IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Submitted On Briefs May 22, 2012

IN THE MATTER OF: STEVEN P.D. (D.O.B. 02/24/2007) and DALTON D.

(D.O.B. 05/19/2008), Children Under Eighteen (18) Years of Age

Direct Appeal from the Juvenile Court for Henry County

No. 9939 Vicki S. Snyder, Judge

No. W2011-02489-COA-R3-PT - Filed July 25, 2012

This is a termination of parental rights case. The trial court concluded that it was in the best

interests of the children to terminate the parental rights of Mother and Father on the grounds

of abandonment by incarcerated parents, substantial noncompliance with the permanency

plans, and persistence of conditions. On appeal, Mother and Father argue that DCS did not

clearly and convincingly prove grounds for termination. Father further argues that DCS did

not clearly and convincingly prove that termination was in the best interests of the children.

Finally, Mother and Father argue that DCS failed to make reasonable efforts to reunify them

with their children. After thoroughly reviewing the record, we affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed

and Remanded

DAVID R. FARMER, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J.,

W.S., and J. STEVEN STAFFORD, J., joined.

Robert W. Hawley, Paris, Tennessee, for the appellant, Christina P.

Paul D. Hessing, Paris, Tennessee, for the appellant, Steven D.

Robert E. Cooper, Jr., Attorney General and Reporter and Alexander S. Rieger, Assistant

Attorney General, for the appellee, Tennessee Department of Children’s Services.

OPINION

I. Background and Procedural History

The minor children involved in this appeal, Steven P. D. (d.o.b. 2/24/07) and Dalton D.
(d.o.b. 5/19/2008), are the children of Christina P. (“Mother”) and Steven D. (“Father”). In July

2007, the Department of Children’s Services (“DCS”) first received information that the children

were exposed to drug abuse and were not supervised. Upon investigation of these allegations, DCS

discovered drugs and drug paraphernalia in the home. Further, Mother admitted that she used drugs

and tested positive on a drug screen for methamphetamine, amphetamine, and THC. Father was not

living with Mother and the children at that time. On June 2, 2009, DCS received information that

the children suffered from lack of supervision and environmental neglect. DCS conducted another

investigation and found that both Mother and Father were abusing drugs, and further discovered

evidence of domestic violence. While Father refused to take a drug screen, he admitted that he used

marijuana. Mother took a drug screen and tested positive for methamphetamine, PCP, THC, and

amphetamines. 

On June 23, 2009, DCS filed a petition to adjudicate the children dependent and neglected

and to provide court ordered services for the family. DCS provided services including counseling

to address parenting skills, alcohol and drugissues, mental health intakes, parenting classes, and drug

screens to ensure Mother and Father were not abusing drugs. The children only remained living with

the parents for a short period of time. On July 5, 2009, Mother was arrested and charged with

underage consumption while she was in the car with the children. As a result, DCS removed the

children and placed them in Father’s sister’s home. 

On July 15, 2009, the trial court conducted the preliminary hearing. At the hearing, Mother

and Father were ordered to submit to a random drug screen, the results of which indicated that

Mother tested positive for marijuana and benzodiazepines, and Father tested positive for marijuana 1

and methamphetamine. At the conclusion of the hearing, the trial court ordered Mother and Father

to submit to random drug screens, attend counseling to address domestic violence, anger

management, individual and group counseling and therapy, follow recommendation of service

providers, and pay child support in the amount of $25.00 per week. The trial court further ordered

Mother to attend a moral recognition therapy program, have a drug and alcohol assessment, and

follow recommendations, and ordered Father to have medication management and follow

recommendations. Shortly after the preliminary hearing, however, Father’s sister insisted that she

could no longer care for the children. Therefore, the trial court entered a protective custody order

placing the children in the care and custody of DCS. 

2

On August 19, 2009, DCS created the first set of permanency plans for the children with the

goal of reunification. The plan requirements for Mother and Father were similar to those ordered 3

According to the record, Mother tested positive for benzodiazepines because she was prescribed

1

Xanax.

The trial court also appointed a guardian ad litem and counsel for Mother and Father.

2

While more than one set of permanency plans were created for the parents, the subsequent plans 3

are almost identical to the initial plan with the additional requirements that Mother and Father obtain a safe

(continued...)

