### IN THE CO URT OF APPEALS OF TE NNE SS EE AT NASHVILL E Aug us t 6 , 20 09 Ses si on

In re T.D.M.C. A N D 

### D.M.A.

Appeal f rom the Juvenile Court for Dickson Coun ty No. 07-08-062- CC A. Andrew Jackson, Ju dge

No. M2009- 00475-COA-R 3-P T - F iled October 12, 2009

Mother appea ls from a juvenile court order terminating her pare ntal rig hts to her t wo ch i l d ren. Fa ther appea ls a

n order terminating his pa renta l r ights to his child with Mother. Finding clea r and convincing evidenc e to support the juvenile c ourt’s dete rmination, we a ffirm.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Juvenile Court Affi rm ed

AN D Y D. B E N N E T T , J
., delivere d the opinion of the court, in which R I C H A R D H. D I N K I N S , J
., joined. P A T R I C I A J

. C O T T R E L L , P.J
., M.S., not participating

.

Anita L y nn Vinson Coffinberr

y , Erin, Tenne ssee, f

or the a ppellant, J .S.A.

J ames L eonar d Ba

um, Burns, Te nnessee , for the a ppellant, M.H.D.M.

Robert E. Cooper, J r., Attorney Gene ral and Reporter ; Michae l E. Moore, Solicitor Gen e r a l; D oug las Earl Dimond and J oshua Davis Ba ker, Assistant Attorney s Gene ral; for t h e ap p ell ee, State of Tenne ssee.

OP INION

F A C T U A L A N D P R O C E D U R A L B A C K G R O U N D

M.H.D.M. (“Mother ”) is the mother of T.D.M.C., born May 2005, and D.M.A., born Aug ust 2006. J .S.A. ( “F ather ”) is the fathe r of D.M.A. The De partment of Children’ s Services (“D CS”) 1

J

. S

. A

. w a s n o t e s t a b l i s h e d a s t h e l e g a l f a t h e r o f D

. M

. A

. a n d o r d e r e d t o p a y c h i l d s u p p o r t u n t i l N o v e m b e r 2 0 0 7
, 1

a f t e r D

. M

. A

. w a s i n s t a t e c u s t o d y

. A t t r i a l
, M o t h e r r e f e r r e d t o h e r h u s b a n d
, W

. F

. C

. , a s T

. D

. M

. C

. ’ s “ f a t h e r

. ” H o w e v e r , M o t h e r i d e n t i f

i e d a n o t h e r m a n a s T

. D

. M

. C

. ’ s b i o l o g i c a l f a t h e r

. M o t h e r w a s m a r r i e d t o W

. F

. C

. a t t h e t i m e o f T

. D

. M

. C

. ’ s b i r t h a n d r e m a i n e d m a r r i e d t o W

. F

. C

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

. D

. M

. C

. a n d D

. M

. A

. w e r e i n s t a t e c u s t o d y

.first filed a petitio n to terminate Mother’s and Fa ther’s pare ntal rig hts on April 23, 2008. DCS 2 voluntarily dismiss ed its petition on J une 11, 2008, and filed a second petition to terminate pare ntal rig hts on J uly 28, 2008. On Februa ry 17, 2009, the j uvenile co urt issued an order terminating the
pare ntal rig hts of both Mothe r and Fa ther, concluding that the petitioners clea rly and convincing ly established statutory

g rounds and that ter

mination was in the best intere st of the childre n.

DCS first beca

me involved with T.D.M.C. on May 4, 2005, afte r rec eiving a ref err al on the basis that Mother’s pare ntal rig hts to two other children in state custody wer e subject to termination
proce eding s. At the time, Mother was unemploy ed and living with r elatives in B urns, Tenne ssee. DCS place d family support service s in the home to assist Mother in car ing for T.D.M.C

. DCS

rec eived a second ref

err al on J une 12, 2005, and discovere d that Mother was stay ing with the sister of the fathe r of one of Mother’s other children. This man is a reg istered sex offe nder, and the sister stated that he visited the house fre quently

. DCS arr ang ed for T.D.M.C. to stay with a rela tive until Mother could e stablish a stable home a nd beg in working with DCS support services.

On J uly 22, 2005, DCS filed a petition to have T.D.M.C. adjudicate d d ep en d ent and
neg lected. T.D.M.C. was remove d from Mother but was returne d in May 2 0 0 6 ; family support service s rema ined in the h o m e. Af t er T.D.M.C. was returne d to her, Mother was arr ested and convicted for shoplifting. She was evicted from her apar tment in Aug ust 2006 for failure to pay rent. D.M.A. wa s born that same month.

I n October and November 2006, DCS was una ble t o locate Mother. I n November 2006, a juvenile court g ave DCS temporar y custody of T.D.M.C. and D.M.A. on the basis that the children could not be located, Mother had failed to comply with a court order that she contac t her case manag er ever

y wee k, and Mother’s instabilit y made it difficult for her to pare nt the children. DCS
contac ted rela tives of Mother to attempt to discover her wher eabouts and ultimately repor ted the children as missing to the Dickson Police Depa rtment. Mother finally contac ted DCS on Dec ember 11, 2006, and stated that she ha d taken the c hildren to Texas and would re turn to Tennesse e at the end of the m onth. Howeve r, on J anuar y 9, 2007, Mother called DC S and st ated that she i ntended to remain in Texas and ha d no plans to return to Te nnessee

.

