1 M other ’s pare ntal rights to L.B .T. ar e not a t issue on this app eal. 

### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE Assigned on

Briefs A pril 7, 200 3 TENNESSEE DEP

ARTMENT OF C HILDREN’S SERV ICES v. R.G.T. Appeal from the Juvenile Court for Greene County No. 16056 Thomas J. Wright, Judge FILED MAY 30, 2003 No. E2002-02804-COA-R3-JV

The trial court terminated the parental rights of R.G.T. (“Fathe r”) to his minor child, L.B.T. (DOB: September

20, 2000). Father appeals, arg uing that the evidence preponderates ag ainst the trial court’s d ual findings, i.e. , (1) that grounds exist for terminating his parental rig hts and (2 ) tha t terminat ion is in the

best inter est of L .B.T. We a

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

Affirmed; Case Remanded C HARLES D. S USANO , J R ., J., delivered the opinion of the court, in whichH OUSTON M. G ODDARD , P.J., and D. M ICHAEL S WINEY , J., joined. J. Russell Pryor, Greeneville, Tennessee, for the appellant, R.G.T. Paul G. Summers, Attorney Gene ral and Repo rter, and D ouglas Earl Dimond, Assistant Attorney Genera l, for the appelle e, Tenne ssee De

partmen t of Childr

en’s Ser vices. OPINION I. On September 21, 2000, the Tennessee Department of Children’s Services (“DCS”) filed a petition for temporar y custody of one-d ay -old L .B.T. Th e petition allege s that L .B.T. wa s a dependent

and neglected child “in that the parents . . . by reason of mental inc apacity

are unf it to properl y care for such child.” The petition goes onto state that the court had previously terminated the parental rights of Father and N .J.T. (“Mother”) 1 with resp ect to their other children, the si blin gs2 On Decembe r 8, 1999, t he court had f ound, by cl ear an d convi ncin g evi dence, tha t gr ounds e xis ted f or terminati ng the pa rental righ ts of Fath er and M other to the ir ot her f our ch il dren, rang ing in a ge f rom six to t

hirteen, and that terminati on of parental right s was in t he best interes t of the chi ldren. The grounds for terminati on included the persis tence of th e conditi ons that led to t he rem o val, the m ental inc omp etenc e of the p arents, a nd the failure to substanti ally comply wit h the foster

care plan. -2- of L.B.T. (“the

child”) 2 When the child came into the custody

of DCS, she

was plac ed in the home of the fa mily that had a

dopted he r four sib lings. On December 6, 2000, DCS filed a petition to terminate the parental rig hts of Father and Mother to the chi ld. Four

months late

r, the tri a l c ourt entered an order, finding that the c hild was dependent

and neglected due to the mental incapa city of the par

ents and awarded continued custody of the child to DCS. I n addition, the trial court granted the parents the option of exercising supervisedvisitation with the child, ordered theparents to undergo a new psy chological evaluation, and adop ted the pe

rmanency pl an filed

by D CS. Visitation with the child

did not go

well. A qu arterly

progress report submitted by the child’s DC S c as e m an ag er on Ju ne 29 , 2 00 1, ad dr es se s t he pa re nt s’ vi si ta ti on th us ly:

The foster mother . . . h as to rema in in the roomat all time s becaus e [the child] will n ot tolera te being alone wit h her paren ts. She cries and scream s continuously if her fo st er mo m l ea ve s h er , e ve n b ri ef ly. Two and a half months later, the parents filed an answer to the petition to terminate, alleg ing that DCS “comes to Court with unclean hands” because of its refus al to allow

the pare nts to visit w ith th e child. On the same day the parents filed their answers, the trial court enter ed an order terminating visitation. The order states that the matter had been pending before the trial court since D ecember

6, 2000; that the case had been reset three times due to de fense counsel’s di ffic ul ty i n obtaining an independent psyc hological evaluation; that the only issue that rema ined to be litigated was the mental and psycholog ical health of the parents; and that the termination he aring w ould proceed as scheduled on October 3, 2001. On October