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by the trial court at the preliminary hearing, and centered around their history of drug abuse,

domestic violence, and volatile living situation. The plan required Mother to: (1) remain drug and

alcohol free; (2) submit to random drug screens and hair follicle tests; (3) undergo an alcohol and

drug assessment, and follow its recommendations; (4) continue anger management and drug

counseling; (5) attend parenting classes and demonstrate skills learned during visitation; (6) have

good mental health, comply with therapists and counselors, and be sober for appointments; (7)

maintain contact with DCS and the children; and (8) resolve all legal issues, comply with court

orders, and comply with all laws and requirements of probation. The plan required Father to: (1)

remain drug and alcohol free; (2) submit to random drug screens and hair follicle tests, and do not

attempt to alter the results of the tests; (3) undergo an alcohol and drug assessment, and follow its

recommendations; (4) continue medication management; (5) work with anger management

counseling; (5) attend parenting classes and demonstrate skills learned during visitation; and (6)

resolve all legal issues, comply with court orders, and comply with all laws and requirements of

probation. 

On September 30, 2009, the trial court conducted the adjudicatory hearing. The trial court

again ordered Mother and Father to submit to a random drug screen, the results of which indicated

that Mother tested positive for marijuana and benzodiazepines, and Father tested positive for 4

marijuana. At the conclusion of the hearing, the trial court found that neither Mother nor Father had

been compliant with the services offered by DCS. Moreover, both Mother and Father stipulated that

the children were dependent and neglected. Thus, the trial court entered an order adjudicating the

children dependent and neglected. Shortly thereafter, on October 28, 2009, the trial court conducted

a hearing for the purposes of ratifying the permanency plans. Mother was not present at the hearing

because she entered inpatient drug rehabilitation the previous day. At the conclusion of the hearing,

the trial court approved and ratified the plans as being reasonably related to remedying the conditions

that necessitated the removal of the children. 

DCS’s efforts to assist Mother and Father in complying with the permanency plans include: 

referred them to counseling programs; followed up with them if they missed counseling and

rescheduled missed appointments; provided parenting classes; provided drug and alcohol

assessments; paid for Father’s drug and alcohol assessment and anger management; provided

multiple drug screens; supervised visits; provided transportation; and when Mother and Father were

in danger of losing their home, paid their rent and utility bill in order to keep supervised visits stable

for them. Despite the efforts of DCS, Mother and Father struggled in complying with the

permanency plans. Mother did not complete a 12-step program, consistently attend alcoholics

anonymous, or engage in outpatient therapy as was recommended to her by her alcohol and drug

assessment. Moreover, after seeking inpatient treatment for drug abuse issues, Mother tested

(...continued) 3

and stable home and provide proof of rent and utility payments.

Similar to the drug test results at the preliminary hearing, the record indicates that Mother tested 4

positive for benzodiazepines because she was prescribed Xanax.

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positive on six different occasions for various substances. Similarly, Father failed drug screens on

three different occasions. Father also admitted to smoking large amounts of meth, and eventually

began refusing drug screens, stating that he would test positive. Furthermore, Father did not follow

through with the requirements regarding anger management and domestic violence issues. 

On November 4, 2010, DCS filed a petition to terminate the parental rights of Mother and

Father. As grounds for termination, the petition alleged abandonment by incarcerated parents for

failure to support and wanton disregard, substantial noncompliance with the permanency plans, and

persistence of conditions. The petition further provided that termination of Mother and Father's

parental rights was in the best interests of the children. 

The trial court conducted a hearing on the termination petition on June 24, 2011. Officer

Stephen Page testified about the repeated incarceration of Mother and Father for drug use and related

offenses. Also, DCS Family Services Worker Terri Reeves (“Ms. Reeves”) testified about the

permanency plan requirements, the efforts of DCS, and Mother and Father's failure to meet the plans

requirements. Ms. Reeves testified that Father never paid child support, Mother only made two of

her child support payments after being brought before the child support court, that both parents

worked or could have worked during that time, and that both Mother and Father have anger issues

that have resulted in domestic violence in front of the children. Ms. Reeves further testified

regarding the current placement of the children with family friends, and DCS's intentions to pursue

adoptions for the children. Next, John Thompson (“Mr. Thompson”), a therapist from Nova

Counseling, the counseling center Mother and Father were ordered to attend, testified that Mother

and Father failed to attend all of the counseling sessions on alcohol and drug abuse, anger

management, and parenting issues, and that neither parent completed the programs because of their

lack of attendance. Mr. Thompson further testified that DCS paid for all of the services provided

and worked very closely with the counseling center. 

At the conclusion of the hearing, the trial court orally granted the petition to terminate the

parental rights of Mother and Father after finding clear and convincing evidence of abandonment by

incarcerated parents for failure to support and wanton disregard, substantial noncompliance with the

permanency plans, persistence of conditions, and that termination was in the best interests of the

children. Thereafter, on September 21, 2011, the trial court entered a written order memorializing

its ruling. On October 20, 2011, Mother and Father individually filed notices of appeal to this Court. 