Mother returne d to Tenne ssee in J anuar y 2007 and moved i n wi t h a b rot her. When DCS attempted to conduct a stud y of hi s home, he ref used t o let the case worker insi de. T.D.M.C. and D.M.A. we re r emoved f

rom Mother and place d in a foster home on Marc h 27, 2007. Mother wa s

arr ested in April 2007 for violating the terms of her probation for shoplifting by failing to repor t to her pr obation office r. She wa s incarc era ted from Apr il-October 2007.

Permane ncy plans wer e implemented for D.M.A. and T.D.M.C. on April 12, 2007, and May 23, 2007, respe ctively

. Under the plans, Mother was require d to contac t DCS to schedule visitation and coop er at e with DCS reg arding visitations; underg o pare nting, clinical, and drug and alcohol

D C S a l s o s o u g h t 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 W

. F

. C

. , b u t t h e m a t t e r w a s c o n t i n u e d f o r p r o p e r s e r v i c e 2

o f p r o c e s s t o b e c o m p l e t e d

.
-2-assessments and follow all rec ommendations; submit to a home study once a resi d en ce was

established; submit to random drug scre ens; ref rain from involvement in illega l drug activities; and resolve a ll lega l issues.

I n J une 2007, Mother underwent an alcohol and d ru g assessment which indi cate d that she did not have a problem that require d additional trea tment. Mother’s pare nting assessment reve aled that she lacke d the ability to proper ly dis ci p l i n e her children or to manag e her own life. I t was

rec ommended that she participa te in pare nting skills education and individual counseling to help her become self-suf

ficient. Mother met with a family counselor three times from J u l y t o S ep t ember 2007, while she was incar cer ated, to work on pare nting skills and persona l ma nag ement skills like balanc ing a chec kbook. A DCS social worke r met with Mother in October 2007 shortly befor e her rele ase f rom jail to advise her

about the importanc e of finding a job a nd comply ing with the terms of the pe rmane ncy

plans.

Mother obtained a job with Br idge stone in J anuar y 2008 but was fired in Marc h beca use of tardiness and failure to s h o w u p to work. The state of Texas had previously suspended Mother’s driver’ s license for knowing ly failing to pay a fine. Once the license was suspended, Mother claimed she wa s unable to pay

the fe es to have it reinstated and w as there fore forc ed to rely on her br other for transporta tion. Mother alleg ed that she was fired from Br idge stone beca use her brother was late picking her up f

or work two times a

nd beca use she ha d to miss work once with the flu.

New perma

nency plans for T.D.M.C. and D.M.A. wer e enter ed and signe d by Mother on April 17, 2008. Mother’s obliga tions under the plan wer e to cooper ate with DCS and follow all rules

r e g a r d in g v is it a

ti o n ; complete pare nting education classes; rec eive counseling as rec omme n d e d f r o m the pare nting assessment; secur e an d m ai ntain employ ment; provide financ ial support for her children; find adequate housing, submit to a home study
, and provide a safe and stable home for her children; resolve all leg al issues; submit to random drug scre ens; ref rain from involvement in illega l activities; abide by

all court orde rs; and kee p DCS informed of her wher eabouts.

S h o rt l y there afte r, Mother was arr ested for driving on a suspended license and order ed to spend wee kends in ja il f

rom April to J une 2008. DCS provide d Mother with supe rvised visitation services in April 2008. Howeve r, Mother ref used to participa

te in the pare nting skills training
, maintaining tha t she did not need such tr aining . Mother wa s arr ested a nd incar cer ated a g ain from J une 19 to Aug ust 20, 2008, for failure to pay co u rt fi n es

. A family service s counselor provided service s to Mother for four months in the fall of 2008 i n an attempt to assist her in stabiliz ing her lifesty le. The counselor was only able to meet wi t h h er fi v e times during the four- month period beca use he ha d trouble conta cting her a nd beca use of he r most rec ent incar cer ation.

DCS petitioned the Dickson County J uvenile Court to terminate Mother’s pare ntal rig hts to T.D.M.C. and D.M.A. on J uly 28, 2008. At the time of trial, Mother was l iving in fede rally

s u b s i d i z ed housing, and her brother was pay ing her rent of $61 per month beca use she could no t aff ord it. As of J uly 31, 2008, Mother had not visited her children since May 2, 2008. Mother was unemploy ed and ha d failed to make any child support pay

ments.

-3-Fa ther’s circumstanc es si nce D.M.A.’s bi rth wer e si milarly unst able. Fa ther’s obligations under the April 12, 2007 perma nency plan for D.M.A. wer e to submit to a pater nity test to establish that he was the fathe r of D.M.A.; consistently visit D.M.A.; keep DCS informed of his wher eabouts; attend all meeting s and court hear ings reg arding D.M.A.; abide by all court o rd er s ; co m plete a pare nting assessment an d f o ll o w a ll r e c ommendations; complete pare nting classes; provide financ ial support for D.M.A .; and submit to a home study

.

Prior to J une 2007, F ather had bee n arr ested on drug -re lated cha rg es. On June 7, 2007, he

was arres t ed for ag g rava ted robber y and ag g rava ted assault. On Fe bruar y 12, 2008, Fa ther pled
g uilty to drug and ag g rava ted assault char g es. He was sentenc ed to eig ht y ear s of co m m u n ity

co rr ections. As part of his sentenc e, he was also require d to maintain employ ment and submit to drug scre ens. He tested positive for marijuana on four occa sions during this time and failed to meet the re quirements of his community corr ections sentenc e.