1, 2001, c ounsel fo

r the par ents deposed psycholog

ist Nancy L . Lanthorn, Ph.D., who had performed the psy chological evaluation of the parents. Dr. Lant horn test ified tha t she coul d say within “a 95% degree of conf idence [Father] has an IQ

of between 64 and 72.” She further stated that th is IQ placed Fathe r in the “extremely low to border line range of intellectual functioning,” w hich was previously cla ssified in psychologic al terms as mild mental retardation. While D r . Lanthorn agreed with DCS that Father was menta lly incompetent to parent the c hild, she opined that Mother was competent to parent the child and that Father and Mother “work nicely as a team.” Appare ntly bas ed upo n the results of the psycholog ical evaluation, DCS dismissed the petition to terminate on October 2, 2001. At the end of the month, the trial court entered an order which allowed the pare

nts to have

supervis ed visitat

ion with the

child. The

order a lso stated th a t DCS could videotape the visitation, starting with the parents’ third visitation session.-3-

On December 19, 2001, DCS filed a new petition, this time seeking to terminate visitation. DCS alleged

that the videotape s of the vi sitation se ssions “de monstrate the pare nts’ inab ility

to calm the child during the visitation period.” The December 27, 2001, qua rterly prog

ress report recites the follo wing: The child screams during the entire visitation

with her p arents u

nless she cries herself to sleep. * * * The parentsdo not hav e a rela tionship of

any kind with th

is c hil d. She screams and cries whenever she sees them. She is no rm al ly a very well adjusted child. H owever, when the child sees her natura l parents she has an adverse rea ction. In January, 2002, Father and Mother se

parate d. Five mo nths later , DCS filed a petition

to terminat e Father ’s pare ntal r ights , alle ging, inter alia , that he had willfully abandoned the child by failing to pay child support, that the conditions which led to the child’s r emoval persisted, and that he was mentally incompetent to par ent the child. After a full hearing, the trial c our t termina ted Father’s parental rights. I n the final judgment, entered November 14, 2002, the court below found, by clear and convincing evidence, that grounds for terminating Father ’s parental rights existed and that termination was in the best interest of the child. II. In this non-ju

ry case, ou r review is de novo upon the record of the proceeding s below; but the record comes to us with a presumption of correctness as to the trial court’s factual determinations

–one that w e must hono r unless th

e eviden ce prep onderat

es oth erwise . Tenn. R. App. P. 13(d); Wright v . City of

Knoxville , 898 S.W.2d 1 77, 181 (Tenn. 1995 ); Union Carbide Corp. v. Huddleston , 854 S.W.2d 87 , 91 (Ten n. 1993). The tria

l court’ s c onclusions of law, however, are accorded no such presumption. Campbell v. Florida Steel Corp. , 919 S.W.2d 26, 35 (Tenn. 1996); Presley v. Bennett , 860 S.W.2d 857, 859 (Tenn. 1993). III. It is w ell-sett

led that “ parentshave a f

undament al righ t to the care, custody , and control of their children.” In re Drinnon , 776 S.W.2d 96, 97 (Tenn . Ct. App. 1 988) ( citi ng Stanley v. Illinois , 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)). However, this right is not absolute and may be ter minated if

there is c lear and convinc ing evid ence jus tify

ing ter mination under the p erti nen t statutory scheme. Santosky v. Kramer , 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Clear and convincing e

vidence is e vide nce which “eliminates any serious or substantial doubt concerning the correctness of the conclusions to be drawn fr om the evidence.” O’Daniel v. Messier , 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995).-4-

The issu es rai sed in the pl eadin gs , the evi dence presented at trial, and the trial court’ s finding s, bring into play se veral statut ory prov isions. Particularly pertinent ar e the provisions dealing with a parent’s “mental c ondition.”All of the terminat ion statute s implicat

ed by the fac ts of this ca se are a s follows: Tenn. Code Ann. § 37-1-147 (2001)