II. Issues Presented

Mother and Father present the following issues, as restated, for our review:

(1) Whether DCS clearlyand convincinglyproved grounds for termination of the

parental rights of Mother and Father, and

(2) Whether DCS made reasonable efforts to reunify Mother and Father with the

children?

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In addition, Father presents the following issue for our review:

(3) Whether DCS clearly and convincingly proved that termination of the

parental rights of Father was in the best interests of the children?

III. Standard of Review

We review a trial court's findings of fact de novo upon the record, according a presumption

of correctness to the findings unless a preponderance of the evidence is to the contrary. Tenn. R.

App. P. 13(d); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citation omitted). No presumption

of correctness attaches to a trial court's conclusions of law. Tenn. R. App. P. 13(d); Bowden v. Ward,

27 S.W.3d 913, 916 (Tenn.2000) (citation omitted). We will not reevaluate the determinations of

a trial court based on an assessment of credibility unless clear and convincing evidence is to the

contrary. In re M.L.D., 182 S.W.3d 890, 894 (Tenn. Ct. App. 2005) (citation omitted). Furthermore,

where the trial court has not made a specific finding of fact, we review the record de novo. In re

Valentine, 79 S.W.3d at 546 (citation omitted).

Tennessee Code Annotated section 36–1–113 governs the termination of parental rights. 

This provision of the Code provides, in pertinent part:

(c) Termination of parental or guardianship rights must be based upon:

(1) A finding by the court by clear and convincing evidence that the grounds

for termination of parental or guardianship rights have been established; and

(2) That termination of the parent's or guardian's rights is in the best interests

of the child.

Tenn. Code Ann. § 36–1–113(c)(1), (2) (2010). This two-step analysis requires appellate courts to

consider “whether the trial court's findings, made under a clear and convincing standard, are

supported by a preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). 

“Although the ‘clear and convincing evidence’ standard is more exacting than the ‘preponderance

of the evidence’ standard, it does not require the certainty demanded by the ‘beyond a reasonable

doubt’ standard.” In re M.A.B., No. W2007–00453–COA–R3–PT, 2007 WL 2353158, at *2 (Tenn.

Ct. App. Aug. 20, 2007) (citation omitted). “Clear and convincing evidence is evidence that

eliminates any substantial doubt and that produces in the fact-finder’s mind a firm conviction as to

the truth.” Id. (citation omitted).

The heightened burden of proof in parental termination cases requires us to distinguish

between the trial court's findings with respect to specific facts and the “combined weight of these

facts.” In Re: Michael C. M., No. W2010–01511–COA–R3–PT, 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 findings of fact to be correct if they are supported by

a preponderance of the evidence, we “must then determine whether the combined weight of these

facts provides clear and convincing evidence supporting the trial court's ultimate factual conclusion.” 

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Id.

IV. Analysis

A. Grounds for Termination

The first issue before this Court is whether DCS clearly and convincingly proved grounds

for termination. This Court will affirm a trial court's finding of grounds if DCS clearly and

convincingly proved at least one of the statutory bases for termination. State, Dep't of Children's

Servs. v. Mims, 285 S.W.3d 435, 449 (Tenn. Ct. App. 2008) (citation omitted). The grounds before

this Court are abandonment, Tenn. Code Ann. § 36-1-113(g)(1), substantial noncompliance with the

permanencyplans, Tenn. Code Ann. § 36-1-113(g)(2), and persistence of the conditions that required

the removal of the children, Tenn. Code Ann. § 36-1-113(g)(3).

1. Abandonment by Incarcerated Parents

Tennessee Code Annotated section 36–1–113(g)(1) provides for termination if

“[a]bandonment by the parent or guardian, as defined in § 36-1-102, has occurred . . . .” As pertinent

to this issue, Tennessee Code Annotated section 36-1-102 provides:

(1)(A) For purposes of terminating the parental or guardian rights of parent(s)

or guardian(s) of a child to that child in order to make that child available for

adoption, “abandonment” means that:

. . . .

(iv) A parent or guardian is incarcerated at the time of the institution of an

action or proceeding to declare a child to be an abandoned child, or the parent or

guardian has been incarcerated during all or part of the four (4) months immediately

preceding the institution of such action or proceeding, and either has willfully failed

to visit or has willfully failed to support or has willfully failed to make reasonable

payments toward the support of the child for four (4) consecutive months

immediately preceding such parent's or guardian's incarceration, or the parent or

guardian has engaged in conduct prior to incarceration that exhibits a wanton

disregard for the welfare of the child; . . . .