Under the terms of the April 17, 2008 revised perma nency plan, Fa ther was require d to contac t and cooper ate with DCS reg arding the scheduling of visitation; consistently visit and work

on building a rela tionship with D.M.A. ; co m plete pare nting education classes; abide by all court order s; keep DCS informed of his wher eabouts; attend al l m eetings and doctor’s appointments
reg arding D.M.A.; provide f inancial support f

or D.M.A.; and submit to a home study

.

On Dec ember 11, 2007, the juvenil e co u rt o rdered Fa ther to beg in making child support pay ments for D.M.A. Fa ther was order ed to pay $54.46 per wee k in child support and $5.54 per

wee k i n ar re ar age pay

ments beg inning Dece mber 14, 2007. Fa ther was employ ed from April 16, 2008, until J uly

15, 2008, when he was fired. F ather paid a total of $580.04 in c hild support from the entry of the order in Dec ember until he was fired. Under the court order
, his total obliga tion for that seven- month period was a pproxi mately

$1800.

After a pare nting assessment, it was rec ommended that Fa ther complete pare nting education and participa te i n t h er ap euti c visitation with D.M.A. L ou J err ett beg an providing thera peutic visitation service s for Fa ther in November 2007 and p are nting service s in J anuar y 2008. She testified that she had difficulty scheduling training and visitation with him beca use he did not have transporta tion a

nd beca use of his work a

nd drug reha

bilitation s chedule . Natasha Schuler wor

ked with Fa ther from Marc h to May 2008 providing supervised visitation and pare nting instruction. Ms. Schuler initially transporte d D.M.A. to Fa ther’s sister’s home for visits, but the visits stopped when Fa ther’s sister forc ed him out of her home. Fa ther then moved in with a friend but did not g ive Ms. Schuler his new contac t information. At that point, Ms. Schuler rec ommended that the supervised visitation stop beca

use Father lacked stable housing a nd D.M.A. could not be ta ken to a home for visitation until a home study had been completed. Ms. J err ett ag ai n provided visitation and pare nting service s for Fa ther from J une throug h Aug ust 2008. Fr om November 2007 to Aug ust 2008, Fa ther
p ar t i ci p ated in ten supervised visits and eig ht pare nting sessions. Ms. J err ett testified that Fa t h er visited D.M.A. very

sporadica lly , sometimes going a month at a time without visiti ng

.

-4-I n September 2008, Fa ther had anothe r ch i l d with his fianc ee, Ashley Sweene y

. Be cky

Parker
, a DCS court liaison, conducte d a study of their home beca use Ms. Swe eney had petitioned the court for unsupervised visitation of her own two children. Fa ther was not then employ ed but told Ms. Parker that he was about to beg in a construction job, althoug h he did not know the name of the
company . L ater he tol d her that he quit that job beca use t hey would not pay

him commissi on and that he had beg un to work for a car pet g allery

. When Ms. Parker called to confirm his employ ment,

no one at the car

pet g allery knew of Fa

ther. As part of her investiga tion, Ms. Parker discovere d that Ms. Sweene y had convictions for DU I an d theft and a pending assault char g e for an incident that

occur red while she was preg nant. Ms. Sweene y ’s own mother initially provided a favor able ref ere nce a s part of the home study , but she later w ithdrew her r efe renc e bec ause of an incident in which she discovere d Fa ther and Ms. Sweene y had eng ag ed in excessive drinking and drug use while they wer e supervising a thirteen-y ear -old. On a separ ate occa sion, a DCS investiga tion reve aled that Fa ther a nd Ms. Sweeney

had exposed two minors to drug s and alc ohol during a trip to Nashville. The Hic kman County

J uvenile Court denied Ms. Swee ney ’s petition for unsuper vised visitation.

At the time of trial, T.D.M.C. and D.M. A. were living with a foster family in Clarksville wher e they had resided for almost a y ear

. The foster pare nts wished to adopt them both. At the time the children came into c ustody
, T.D.M.C. could not or would not spe ak at all, despite being near ly three y ear s old. D.M.A. was eig hteen months old and could n o t s ay a s ingle word. Additionally
, both children had serious dige stive problems. T.D.M.C.’s foster mother testified that, on the advice of his p ri m ar y ca re phy sician, he had been seeing a thera pist to work on ang er and stress manag ement and was close to being acc epted into a presc hool for children who are developmenta lly delay ed due to circ umstance. J anita Oake s, a clinical social worke r with Centerstone Mental Hea lth Centers, testified that T.D.M.C. exhibi ted ag g ressive behavior when he first came into custody

. She testified that he had progr essed imm ensely in his behavior and func tioning since living in a stable home consistently

for the pa st y ear

.