(a) The juve

nile cour t shall be a

uthorized to termina

te the rights of a parent or guardian to a child upon the grounds a nd pursuant to the procedures set forth in title 36, chapter 1, part 1. * * * Tenn. Code Ann. § 36-1-113 (2001) (a) The cha

ncery and circ uit courts shall have concurrent jurisdiction withthe juven

ile court to te

rminate p arenta

l or gua rdianshi p rights to a ch ild in a separate proceeding, or a s a part of the ad optio n proceeding by utilizing any grounds for termination of par enta l or guard ianshiprights p ermitted

in this part or in

title37, chapter 1, part 1 and title 37, chapter 2, part 4. * * * (c) Termination of parental or guardianship rig hts must be based upon: ( 1) A finding by the

court by clea

r and convincing evidence that grounds for termination of parental or guard ianshiprights have been established; and (2) That termination of the parent’ s or gua rdian’srights is in the be st interests of the child. * * * (g) Initiation of

terminat ion of par ental or guard ianship r ights may be based up on any

of the fo llowing g

rounds: (1) Abandonment by the pa rent or guardian, as defined in [Tenn. Code Ann.] § 36-1-102, has occurred; * * *-5- (3)( A) The chi ld has been removed from the home of the pare nt or guardian by

order of a court for a period of six (6) months and: (i) The conditions which l e d to the child’s removal or other conditions which in all

reasonab le probabi lity would c ause the c hild to be subjected to further abuse or neglect and which, therefore, prevent the chil d’s safe return to the care of the parent(s) or guardian( s), still persist; (ii) There is lit

tle likel ihood that t

hese conditions will be remedied at an early dat

e so that the child can be safely returned to the parent(s) or guardian(s) in the near future; and (iii)The continuation of the paren t or gu ardian and child rela tionship greatly diminishes the child’s chances of early integration into a safe, stable and permanent home. * * * (8)(A) The chancery

and circuit courts shall have jurisdi ction in an adoption proceedi ng, an d the cha ncery , circuit, and juve

nile cour ts shallhave jur

isdiction in a separ

ate , independent proceeding conducted

prior to an adoption proceedingto deter mine if the parent or guard ian is ment

ally incompet

ent to p rovide for the further care and supervision of the child, and to terminate that pare nt ’s or guardian’s rights to the child. (B) The court may

terminate the parental or g uardianship rights of that person if it determines on the basis of clear and convincing evidenc e that: (i) The parent or guardian of the chi ld is incom petent to adequate ly provide for the further care and supervision of the child because the parent’s or guardian’s mental condition is presently so impaired and is so likely

to remain

so that it is unlikely that

the parent or guardian will be able to assume or resume the care of and responsibility for the child in the near future, and (ii) That ter

mination of

parenta l or gua rdian rig hts is in the

best interest of the child. * * *-6- Tenn. Code Ann. § 36-1-102 (Supp. 2002) As used in

this part, unless the

context otherwise r

equires : (1 )(A) “Abandonment” means, for purposes of terminating th e parental or guardian rights of pare nt(s) or guardia n(s) of a

child to that child in order to make th at child a

vailable for adoption, that: (i) For a p eriod of four (4) consecutive months immediately preceding the filing o f a proc eeding

or plead ing to te rminate t he pare ntal rig hts of the parent(s) or guardian(s) of the child who is the subject of the pe tition for termination of parental rights or adoption, tha t th e par ent(s) or guardian(s) either have willfully failed to visit or ha v e willfully failed to support or make reasonable p ayment s toward the support of the child; (ii) The child has been removed from the home of t h e parent(s) or guard ian(s) as the result of

a petition f

iled in the

juvenile court in which the child was found to be a dependent and neglected child, as definedin § 37-1-102, and the child was placed in the custody of the department

or a licensed child-placing ag ency, that the juvenile court found , or the court where the termination of parental rig hts petition is filed finds, that the department or a licensed child-placing agency made reasona

ble eff orts to pre

vent r emov al of the child or that the circumstances of the ch ild’s situa tion prev ented re asonable efforts from being made prior

to the child’s removal; and for a period of four (4) mont hs fol lowi ng the r emova l, th e depar tment or age ncy h as made reasona ble effortsto assist

the pare nt(s) or g uardian (s) to establish a suitable home for the child, but

that the p arent( s) or guardian(s) have made no reasonable efforts to provide a suitab le home and have demonstrateda lack of concern f or the child

to such a d

egree that it appears unlikely

that they will be ab le to provide

a suitable home for the child at an early

date; * * * (D) For pur

poses of t his subdivi sion (1), “willfull y failed to support” or “willfull y f ailed to ma

ke reas onable

pay ments toward such child’s support”means that, for a period of four (4) consecutive months, no monetary support was paid or that the amount of support paid is token support;-7-