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

we explained the definition of abandonment in the context of incarcerated parents:

This definition contains two distinct tests for abandonment. These additional tests

for abandonment apply only if a parent is incarcerated at or near the time of the filing

of the termination petition. The first test asks whetherthe parent “has willfully failed

to visit[,] . . . support [,] or . . . make reasonable payments toward the support of the

child for four (4) consecutive months immediately preceding such parent’s . . .

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incarceration.” Tenn. Code Ann. § 36–1–102(1)(A)(iv). This test tracks the

language of the first statutory definition of abandonment but shifts the focus from the

four-month period immediately preceding the filing of the termination petition to the

four-month period immediately preceding the parent's incarceration. The concept of

“willfulness” is the same under both provisions. Tenn. Code Ann. §

36–1–102(1)(B)–(E). The second test asks whether the parent “has engaged in

conduct prior to incarceration which exhibits a wanton disregard for the welfare of

the child.” Tenn. Code Ann. § 36–1–102(1)(A)(iv). This test has no analog in the

first statutory definition of abandonment, and it is not expressly limited to any

particular four-month period.

Id. at 865. The trial court determined that Mother and Father abandoned the children based on their

willful failure to make reasonable payments toward the support of the children for four consecutive

months immediatelypreceding their incarceration, and forwanton disregard. We shall consider each

in turn.

a. Willful Failure to Make Reasonable Child Support Payments

In the case at bar, DCS filed the petition to terminate Mother and Father’s parental rights on

November 4, 2010. Thus, the relevant four month period immediately preceding the filing of the

termination petition was July 4, 2010 through November 4, 2010. During this time, Mother was

incarcerated from August 8, 2010 to August 25, 2010, and from August 27, 2010 to September 21,

2010. Father was incarcerated on July 4, 2010, and from September 29, 2010 to October 5, 2010.5

The last four month period in which Mother was not incarcerated was from February 28, 2010 to

June 28, 2010. The last four month period in which Father was not incarcerated was from November

21, 2009 to March 21, 2010. At the preliminary hearing on July 15, 2009, the trial court ordered

Mother and Father to pay child support in the amount of $25.00 per week. Thereafter, the trial court

modified this amount with regard to Father, and ordered him to pay $201.50 per month beginning

From the time the children were removed from their parents until the time of the termination 5

hearing, Mother was incarcerated seven times and Father was incarcerated nine times.

Mother’s time spent incarcerated was: July 5, 2009 to July 6, 2009 (underage drinking); September

8, 2009 to September 10, 2009 (underage drinking); September 17, 2009 to September 18, 2009 (underage

drinking); September 29, 2009 (violation of probation); June 29, 2010 (failure to appear); August 8, 2010

to August 25, 2010 (mittimus warrant); and August 27, 2010 to September 21, 2010 (violation of probation).

Father’stime spent incarcerated was: March 22, 2010 (vandalism); April 13, 2010 to April 14, 2010

(domestic assault); May 28, 2010 to May 30, 2010 (domestic assault); June 4, 2010 to June 6, 2010 (domestic

assault); June 11, 2010 to June 12, 2010 (domestic assault); July 4, 2010 (reckless driving); September 29,

2010 to October 5, 2010 (aggravated assault and violation of probation); February 16, 2011 to March 1, 2011

(failure to appear to serve jail sentence, assault, evading arrest, driving on a cancelled/suspended license, and

two counts of violation of probation); and March 2, 2011 to June 9, 2011 (failure to appear, evading arrest,

and driving on a cancelled/suspended license).

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on January 1, 2010. 

It is undisputed that Father did not make any child support payments since the children were

removed into the custody of DCS. Father argues that he could not afford to make any payments,

therefore his failure to do so could not be seen as willful. The record, however, indicates that Father

was capable of working during this time, and that he was employed at various times, including jobs

he worked in Union City and at McCarthey’s Produce. Thus, we agree with the trial court’s

conclusion that Father abandoned the children by willfully failing to make reasonable payments

toward their support during the four consecutive months in which he was not incarcerated.