S T A N D A R D S F O R 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

A pare nt has a fundame ntal rig ht to the car e, custody
, and control of his or her child. Stanley

v. Illinois
, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud
, 921 S.W .2d 170, 174 (Tenn. 1996). Thus, the state may interfe re with pare ntal rig hts only if there is a compelling state interest. NashPutnam
, 921 S.W .2d at 174-75 (citing Santosky v. K r a me r , 455 U.S. 745 (1982))

. Terminating a person’ s pare ntal rig hts “has the leg al eff ect of reduc ing t h e p are nt to the role of a complete strang er.” In re W

.B., IV
, No. M2004-00999-COA- R3-PT, 2005 WL 1021618, at *6 (Tenn. Ct. App. Apr. 29, 2005). Pursuant to Tenn. Code Ann. § 3 6 -1-113(l)(1), “[a]n order terminating pare ntal rig hts shall have the eff

ect of sever ing fore ver all lega l rig hts and obliga tions of the pare nt or g uardia n of t he child ag ainst whom the order of termination is enter ed and of t he child who i s the subject of the pe tition t o that pare nt or g uardia n.”

Our termination statutes identify “those situations in which the state’s interest in the welfa re of a child justifies interfe renc e with a pare nt’s constitutional rig hts by setting forth g rounds on which termination proce eding s can be broug ht.” In re W .B.
, 2005 WL 1021618, at *7 (citing Tenn. Code

-5-Ann. § 36-1-113( g )). To support the termination of pare ntal rig hts, petitioners must prove both the

exis tence of one of

the statutory g rounds for termination and that ter mination is i n the child’s best interest. T en n. Code Ann. § 36-1-113( c) ; In re D.L.B.
, 118 S.W .3d 360, 367 (Tenn. 2003); In re Valentine , 79 S.W .3d 539, 546 (Tenn. 2002)

.

Be cause of the fundame ntal nature of the pare nt’s rig hts and the g rave conseque nces of the termination of t hose rights, courts mus t require a hig her standa rd of pr oof in dec iding ter mination

case s. Santosky
, 455 U.S. at 769; Matter of M.W .A., Jr.
, 980 S.W .2d 620, 6 2 2 (T en n

. C t

. App. 1998). Thus, both the g rounds for termination and the best interest inquiry must be established by clea r and convincing evidenc e. Tenn. Code. Ann. § 36-1-113( c)( 1); In re Valentine
, 79 S.W .3d at 546. C l ea r an d convincing evidenc e “esta blishes that the truth of the fac ts asser ted is highly probable
, and elimi nates any serious or subst antial doubt about t he correc tness of t he conclusions draw n from the evidenc e.” In re M.J.B.
, 140 S.W .3d 643, 653 (Tenn. Ct. App. 2004) (citations omitted). Such evidenc e “produc es in a fac t-finder ’s mind a firm belief or conviction reg arding the truth of the fa cts soug ht to be established.” Id.

I n light of the heig htened standard of proof in these case s, a revie wing court must adapt the customary standard of revie w set forth by Tenn. R. App. P. 13(d). Id. at 654. As to the trial court’s finding s of fac t, our revie w is de novo with a presumption of corr ectnes s unless the evidenc e preponde rate s otherwise, in acc ordanc e with Tenn. R. App. P. 13(d). Id. We must then deter mine whether the fac ts, as found by the trial court or as supported by the preponde ranc e of the evidenc e, clea rly and convinc ingly

establish the eleme nts nece ssary to terminate pa

renta l rig hts. Id.

AN A L Y S I S

A party seeki n g t er m i nation of pare ntal rig hts must prove two elements by clea r and

co n v i n cing evidenc e: the exis tence of one of the statutory g rounds for termination and t h at termination is in the chil d ’s best interest. In re M.L.P
., 281 S.W .3d 387, 392 (Tenn. 2009); In re Valentine , 79 S.W .3d at 546; Tenn. Code Ann. § 36-1-113( c). I n the pre sent ca se, neither Mother

nor Fa ther challeng es the trial court’s finding that termination is in the best interest of T.D.M.C. and D.M.A.

A trial court is only require d to f ind one statutory

g round for

termination of par ental rig hts under Tenn. Code Ann. § 36-1-113( g ). In re D.L.B.
, 118 S.W .3d at 367. At the conclusion of proof in the prese nt case , the trial court order ed that Mother’s pare ntal rig hts to T.D.M.C. and D.M.A. be terminated on three statutory g rounds: abandonme nt, substantial noncompliance with the
perma nency plans, and the persistenc e of conditions that preve nt the return of the children. The trial 3
court order ed that Fa ther’s pare ntal rig hts to D.M.A. be terminated on two statut o ry grounds: abandonme nt and substantial noncompliance with the perma nency plans. We have conclude d that

B e c a u s e t h e o r d e r a d

j u d i c a t i n g t h e c h i l d r e n a s d e p e n d e n t a n d n e g l e c t e d w a s n o t m a d e p a r t o f t h e r e c o r d
, D C S 3

d o e s n o t a r g u e t h e a b a n d o n m e n t g r o u n d f o r p a r e n t a l t e r m i n a t i o n o n a p p e a l

.

-6-the petitioners cle arly and convinc ingly

established statutory

g rounds for termination with respe ct to both parents.

