resolved t o favor the rig hts and the best intere sts of the child. . . .” Te nn. Code Ann. § 36–1–101(d)

.

For the rea sons disc ussed above, we ag ree with the trial court that Mother and F ather

have fa i l ed t o m ak e an adjustment of circ umstances in their lives to make it safe for the children to be
returne d to their home. Despite the eff orts of DCS, Mother and Fa ther continue to strug g le with the

same drug abuse and domestic violence issues that plag ued their home when the children wer e

remove d from their c ustody . Also, Mother and F ather have f ailed to support the childre n. On the other hand, the children have adapte d to their curr ent environment, and DCS plans to pursue adoptions for the children with their foster family

. To return the children to Mother and Fa ther while they continue to strug g le with drug abuse and domestic violence would undoubtedly be detrimental
to the chil d ren’ s emotional and phy sical well-be ing. There fore
, we conclude that the evidenc e prese nted clea

rly and con v i n ci ng ly established that terminating the pare ntal rig hts of Mother and Fa ther wa s in the best interests of the c hildren.

V. Conclusion

For the fore g oing rea sons, we aff irm the judgme nt of the trial court. Costs of this appea l are taxed to the Appellants, Christina P. and St even D ., for whic h execution may issue if n e c e s s a r y

.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ D A V I D R

. F A R M E R
, J U D G E

-15-