(Emphasis added). IV. Father raises four issues for our consideration: (1) whether the evidence supports the trial court’s finding

of aband onment fo

r willful f ailure to support; (2) whether theevidence supports the trial c ourt’s findi ng that DCS made reasonable efforts to pre vent the removal of the child; (3) whether the evidence supports the trial court’s finding of grounds for termination based upon Tenn. Code Ann. § 36- 1-113(g )(3)(A )(i)-(iii) and ( g)(8) (B)(i) -(ii) ; and (4) whether the trial court erred when it admitted into evidence the expert testimony of Dr. L anthorn on the q uestion of Father’s me nt al co mp et en cy. A. With respe ct to Fat

her’s a bandonme

nt of the c

hild, the tr

ial cour t found asfollows: [T]he Court finds by

clear a nd convincing ev

idence t hat the child

has been abandoned within the legal definition of that term in that [Father has] willfully failed to support the child and mak e reasona ble pay ments toward the support of the child f or the four consecutive months imme diate ly precedi ng the fi ling of the petition. Indeed, there’s never been any

payments made by

either [Mother or Father] at any time during the life of the child. And in hindsight aga in, I should ha ve order

ed them to

make pay

ments. No d

oubt abou t that. Should have told them exactly how much. But I believe that the leg al precedent is c l ear that it’s not necessary for the Court to have done that in order to establish the wi ll fu l f ai lu re to pa y. If [Father] didn’t know that [he] ne eded to

take care of [his] own child financially, then that only confirms[his] inabilit

y to properl y and safe ly c are for [his] own child. So I make the finding by clear and convincing evidence basedupon the fact that [Father has] never paid anything

and . . . that item has been established as a ground for ter mination. The statutory definition of “willfully failed to support” and “willfully failed to make reasona ble payments toward a

child’s suppo r t,” as defined in Tenn. Code Ann. § 36-1-102(1)(D), was held to be unconstitutional by the Tennessee Supreme Court in the case of In r e Swanson , 2 S.W.3d 180, 188 (Tenn. 1999). Thecourt in Swanson stated that, pending legislative action to cure the statute’s constitutional infirmity , actionsin juvenile court seeking to terminate parental rig hts for abandonment

based up on a fail

ure to sup

port woul d be controlled by the sta tutory definition of abandonment

in effect prior to the enactment of the adoption code, effective January 1, 1996. Under the prior provision, which, under Swanson , now controls the issue, an abandoned child was defined as one “whose parents or other persons lawfully charged with his [or her] care and cus to dy .

. . willfully fail to support or make pay ments toward his [or her] support for a pe riod of four (4)-8-

consecutive months .” T enn . Co de A nn. § 37 -20 2(7 ) (S upp . 19 70) (re pea led eff ect ive Ja nua ry 1, 1996). See Pack v. Ro

gers , 538 S.W.2d 607, 609, 610 (Tenn. Ct. App. 1976). Father argue s that his f

ailure to pay child support could not have been willful, as he had

no knowl edge that he needed to pa y child support. At the time of trial, Father was 44 yea

rs old and had achieved only an eig

hth grade education. I

n addition, Father is unable to read. Father contends that DCS failed to

make him a

ware of his oblig ation to su

pport his c

hild. Fur ther, Fa ther ass erts that

“it was logically inc onsistent for [DCS] to argue and the trial [c]ourt to find that Father is incompe

tent, while at the same time arguing/finding tha t Father could [have] intentionally fa il to pay support.” By Father’s own admission, he has never paid any support for

the child. He also admitted that he has never taken the child any birthday or Christmas car ds, and the only