Mother

The trial court found that Mother failed to substantially comply with the perma nency plans implemented for T.D.M.C. and D.M.A. pursuant t o T enn. Code Ann. § 36-1-113( g )(2)

. Mother signe d perma

nency plans for D.M.A. and T.D.M.C. on Ap ri l 12 and May 23, 2007. These plans require d Mother to coope rate with DCS i n scheduling visitations; underg o pare nting, c linical, and drug and alcohol assessments and follow all re co m m endations; submit to a home study afte r establishing a residence; submi t to random drug sc re en s ; re fra in from invol vement in illega l drug activities; and resolve all leg al issues. Mother obtained pare nting and drug and alcohol assessments while she wa s incarc era

ted. The pa

renting assessment re veale d that Mother lacke d the abilities to discipline her c hildren prope rly and mana g e her

own life. As a

result, M other pa

rticipated in four
pare nting skills classes while she was incar cer ated. But upon her rele ase fr o m j ai l
, s he cea sed to cooper ate with DCS. Mother briefly held a job for two months in 2007, but she was fired for tardiness and failing to show up to work. Mother was also una ble to establish a st able residence

. When she was not incar cer ated, she lived with h er b ro t h er who refused to submit to a DCS home study

.

New perma

nency plans wer e enter ed for both c hildren on April 17, 2008. Under this plan, M o t h er wa s require d to cooper ate with DCS reg arding visits; underg o pare nting assessment and follow all rec ommendations; complete pare nting classes; secur e and maintain employ ment; provide financ ial s u p port for T.D.M.C. and D.M.A.; find adequate housing, submit to a home study
, and provide a safe home; resolve all leg al issues; submit to random drug scre ens; refrain from involvement in illega l activities; abide by all court order s; and keep DCS informed of her wher eabouts. DCS assisted Mother in fulfil l i n g t h es e require ments by arr ang ing pare nting skills training , family

service s counseling , and thera peutic visitation with the children. Mother insisted, howeve r, that she did not need pare nting skills training and stopped attending classes. Mother never held a job afte r the April 17, 2008 perma nency plan was enter ed. She did not establish a residenc e until the fall of 2008 and only manag ed then be cause her br other pa id her re nt of $61 per month.

Perhaps most signific antly
, Mother was unable to stay out of jail. Mother was incar cer ated from April to October 2007 for knowing ly violating the terms of her probation by leaving the state without permission and faili n g t o m eet with her probation office r. Mother was arr ested ag ain in April 2008 for driving on a suspended license and conseque ntly spent wee kends from April to J une 2008 in ja il. Finally
, Mother was incar cer ated from June 19 to August 20, 2008, for failure to pa

y court fines. During this time period, Mother failed to notify DCS when she was arr ested, and DCS was fr equently

unable to conta ct her

when she was not in jail.

The trial court also found that conditions persisted that preve nted the children’ s safe return to Mother pursuant to T en n

. Code Ann. § 36-1-113( g )(3)

. A court may terminate pare ntal rig hts

-7-when a child has been remove d for a period of six months and all of the three following conditions

are met:

(A) The conditions that led to the child’s remova l or other cond i t i o n s t hat in all

rea sonable probability would cause the child to be subjected to furt h er 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 )Ther e 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; and

(C)The continuation of the pare nt or g uardia n an d ch i l d 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)

.

The c onditions t hat led to the re moval of T.D.M.C. and D.M.A . cente red a round Mother’ s inability t o financ ially support her children and provide them with a safe and stable hom e. These conditions persisted afte r the children’ s remova l. Mother was incar cer ated for six months in 2007 and two months in 2008, in addition t o spending wee kends in jail for two months in 2008. At t he time of t rial from November 2008 to J anuar y 2009, Mother had only

been e mploy ed for a tot al of
two months since the date of the children’ s remova l. Mother had no stable housing, moving around betwee n the homes of rela tives and friends. Mother had finally acquir ed housing at the time of trial but was unable to pay rent in the amount of $61 per month. During the near ly two-y ear period that T

. D. M.C. and D.M.A. wer e in state custody
, Mother was unable to support herse lf or cha n ge h er circ umstances. Since Mother had not secur ed an income or stable housing at the time of trial, there

was no indication that the conditions that led to the children’ s remova l could be rec tified in the near future. Fur

t h er m o re , the children had the opportunity to be integ rate d into a safe
, stable, and
perma nent home. T.D.M.C.’s and D.M.A.’s foster pare nts wished to adopt them, and DCS worke rs testified that the childre n thrived under their ca re.

I n re s p onse to the trial court’s finding s, Mother alleg es that DCS failed to exercise rea sonable eff orts to reunite her with T.D.M.C. and D.M.A. Under Tenn. Code Ann. § 37-1-166( a)( 2), befor e terminating pare ntal rig hts, the trial court must make a deter mination that “re asonable eff orts” have been made that “[m] ake it possible for the child to return home.” DCS has t he burden of proving by clea r and convincing evidenc e that it made rea sonable eff orts. Tenn. Code Ann. § 37-1-166( b); In re R.L.F.
, 278 S.W .3d 305, 316 (Tenn. Ct. App. 2008). “ Reasonable eff orts” is define d as “the exercise of

rea sonable car e and dilige nce by the depa rtment to provide ser

vices re lated to meeting the needs of the child and the family .” Tenn. Code Ann. § 37-1-166( g )(1)

. Courts consider sever al fac tors in determining the re asonable ness of DCS’s ef forts, including the following :

-8-(1) [T] he rea sons f or separ ating the pare nt from his or her children, (2) the pare nt’s phy sical and mental abilities, (3) the resour ces available to the pare nt, (4) the pare nt’s eff ort s t o re m edy the conditions that require d the remova l of the children, (5) the

resour ces available to the Depa rtment, (6) the duration and ext en t o f t h e pare nt’s

reme dial eff

orts, and (7) the closene ss of the fit betwee n the conditions that led to the i nitial remova l of the children, the require ments of the perma nency plan, and t h e Depa rtment’s ef

forts.