Although the record indicates that Mother made two child support payments 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 afford to support her

frequent illegal drug usage. In light of Mother’s failure to make a single payment for approximately

ten months, these two court ordered payments were nothing more than token support. Moreover,

the fact that it took a court order to finally force Mother to pay child support could hardly be

considered willful conduct on her behalf. Accordingly, we find no error in the trial court’s

determination that Mother abandoned the children by willfully failing to make reasonable payments

toward their support during the four consecutive months in which she was not incarcerated.

b. Wanton Disregard

As noted above, the trial court also concluded that Mother and Father abandoned the children

because, prior to their incarceration, they engaged in conduct that exhibited a wanton disregard for

the welfare of the children. The trial court found that Mother’s failure to resolve her legal issues,

obtaining additional criminal charges resulting in her incarceration, and continued use of illicit drugs

all amounted to wanton disregard. The trial court also found that Father’s incarceration for

aggravated assault and continued use ofillicit drugs constituted wanton disregard within the meaning

of the statute. As this Court has frequently held, “probation violations, repeated incarceration,

criminal behavior, substance abuse, and failure to provide adequate support or supervision for a child

can, alone, or in combination, constitute conduct that exhibits a wanton disregard for the welfare of

a child.” In re Audrey S., 182 S.W.3d 838, 867-68 (Tenn. Ct. App. 2005). In the case at bar, Mother

and Father admitted, and numerous drug screens proved, that they abused drugs while their children

were in the custody of DCS. Moreover, Mother and Father were repeatedly incarcerated, at times

for violating probation, and both failed to provide adequate support for their children. In light of the

totality of the circumstances, we find that clear and convincing evidence exists to support the trial

court’s termination of Mother and Father’s parental rights on the ground of abandonment by

incarcerated parents for wanton disregard.

2. Substantial Noncompliance

Tennessee Code Annotated section 36-1-113(g)(2) establishes a ground for termination if

“[t]here has been substantial noncompliance by the parent or guardian with the statement of

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responsibilities in a permanency plan or a plan of care pursuant to the provisions of title 37, chapter

2, part 4.” Tenn. Code Ann. § 36-1-113(g)(2). Termination for substantial noncompliance is

warranted only when the plan's requirements are “‘reasonable and related to remedying the

conditions which necessitate foster care placement.’” In re Valentine, 79 S.W.3d 539, 547 (Tenn.

2002) (quoting Tenn. Code Ann. § 37-2-403(a)(2)(C)). The determination of whether

noncompliance is substantial compares the degree of noncompliance with the importance of the

unmet obligation. In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004) (citations omitted). 

“Trivial, minor, or technical deviations from a permanency plan’s requirements will not be deemed

to amount to substantial noncompliance.” Id. at 656-57 (citations omitted).

In its final order terminating Mother and Father’s parental rights, the trial court states:

[Mother] has not substantially complied with the responsibilities and requirements

set out for her in the permanency plans. [Mother] has not complied with the

recommendations of her alcohol and drug treatment program at Buffalo Valley, she

has incurred additional legal charges, she has failed to provide proof that she applied

for the Safety Net program at Carey Counseling, she has failed to demonstrate

effective parenting skills, and she has failed to obtain a mental health intake and

follow the recommendations.

[Father] has not substantially complied with the responsibilities and requirements set

out for him in the permanency plans. [Father] has not demonstrated the ability to

control his anger, he has continued to test positive or admit to illicit drug use; he has

failed to provide verification of a stable home through rent and utility receipts, he has

failed to pay child support, and he has incurred new criminal charges.

. . . .

Despite assistance from DCS, [Mother] has not followed the recommendations of her

discharge summary from Buffalo Valley and continues to acknowledge she uses

drugs and has a drug problem. [Mother] has not established a safe and stable home

for the children nor has she [been] attending counseling to address her mental health

needs. [Mother] has also failed to pay child support for the children.

Despite assistance from DCS, [Father] has not completed alcohol and drug

counseling or anger management counseling. [Father] continues to admit that he is

using illegal drugs. [Father] has not resolved his legal issues and has obtained

additional criminal charges for assault.

We agree with the trial court that clear and convincing evidence existed to terminate the

parental rights of Mother and Father based on their substantial noncompliance with the permanency

plans. As noted above, the permanency plans for Mother and Father required that they remain drug

and alcohol free, complete anger management counseling, complete alcohol and drug counseling,

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provide a safe and stable home for the children, attend parenting classes, comply with the

recommendations of counselors and assessments, and comply with all laws and requirements of

probation. These requirements illustrate the ultimate goal for the parents which was to eliminate the

drug abuse, domestic violence, and unsafe living conditions that the children were subjected to

before they were removed into the custody of DCS.

Unfortunately, both Mother and Father failed to comply with these requirements. Mother

failed to complete a 12-step program, failed to consistently attend alcoholics anonymous, and did

not engage in outpatient therapy as recommended by her alcohol and drug assessment. Following

her completion of inpatient treatment at Buffalo Valley for her drug abuse issues, Mother tested

positive on six different occasions for various drugs. Likewise, Father failed drug screens on three

different occasions. Father also did not follow through with the requirements regarding anger

management and domestic violence issues. Most notably, Father admits in his brief that he stopped

working toward the plan requirements in April 2010 after he was arrested for domestic assault

against Mother during an unsupervised visit with the children. After that incident, Father admitted

to smoking large amounts of methamphetamine, and eventually began refusing DCS’s attempts to

administer drug screens, stating that he would test positive. Accordingly, we find no error in the trial

court’s decision to terminate the parental rights of Mother and Father for substantial noncompliance

with the permanency plans.