gift Fa ther could recall giving the child was taken to her by Mother at

the child’s first Christmas. Father asserts that he was under no court order to pay child support. In response to such an asse rtion in a previous case, this Court stated that “the support of one’s children should not be conditioned upon whether one has been placed under a court order to do so.” State Dep’t of Human Servs. v. Manier , C/A No. 01A01- 9703-JV-00116, 1997 WL 675209, at *5 (Tenn. Ct. App. W.S., filed Oc tober 3 1, 1997). With respect to Father’s argument that he wa s unaware of his responsibi lit y to pay child supp ort due to his inability

to read a nd his ment

al defic iency , we ag

ree with the trial court tha t s uch an assert ion tends to supportth e po si ti on o f DC S t hat Fat her is una bl e to pro per ly pa ren t h is chi ld . In any event, the evidence does not prepo nderat e against the trial court’s finding that there was clear and convincing evidence of Fathe r’s abandonment of the child.

B. Father next conte

nds that the trial c ourt err ed in dete

rmining that DCS ma

de reas onable effortsto prevent

the removal of the chi ld , as set for th in Ten n. C ode Ann . § 3 6-1 -10 2(1 )(A )(i i). In rulin g on th e reaso nable effort s of DC S, th e tria l cour t stat ed the follo wing:

[T]here really wa sn’t any eff ort made on behalf of

[Father ] to assist him in doing any

thing. Basically , you were given up on. There’s no doubtab o ut it. Perhaps that’s an interesting legal issue for the Appellat e Courts to discus s, w hether or not in light of the evidence present e d to the caseworker that was reasona ble. I find that it was reasona ble in light of what [the caseworker and DCS were] presented with, which was my fr

esh ruling that [Father ] was incompetent and was not likely to become compete nt, and the subsequent evaluations that [the caseworker] was appr i sed of which continued to indicate that [Father] was not going to be capable of pr operly par

enting the child, and I make that finding

by clear and convincing evidence. With regard to [Mother] and also somew

hat to the extent o f [Fa

ther ], there are significant indications I think from App ellat e Courts that-9- [DCS’s] role or the onus on [DCS] is significa nt ly greater perhaps than has be en o perated under in the past, . . . . But certainly , the parentscontinue to have a responsibility to take act ion t hemselves and the Court finds that [Father and Mothe r] d id not act

reasona bly in failing to take a ction in or der to at tempt tocomplete a Plan of Care and to address the issues that were prevent ing the c hild from residing with either of them. . . . Based upon that factor I think the Court can f ind and does find that those omissions on behalf of [Father and Mother] who the Court finds to have been extremely , extremely well-versed in dealin g with [DCS] as well as other s ocial service s agencies thro ugh the course o f their previous c hildr en’s ter

mination a

nd foster care, I find that t

heir omissions amount

to a demonstrated lack of concern for the c hild to the degree

that it appears unlikely that they ’d be able to provide a suitable home for the child. Tenn. Code Ann. § 36-1-10 2(1)(A) (ii) cont emplatesthat DCS will make re asonable efforts to prevent the child in question from being removed from the home of t he p arents, unless

“the circumstances of the child ’s sit uatio n prev ent[ ] reas onabl e effor ts fro m bein g m ade pr ior to the child’s removal.” In the instant case , the parental rights of Father a nd Mother had been terminated withrespect to their other four children less than one y ear prior to the birth of the child in question. DCS’s prior, fresh history with respect to these parents certainly

must be factored in when evaluating the sufficiency

of DCS’s efforts prior to removing the child. We agree

with the trial court that the actions of DCS were reasonable in light of the pare nts’ history with DCS and the previous termination proceedings. According ly, we find that the evidence does not preponderate ag ainst the trial court’s findings with respect to reasonable e fforts by DCS. C. In addressing the issue of

failure to remedy the c onditions preventing the return of the child, the cour t found asfollows: The conditions which still persist are those generally that were talked about in the Pla

n of Care and discussed in the argument of the guardian ad litem th at [Fathe

r and Moth

er] are s till inno position to b e able to a dequate

ly p rovide f or a chil d. I th

ink [the guardian ] is exactly right about that. Those were not the conditions which caused the chil d to be removed necessarily . What caused the child to be removedis that it was just a few short months prior to the birth of the child this Cou rt ha d found tha t [Father and Mothe