In re Giorgianna H. , 205 S.W .3d 508, 519 (Tenn. Ct. App. 2006). T he hea lth and safe ty of the child are the chief

conce rn. Tenn. Code Ann. § 37-1-166( g )(1)

.

Mother claims that DCS did not exercise rea sonable eff orts to assist her in finding a job and obtaining stable housing. Mother points to a lack of transporta tion as the primary fac tor in both her failure to substantially comply with the perma nency plan and the persistenc e of conditions. She
arg ues that without transportation, she c ould not obtain a job, nor maintain stable housing

.

Mother relies on the testimony of J oy W alden, a DCS case worke r, who stated that the orig inal termination petition filed b y DC S wa s v o luntarily dismiss ed beca use DCS felt it had not shown rea sonable eff

orts to assist Mother. Howeve r, DCS’s decision to make additional eff orts to assist Mother in r emedy

ing her situation before seeking termination does not nec essar ily require a finding that DCS did not make r ea s o nable eff orts to reunite T.D.M.C. and D.M.A. with Mother. DCS attempted to assist Mother in her development, offe ring pare ntin g s k i l l s t raining
, persona l
manag ement skills training
, an d i n dividual counseling to help her become self-suf ficient. A counselor met with Mother while she was incar cer ated to advise her about the importance of finding

a job upon her rele ase. DCS provid ed s u p er v i s ed visitation service s for Mother while she was incar cer ated and offe red to arr ang e transporta tion upon her rele as e s o t h at she could visit her children. Mother testified that it wa s the foster car e revie w board that rec ommended that she seek housing in the l ow i ncome development i n which she was residing at the t ime of t rial. DCS even offe red to pa

y Mother’s monthly

rent a nd utilit ies if she pa id the initial deposits.

Additionally
, as Mot her acknowle dg es, it was not DCS’s responsibility to provide Mother wit h t h e t ranspor

tation neede d to obtain employ ment. This court has noted the signific ant responsibility

of par ents in the reunif

ication ef fort:

The Depa rtment does not have the sole obliga tion to reme dy the condit i o n s that require d the remova l of children from their pare nts’ custody

. When reunific ation of the family is a g oal, the pare nts sha re responsibility for addre ssing these conditions

as well. Thus, pare nts desiring the return of their children must also make rea sonable and appropr iate eff

orts to r ehabilitate themselves and to r emedy the conditions tha t require d the Depa

rtment to remove the ir children f rom their custody

.

In re Giorgianna H.
, 205 S.W .3d at 519. Mother only manag ed to obtain one job during the near ly two-y ear period that T.D.M.C. and D.M.A. wer e in state custody

. She was fired from that position

-9-fo r failure show up on time or at all, and there is no indication that lack of transporta tion wa s an

obstacle in a t least obtaining another job.

Moreove r, the condition that led to Mother’s transporta tion predic ament was one that rested solely on Mother’s shoulders. Mother knowing ly failed to pay the orig inal ticket she was issued, and

as a result, she claimed that it would cost more than $1000 to have her license reinstated. Howeve r,

even when Mother had a source of income for a two-month per iod in early 2008, she paid nothing toward having her license reinstated, which should have been an obvious priority for someone in her situation.

Noting the interre lated nature of the challeng es fac ing pare nts c onfronted with te rmination petitions, this court has stated that trial courts must consider DCS’s overall eff orts to assist a pare nt in deter mining whether DCS made rea sonable eff orts to reunite the family

. Stat e v. E s t es , 284 S.W .3d 790, 802 (Tenn. Ct. App. 2008). L ike Mother in the prese nt cas e, the mother in Estes alleg ed that DCS did not exercise rea sonable eff orts in helping her find a job. Id. at 801. The mother relied on testimony from a DCS case worke r about DC S ’s ef fo rt s t o help her find a job in light of the mother’s own e ffor ts to do so:

[W ]e explained to her how to help her look for a job. But when she was telling us that she was actua lly looking for something, we told her to call us if she neede d us. Be ca u s e at t hat time, she was looking into being a waitre ss and had sent out applications.

. . . I t’s not that we wer e or we re n ot helping her. Be cause our responsibility

is to allow them to be able to do thing s for themselve s.

Id. Much like Mother in the prese nt case , the mother in Estes neede d DCS’s help to “stay out of jail, find suitable housing, visit her children, find employ ment, and obtain an assessment and counseling to obta in insig ht a

nd skills to overc ome her obstacles.” Id. at 802. The circ umstances in Estes are not unlike Mother’s in the pre sent ca se:

[W ]hen Mother was not in jail, she moved around often and failed to stay in contac t with DCS, which resulted in the case worke r spending v al u ab l e time looking for Mother and try ing to contac t her.

. . . Mother failed to take advanta g e of service s that would have helped her cope with her problems. DCS made effor ts to help M other obtain subs i d i z ed housing

. . . . Finally
, Mother’s repe ated stints in jails wer e a

co n t i n u ing obstacle. The trial court found that DCS provided job counseling t o Mother during t h e int erva ls in which she was not incar cer ated .