3. Persistence of Conditions

Tennessee Code Annotated section 36-1-113(g)(3) establishes a ground for termination if:

The child has been removed from the home of the parent or guardian by order of a

court for a period of six (6) months and :

(A) The conditions that led to the child's removal or other conditions that in

all reasonable probability would cause the child to be subjected to further abuse or

neglect and that, therefore, prevent the child's safe return to the care of the parent(s)

or guardian(s), still persist;

(B) There is little likelihood that these conditions will be remedied at an early

date so that the child can be safely returned to the parent(s) or guardian(s) in the near

future; and

(C) The continuation of the parent or guardian and child relationship greatly

diminishes the child's chances of early integration into a safe, stable and permanent

home[.]

Tenn. Code Ann. § 36-1-113(g)(3)(A)-(C). A finding of persistence of conditions is permissible

only if DCS presents clear and convincing evidence to establish each statutory element. In re

Giorgianna H., 205 S.W.3d 508, 518 (Tenn. Ct. App. 2006) (citation omitted).

On August 5, 2009, the trial court entered an order removing the children into the custody

of DCS. The conditions that led to the removal of the children included Mother and Father’s history

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of drug abuse, domestic violence in the home, and volatile living environment. In its final order, the

trial court concluded:

Those conditions still persists as [Mother] and [Father] continue to admit to using

illegal drugs and they have been involved in incidents of assault since the removal.

[Mother] has failed to successfully complete alcohol and drug treatment by not

following the recommendations of her inpatient program and by continuing to abuse

drugs. [Mother] has not established a safe and stable home for the children. [Father]

continues to use illegal drugs and has not established a safe and stable home for the

children.

Afterreviewing the record, we agreewith the trial court’s determination that DCS clearlyand

convincingly proved the ground of persistence of conditions. At the time of the termination hearing,

Mother and Father were struggling with the same drug abuse and domestic violence issues that

caused their children to be removed from their custody fourteen months earlier. Despite the efforts

of DCS, Mother and Father failed to make the necessary progress to ensure a safe and stable living

environment in which to raise their children. The record clearly shows that Mother and Father either

refuse to, or cannot, change their circumstances in the foreseeable future. Given the parents’

ongoing issues of drug abuse and domestic violence, the continuation of the parent-child relationship

greatly diminishes the chances of the children integrating into a safe, stable, and permanent home. 

Furthermore, the children are thriving in DCS custody, are “happy little boys,” and DCS plans to

pursue adoptions for the children. Termination of parental rights on the ground of persistence of

conditions is intended “to prevent the child’s lingering in the uncertain status of foster child if a

parent cannot within a reasonable time demonstrate an ability to provide a safe and caring

environment for the child.” In re Arteria H., 326 S.W.3d 167, 178 (Tenn. Ct. App. 2010) (citations

omitted). Therefore, we affirm the trial court’s decision to terminate the parental rights of Mother

and Father on the ground of persistence of conditions.

B. Reasonable Efforts

The next issue before this Court is whether DCS made reasonable efforts to help reunite

Mother and Father with the children. The decision to pursue a termination of parental rights on the

grounds of abandonment, persistence of conditions, and substantial noncompliance generallyinvokes

DCS's statutory duty to make reasonable efforts to facilitate the safe return of a child to the child's

home. In re R.L.F., 278 S.W.3d 305, 315 (Tenn. Ct. App. 2008) (citing Tenn. Code Ann. §

37–1–166(b), –166(a)(2), –166(g)(2)); see also In re Tiffany B., 228 S.W.3d 148, 151, 160 (Tenn.

Ct. App. 2007) (vacating a finding of abandonment, substantial noncompliance, and persistence of

conditions for failure to make reasonable efforts). Although DCS may be relieved of its duty to

make reasonable efforts after a court of competent jurisdiction finds “aggravating circumstances,”

Tenn. Code Ann. § 37–1–166(g)(4)(A)–(C), it cannot withhold reasonable efforts “‘in the hopes that

a court will later make a finding . . . that retroactively ‘forgives’ DCS’s lack of efforts. . . .’” 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

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4322068, at *9 (Tenn. Ct. App. Dec.6, 2007)).

The statutory duty to make reasonable efforts includes an obligation to exercise “‘reasonable

care and diligence . . . to provide services related to meeting the needs of the child and the family.’” 