r] were incapab le of properl y pa renting a child a nd therefore or

dered th at this chi ld also be re mo ve d f

ro m t he ir cu st od y.-10- I don’t find there to have been an y signific ant change in the ir parenting abilit ies or in their mental or emotional abilities since I previous ly

found them to be incompetent. So from that standpoint that condition which led to the removal of thechild I find by clear and convincing evidence does persist and that there are other conditions including their inst

ability of their l

ivin g ar range ments and

their inability to provide an income to support a child as well as the lack of parenting ability as demonstr ated on th e videota pe in particular, and throu gh the other

testim on y as we ll th at wo ul d, in al l p ro ba bi li ty, cause the child to be subjected to negle ct i n the futu re and ma

ke it un sa fe to re tu rn th e c hi ld to ei th er on e o f t he m’ s c us to dy. The Court find s by

clear a nd convincing ev

idence t hat ther e is little likelihood that th ese cond itions could be rem

edied at an earl y da te and that t h e continu ation of th

e lega l parent and child

relation ship great ly diminishes the child’s cha nces of early integration into a stable and permanent home. The evidence does not preponderate ag ainst these factual findings by the tria l court. On the co nt ra ry, there is a

mple evid

ence to s upport the trial court’s findings that, due to Father’s menta l in co mp et en cy, he will be

unable to remedy his lack o f paren

ting skill s in the near future, and that the continuation of

Father’s legal relationship with the child will greatly diminish the child’s chances of an ea rly integr ation into a

stable ho me envir

onment. D. With respec t to t he com peten cy of Father , the c ourt s tated the fo llow ing: Wi th regard to [Father], the Court finds that the allega tion o f incompetency

to provide for the child and to adequately parent the child has been established by

clear and convincing evidence and that it is unlikely

that he wo

uld be abl e to addr

ess the imp air

ment fro m which he suffers so as to be able to a ssume the

care a nd respon sibility of the chil d in the near future. The near future has now already passedand essentially, as [the g uardian ad litem] said, there’s not anything that’s happened. There’s really no t anything tha

t’s new other than that they have

split up and that [Mother] has adopted what is now ref

erred t o as an al

te rna tive lifestyle appar

ently. But the evidence that is before the Court indicates that [Father] would re

main subject to that incompetency f inding as I found in the pre vious hearing some y

ears ag o, and specifically without referen ce to the deposition of Dr. Lanthorn[], the Court finds that the ground will be established by not

only the Court’s previous finding, but the-11- testimonyof the lay witnesses he re today as well as the fact t hrough [Father ’s] testimony that

he now receives disability benefit s at least in part because of

his ment al disability. The Court notes for the record that he a

pparent ly r eceive d an awa

rd which sa id he was disabled back to 19 97 at w h ich time he was currently working on a dairy farm, and did again in 2001 indicating that the back injury was notthe significant

portion of

the disab ility . At least , that’s w hat I find by clear and convincing evidence. Father argues that the

trial court’s finding of

incompetency “ was based upon certain ‘expert te st im on y’ which was introduced at trial in the f orm of a d eposi tion and other writings.” Father further contends that

the testim

ony of Dr. L anthorn w as inadmis sible hea rsay , that the

testimony

did notmeet the r

equirem ents of Te

nn. R. Evid

. 702 & 703 or the requirements of McDaniel v . CSX Transp., Inc. , 955 S.W.2d 257 (Tenn. 1997), and that none of the opinions expressed by Dr. Lanthorn were state d within a “reasonable degree of scientific certainty .” We find Father’s assertion puzzling, in view of the trial court’s statement that it was finding Father incompet ent “specifically without reference to the deposition of Dr. Lanth orn .” (Empha sis added). Instead, the court based its decision on its previous adjudication of incompetency and the fact that it cou

ld see no improveme

nt in Fath

er’s men tal c ondit ion; the testimony of other lay witnesse s; and the fact that Father has been a warded disability, at leas t in part, for his mental condition. Since Dr. Lanthorn’s testimony was not relied upon by the trial court, the error, if

an y, in receiving her testimony into evidence was harmless.