. . . Mother clearly knew how to apply for a job and i n fa ct o b t ai ned a job at a motel, befor e losing it beca use of a nother a rre st.

Id. at 802. Given these fac ts, the Estes court conclude d that DCS exercised rea sonable eff orts to reunite the mother with her children. Id. at 802-03. We likewise find that the rec ord in the prese nt

case clea rly and convincing ly supports the trial court’s finding that DCS made rea sonable eff orts to provide Mother

with the support and ser

vices she ne eded to be reunited w ith her childre n.

-10-Mother also claims to have substantially complied with the majority of the responsibilities outlined in the perma

nency plans. Howeve r, she acknow ledg es that she failed to complete pare nting counseling
, pare nting educa tion, and issues dealing with employ ment and inco m e. Mother was employ ed on l y t wo m onths during the near ly two y ear s that T.D.M.C. and D.M.A. wer e in state custody and was unable to suppor t e ven herse lf in a stable home. There is nothing in the rec ord to indicate that substantial compliance with the perma nency plans was a possibili ty at the time of trial.

The evidenc e does not preponde rate ag ainst the trial court’s finding s. The evidenc e clea rly and convinc ingly

establishes the ex istence of two of t he st atutory g rounds found by the t rial court for ter mination of Mother’s pa

renta l rig hts.

Fa ther

The trial court found that Fa ther ab an d o n ed D.M.A. pursuant to Tenn. Code Ann. § 36-1- 113(g )(1)

. The court’s order specific ally ref ers to abandonme nt as define d in Tenn. Code Ann. § 36- 1-102(1) (A)( i):

For a period of four (4) consec utive months immediately prec eding the filing of a proce eding or pleading to terminate t h e pare ntal rig hts of the pare nt(s) or g uardia n(s) of the child who is the subject of the petition for termination of pare ntal rig hts or adoption, that the pare nt(s) or g uardia n(s) either have willfully failed to visit

or have willfully failed to support or have wi l l ful ly failed to make rea sonable
pay ments toward the suppor

t of the child.

For the purposes of this provision, “willfully failed to support” or “willfully failed to make

rea sonable pay

ments toward the support of the child” means the willful failure to provide monetary support or provide more than token pay ments t o wa rd the support of the child for a period of four

consec utive months. Tenn. Code Ann. § 36-1-102( 1)(D)

. “Toke n support” ref ers to support that is insignifica

nt g iven the pare nt’s means under the circ umstances. Tenn. Code Ann. § 36-1-102( 1)(B ).

During the four months prec eding the filing of the petition, Fa t h er paid $580.04 in child support. His total obliga tion during that sevente en-w eek period was $1020. Fa ther disputes the trial court’s finding that this amounted to mere token pay ment. The court noted that Fa t h er was ablebodied and not incar cer ated in the four months befor e the filing of the petition on J uly 28, 2008. I n fac t, Fa ther was employ ed by Fa stenol from April 16 to J uly 15, 2008, during which time his wag es

wer e g arnished to satisfy his child support obliga tion. We disag ree with the trial court’s char acte rization of this amount as mere “token support.” Given Fa ther’s circ umstances, we find that this pay ment was not insignif

icant.

Fa ther also challeng es the trial court’s finding of abandonme nt by willful failure to visit. For the purposes of Tenn. Code Ann. § 36-1-102( 1)(A) (i), “w illfully failed to visit” means the willful failure to visit or eng ag e in more than token visitation fo r a p er i od of four consec utive months. Tenn. Code Ann. § 36-1-102( 1)(E)

. “Toke n visit at i o n ” i s define d as “per functory visitation or

-11-visitati o n o f s uch an infreque nt nature or of such short duration as to mere ly establish minimal or

insubstantial contact with the child.” T enn. Code Ann. § 36- 1-102(1) (C).

Fa ther aver s that his failure to visit D.M.A. was not willful beca use DCS failed to continue visitation throug h another provider when the orig inal provider was chang ed afte r Fa ther’s last visit in Aug ust 2008. Contrary to Fa ther’s asser tions, the rec ord simply does not ref lect that DCS failed
to continue visitation through another provider afte r Aug ust 2008. L ou J err ett, a DCS service provider, testified that she was informed around that time that the visitation provi d er wa s b ei n g chang ed. Howeve r, nothing in the rec ord indicates that service s wer e actua lly discontinued. I n fac t, the rec ord made by the DCS case m an ag er documenting contac t with the family ref lects just the
oppos i t e. The Aug ust 28, 2008 entry states that “[Fathe r] continues to not visit consistently
, canc eling visits for various rea sons.” The S ep t ember 30, 2008 entry is simil ar: “[V]i sitation for [T.D.M.C.] and [D.M.A.] with their pare nts has been provided and not been utiliz ed by the pare nts, [Mot her] or [Father]. The Depa rtment has provided supervised visitation and pare nting education for both par ents.”