In re R.L.F., 278 S.W.3d at 316 (emphasis omitted) (citing Tenn. Code Ann. § 37–1–166(g)(1)). 

Courts evaluate the reasonableness of DCS's efforts in light of the following factors:

(1) the reasons for separating the parents from their children, (2) the parents' physical

and mental abilities, (3) the resources available to the parents, (4) the parents' efforts

to remedy the conditions that required the removal of the children, (5) the resources

available to the Department, (6) the duration and extent of the parents' efforts to

address the problems that caused the children's removal, and (7) the closeness of the

fit between the conditions that led to the initial removal of the children, the

requirements of the permanency plan, and the Department's efforts.

In re Tiffany 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 reasonableness of DCS's efforts “on a

case-by-case basis in light of the unique facts 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 burden is on

DCS to prove clearly and convincingly the reasonableness of its efforts. In re R.L.F., 278 S.W.3d

at 316 (citing In re B.B., No. M2003–01234–COA–R3–PT, 2004 WL 1283983, at *9 (Tenn. Ct.

App. June 9, 2004)).

The exercise of reasonable efforts is important because “[t]he success of a parent’s remedial

efforts generally depends on the Department's assistance and support.” In re Giorgianna H., 205

S.W.3d at 518 (citations omitted). DCS employees must affirmatively and reasonably utilize their

education and training to help parents eliminate the conditions requiring removal of their children

and to meet the responsibilities of their permanency plans before courts will terminate the

parent-child relationship. In re R.L.F., 278 S.W.3d at 316 (citations omitted). DCS's duty to

affirmatively assist parents exists even if the parents do not seek assistance. Id. (citing In re C.M.M.,

2004 WL 438326, at *7). “While the Department's reunification efforts need not be ‘herculean,’ the

Department must do more than simply provide the parents with a list of services and send them on

their way.” In re Giorgianna H., 205 S.W.3d at 519 (citation omitted).

The legislature, however, did not place the burden to reunify parent 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-way street, and neither law nor policy requires the

Department to accomplish reunification on its own without the assistance of the parents.” In re

Tiffany B., 228 S.W.3d at 159 (citations omitted). “Parents share the responsibility for addressing

the conditions that led to the removal of their children from their custody.” Id. Once services have

been made available, parents must make reasonable efforts to rehabilitate themselves. Id. (citations

omitted).

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Regarding the efforts of DCS to assist Mother and Father, the trial court’s final order

provides:

[DCS] has made reasonable efforts to assist the parents in achieving the goals on the

permanency plans. Ms. Reeves referred [Mother] to Wolfe Counseling for a

parenting assessment and DCS paid for said assessment. Ms. Reeves has seen

[Mother] at least weekly since August 2009, and in February 2011 began seeing her

twice weekly, to assist in supervising additional visitations. Ms. Reeves spoke with

[Mother] about the need for her to successfully complete services and what needed

to be done to complete the tasks on the Permanency Plan each time she met with her. 

Ms. Reeves provided transportation to [Mother] on various occasions and [Mother]

was aware she could contact Ms. Reeves for transportation. Ms. Reeves sat with

[Mother] at a visit and called and made an appointment for counseling services after

[Mother] missed an appointment and had not rescheduled it. [Mother] also failed to

attend the appointment they set together. Despite her encouragement and offers to

help, Ms. Reeves was not able to motivate [Mother] to attend her appointments as

recommended or address her substance abuse issues. [Mother] always appeared

honest regarding her drug usage and would acknowledge her drug use during their

conversations. Throughout the duration of the case, [Mother] stayed with various

friends and family and did not have a stable residence. [Mother] and [Father]

established a residence . . . in Paris, Tennessee, and DCS paid for the first month of

utilities and rent to assist them. However, they did not remain in the home. [Mother]

also informed Ms. Reeves that she was unaware of anything else Ms. Reeves could

do to get her to complete the tasks on the Permanency Plans and that she knew what

she needed to do.

Ms. Reeves provided transportation to [Father]; referred him for services at Nova

Counseling; and provided in-home services and therapeutic visitation through Wolfe

Counseling.

As mentioned above, DCS provided and paid for numerous services for Mother and Father. 