V. F in al ly, we conclude that the evidence contained in the rec ord supports the trial court’s finding that the termination of Father’s parental rig hts is in the best interest of the child. The trial court sum marized th

e facto rs perta ining to t he child’ s best inte

rest: I have to a

ddress the best inte

rest, whe ther it’sin the chi ld’s best interest to terminate parental rights. The short answe r to that is that the Court do e s believe it to be in the child’s best interest and that that’s been established by clear and convincing evidence . . . . The child has clearly

bonded with the foster family and is in a po sition where it has lived wit h and formed a bond with its four biological siblings

. The child is doing well. When the Court was forcing the visitation the child wasn’t doing nearly as well and just had an aw fu ll y, awfully bad

response to [Father and Mother] as evidenced by the videotape. Sp ec if ic al ly, the Statute requires that I address sever al factors which are set forth in [Tenn. C ode Ann. §] 36-1-113(i) and are numbered-12- thereafter 1 through 9. With regard to item number 1, the Court

finds that neither parent has made any signifi cant ad

justment of circumstanceor condit

ions so as t

o make it sa

fe for th e child and in the child’s best interest to return to their home. Number 2, the Court

finds by clear a nd convincing ev

idence t hat both the parents havefailed to make a lasting adjustment after r easonab le effortsby available soc ial serv ices a gencies; so that a lasting adjustmentdoes not reasonably appear possible. To a

certain extent I’m basing that on the prior

history of the other several years with the other kid s. Number 3 is a non-issue for the Court in this case because it involves whether the y’ve maintained r egular visitation. Of course, I terminatedtheir visitation. Pr ior to that

time they

did maintain regular visitation the Court finds by clear and convincing evidence

. Number 4, the Court finds that no meaningful relationship was ever established between the biological parents and the child. Number 5, the Co urt fi nds t hat it is li kely that a change of caretakers and physical enviro nment for this child w ould have

a signif icantly adverse affect on the child’s emotional/psy chological condition. Number 6, the Court does notfind to have been a factor with reg ard to the chi ld’s best interest. Number 7, the Court finds that there’s not a great deal of evide nce one way or the other with r

egard to [Mo ther ], but that [Father] has demonstratedby clear

and convincing evidence that he has a healthy and safe phy sical en

vironmen t curre ntly in his mother’s home. There hasn’t b e en any e

vidence about the use of alcohol or controlled substances by e ither of

these parents. The Court finds that item number 7 does not preponderate in favor of termination or in favor of the child’s best interest that its right be terminated. Number 8, the Court does find that item number 8 has been established by clear

and convincing evidence

that the parents’ mental and/or emotiona l status wouldbe detrimental to t he child and prevent the parent from effectively prov idin g a safe and stable car e and supervision for the child, and that the Court find s with

regar d to both [Father and Mother].-13- And nu mb er 9, ob vi ou sl y as I’v e a lr ea dy found, ne ither pa rent pai d any child supp ort. Having considered those factors set out in the Statute as wel l as the overall factor that the Court’s alrea dy mentioned reg arding the current placement

of the child and the child’s forming a part of that fa mi ly, the Court does find that i

t’s in the c hild’s be st intere st to termin atethe parental righ

ts of [ Fath

er and Mother] to

the c hild, [L

. B.T.] and therefore, the Court does so. The evidence does not

preponderate against these finding s. Rather, the evidence believed by the trial court – mu ch of whi ch is allud ed to in this opinion – shows in a clear and convincing manner that terminat ion is in the

child’s b est inter

est. VI. R.G.T. has filed a motion requesting that any costs that might be t axed to him be waived. We find the motion to be well-taken, and, accordingly , it is hereby g ranted. VII. The judgment of the trial court is affirmed. This case is re manded for enforcement

of the trial court’s judgment and for c oll ection of costs assessed below, all pursuant to applicable law. Exercising our dis cre tion, we tax the costs on appeal to the Tennessee Department of Children’s Service s.

_______________________________ CHARLES D. SUSANO, JR., JUDGE