More o v er , Fa ther’s visits with D.M.A. wer e sporadic at best even when he was visiti ng

. Sometimes a month or more passed betwee n visit s

. T h e ca se manag er’ s entry for J uly 31, 2008, ref lects this pattern: “[Fathe r] had two visits in J une and one in J uly

. The visits wer e the only ones in the last four months.” Acc ording to Ms. J err ett, it was very difficult to assess Fa ther’s pare nting skills and evalua te whether D.M.A. had any ty pe of bond w ith him because of his irreg ular visits. Finally
, the rele vant time period for the deter mination of abandonme nt was four months befor e the filing of the petition to te rminate, or Marc h 28 throug h J uly 28, 2008, befor e the time when Fa ther claims his visit ation was ter minated i n Aug ust 2008. The e vidence does not preponde rate ag ainst the trial cour

t’s finding of aba

ndonment with respec t to Father ’s willful failure to visit

.

The trial court also found that Fa ther failed to substantially comply with the perma nency plans implemented for D.M.A. pursuant to Tenn. Code Ann. § 36-1-113(g )(2)

. Fa ther signe d a perma nency plan on April 12, 2007, that require d him to submit to a pater nity test; consistently visit D.M.A.; inform DCS of his wher eabouts; attend all meeting s and court hear ings reg arding D.M.A.; abide by all court order s; underg o a pare nting assessment and follow all rec ommendations; complete
pare nting educa

tion; provide financ ial support for D.M.A.; and submit to a home study

. Fa ther failed to substantially comply with t h i s p l an

. On J une 7, 2007, he was arr ested for ag g rava ted robber y and ag g rava ted assault. Fa ther was sentenc ed to eig ht y ear s of community corr ections. He tested positive for marijuana on four occa sions and failed to meet the require ments of his community

corr ections sentenc e. He paid nothing in c hild support to D.M.A. during this time.

The April 17, 2008 p er m an ency plan require d Fa ther to cooper ate with DCS reg arding

v i sitation; consistently visit and build a rela tionship with D.M.A.; complete pare nting educati o n ; abide b y al l court order s; inform DCS of his wher eabouts; attend all meeting s reg arding D.M.A.;
p ro v i d e fi n ancial support for D.M.A.; and submit to a home study

. Fa ther failed to substantially comply with the terms of the perma nency plan. Fa ther p ai d a total of $580.04 in child support, signific antly less than the amount he was order ed to pay by the court. His visits with D.M.A. wer e

-12-sporadic, making it difficult to asce rtain whether the two had develope d a rela tionship. Fa ther lacke d

a stable home, living alterna tely with family
, friends, and finally his fianc ee. Fa ther and his fianc ee failed a DCS home study and exposed minors to dr ug s and alcohol on two differ ent occa sions. At the time of trial, Fa ther was incar cer ated awa iting trial on a fe lony burg lary char g e. His proba tion office r testified that she filed a violation of probation revoking his community corr ections sentenc e, ensuring that he will serve some time in jail.

As a c halleng e to the trial court’s findi ng that Fa ther did not substantially comply with the
perma nency plan, Fa ther asser

ts that DCS failed in its duty to make rea sonable eff orts to reunite the family pursuant to Tenn. Code Ann. § 37-1-166( a)( 2). Fa ther insists that DCS failed to provide him
any assistance in obtaining his own residenc e, procur ing employ ment, or resolving his leg al issues. Fa ther a sserts that DCS instead focuse d exclusively on visitation and parenting education.

Fa ther a cknowledg es that it was not DCS’s responsibility to g ive hi m a job but insists that he should have been g iven job training

. Howeve r, during the approximately eig hteen- month period of time that DCS worked with Fa ther, he often informed DCS that he was employ ed. He claimed
to have held jobs with a construction company , a car pet g allery
, and Fa stenol, the only employ er that

was actua lly confirme d. Fa ther was cl ea rl y not seeking job training from DCS if he was actively

conce aling the fac t that he was unemploy ed. As with Mother, it was not DCS’s sole responsibility
to r emedy the conditions that led to D.M.A.’s re moval from F ather

. “[P] are nts de siring the return of their children m ust also make reasona ble and appropr iate efforts to reha bilitate themselves and
to reme dy the conditions that require d the Depa rtment to remove their children from their custody .” In re Giorgianna H. , 205 S.W .3d at 519.

Fa ther also never soug ht help in obtaining housing. When he moved from his sister’s home
to the home of a friend, he failed to g ive DCS his new contac t information. When he finally beg an living at his fianc ee’ s house, they failed a home study

. Simi larly
, it is difficult to imag ine what kind of help DCS could have offe red Fa ther to resolve his leg al issues when he was arr ested for
ag g rava ted robber y and ag g rava ted assault and then violated the terms of his community corr ections
sentenc e by

using dr ug s and being arr ested for burg lary

.

Fur thermore
, Fa ther failed to com p le te e v e n th e elements of the perma nency plan upon which he claims DCS focuse d its eff orts exclusively

—visitation and pare nting education. Fa ther failed to complete pare nting educa tion, and his visits with D.M.A. wer e sporadic and infreque nt. There is no indication that a lac k of ef fort fr om DCS was the rea son that Fa ther fa iled to substantially comply with the terms of the pe rmane ncy plans.

The evidenc e does not preponde rate ag ainst the trial court’s finding s. The evidenc e clea rly and convinc ingly

establishes the ex istence of two of t he st atutory g rounds found by the t rial court for ter mination of Fa ther’s pa

renta l rig hts.

-13-The judgme nt of the trial court is aff irmed. Costs of appea l are assessed equally ag ainst the appellants, for

which execution may

issue if nec essar

y

.

___________________________________ ANDY D . BEN

NETT, JUDGE

-14-