DCS referred them to counseling programs; followed up with them if they missed counseling and

rescheduled missed appointments; provided parenting classes; provided drug and alcohol

assessments; paid for Father’s drug and alcohol assessment and anger management; provided

multiple drug screens; supervised visits; provided transportation; and when Mother and Father were

in danger of losing their home, paid their rent and utility bill in order to keep supervised visits stable

for them. Moreover, Mr. Thompson testified at the termination hearing that DCS paid for all

services provided and worked very close with the counseling center to assist the parents with their

drug abuse, anger management, domestic violence, and parenting issues. Unfortunately, Mother and

Father failed to take advantage of the services offered to them. Instead, it was Mother and Father’s

ongoing drug abuse, domestic violence, and repeated incarceration that impeded the ability of DCS

to assist them. Furthermore, Father admits that, besides attending supervised visitation, he made no

efforts to comply with the permanency plans after April 2010 when he was arrested for domestic

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assault against Mother. In light of the forgoing discussion, we conclude that DCS made reasonable

efforts to reunify Mother and Father with their children.

C. Best Interests

Finally, we must address whether termination of Mother and Father’s parental rights was in

the best interests of the children. Termination of parental rights is appropriate only if clear and 6

convincing evidence establishes that eliminating those rights is in the best interests of the child or

children named in the petition. Tenn. Code Ann. § 36–1–113(c)(2) (2010). Courts consider the

following non-exhaustive list of factors when determining the best interests of a child:

(1) Whether the parent or guardian has made such an adjustment of

circumstance, conduct, or conditions as to make it safe and in the child's best interest

to be in the home of the parent or guardian;

(2) Whether the parent or guardian has failed to effect a lasting adjustment

after reasonable efforts byavailable social services agencies for such duration of time

that lasting adjustment does not reasonably appear possible;

(3) Whether the parent or guardian has maintained regular visitation or other

contact with the child;

(4) Whether a meaningful relationship has otherwise been established

between the parent or guardian and the child;

(5) The effect a change of caretakers and physical environment is likely to

have on the child's emotional, psychological and medical condition;

(6) Whether the parent or guardian, or other person residing with the parent

or guardian, has shown brutality, physical, sexual, emotional or psychological abuse,

or neglect toward the child, or another child or adult in the family or household;

(7) Whether the physical environment of the parent's or guardian's home is

healthy and safe, whether there is criminal activity in the home, or whether there is

such use of alcohol or controlled substances as may render the parent or guardian

consistently unable to care for the child in a safe and stable manner;

(8) Whether the parent's or guardian's mental and/or emotional status would

be detrimental to the child or prevent the parent or guardian from effectively

providing safe and stable care and supervision for the child; or

(9) Whether the parent or guardian has paid child support consistent with the

child support guidelines promulgated by the department pursuant to § 36–5–101.

Mother does not challenge the trial court’s best interest determination on appeal. Nevertheless, we 6

shall consider this issue as it relates to both Mother and Father. See In re: A’Mari B., 358 S.W.3d 204, 211

(Tenn. Ct. App. 2011) (“In the interest of justice” this Court analyzed the trial court’s best interest

determination as to both parents despite Mother’s failure to raise the issue on appeal); see also In re: Johnny

J.E.M., No. E2011-02192-COA-R3-PT, 2012 WL 1929802, at *12 n.3 (Tenn. Ct. App. May 29, 2011)

(“Although Father does not challenge the trial court’s best-interest determination, we review this issue as to

both Mother and Father.”).

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Tenn. Code Ann. § 36–1–113(i)(1)–(9). “Every factor need not be applicable in order for the trial

court to determine that it is in the best interest of the child for a parent's right[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 weight and relevance of these factors may vary from case to case

and it is possible that a single factor is determinative. Id. (citing In re Audrey S., 182 S.W.3d 838,

878 (Tenn. Ct. App. 2005)). In evaluating the issue of best interests, the court must remember that

any conflict between the best interests of a child and the adult parent “shall always be resolved to

favor the rights and the best interests of the child. . . .” Tenn. Code Ann. § 36–1–101(d).

For the reasons discussed above, we agree with the trial court that Mother and Father have

failed to make an adjustment of circumstances in their lives to make it safe for the children to be

returned to their home. Despite the efforts of DCS, Mother and Father continue to struggle with the

same drug abuse and domestic violence issues that plagued their home when the children were

removed from their custody. Also, Mother and Father have failed to support the children. On the

other hand, the children have adapted to their current environment, and DCS plans to pursue

adoptions for the children with their foster family. To return the children to Mother and Father while

they continue to struggle with drug abuse and domestic violence would undoubtedly be detrimental

to the children’s emotional and physical well-being. Therefore, we conclude that the evidence

presented clearly and convincingly established that terminating the parental rights of Mother and

Father was in the best interests of the children.

V. Conclusion

For the foregoing reasons, we affirm the judgment of the trial court. Costs of this appeal are

taxed to the Appellants, Christina P. and Steven D., for which execution may issue if necessary.

_________________________________

DAVID R. FARMER, JUDGE

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