IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs November 18, 2010

IN RE ELIJAH B., ET AL.

Appeal from the Juvenile Court for Greene County

No. J21376 Kenneth N. Bailey, Jr., Judge

No. E2010-00387-COA-R3-PT - FILED DECEMBER 29, 2010

Eric B. (“Father”) appeals the termination of his parental rights with respect to his two minor

children. The Department of Children’s Services (“DCS”) petitioned to terminate Father’s

rights based upon allegations of abandonment,substantial noncompliance with a permanency

plan, and persistence of conditions. Following a hearing, which Father failed to attend, the

trial court granted the petition upon finding, by clear and convincing evidence, that all of the

alleged grounds were established and that termination was in the best interest of the children.

On appeal, Father asserts that his due process rights were violated. He also challenges the

weight of the evidence supporting the court’s decision to terminate his parental rights. We

reject both challenges. Accordingly, we affirm.

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

Affirmed; Case Remanded

CHARLES D. SUSANO JR., J., delivered the opinion of the Court, in which D. MICHAEL

SWINEY and JOHN W. MCCLARTY, JJ., joined.

Sandy Phillips, Johnson City, Tennessee, for the appellant, Eric B.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;

Joshua Davis Baker, Assistant Attorney General; Nashville, Tennessee, for the appellee,

Tennessee Department of Children’s Services.

OPINION
I.

Two children were born to Father and his wife, Crystal B. (“Mother”) – a son, Elijah,

1

on May 22, 2000, and a daughter, Abigail, on January 7, 2006. In May 2006, DCS filed a

petition seeking an adjudication that the children were dependent and neglected. The petition

stemmed from an incident in which Father and Mother were arrested when they, with both

of the children present, were observed stealing some $738 in electronic goods from a

WalMart store and secreting them in a diaper bag. During a search incident to both parents’

arrest, officers discovered in Mother’s purse two spoons and two syringes containing residue

that appeared to be cocaine. Father claimed that these items belonged to him. Father pleaded

guilty to charges of theft over $500 and possession of drug paraphernalia and was sentenced

to 11 months and 29 days in jail with all but four days suspended. Father was already on

probation at the time of the offenses. In the ensuing DCS investigation, Father admitted to

being a drug addict in need of help. He admitted he had used crack cocaine and morphine

in the children’s presence the night before his arrest. Although Father claimed Mother no

longer used drugs, the investigator observed needle tracks on both of their arms.

In further support of the petition, the DCS case manager noted that DCS had received

a referral the previous month from officials at Elijah’s school regarding possible medical

neglect – the child was hearing impaired and was supposed to be wearing a hearing aid in one

ear but had repeatedly come to school without it. More recently, the child had stopped

attending school. The petition further alleged that the children were in need of immediate

protection because the family had no stable housing – they had recently resided at the

Andrew Johnson motel. The parents said they were in the process of getting a trailer when

both were jailed. At that time, Child Protective Services “completed a safety plan and placed

the children temporarily with [a grandmother]. However, after a DCS records check, the

children were moved to a DCS foster home.”

The children were brought into the protective custody of DCS on May 23, 2006. At

a status hearing the following month, the court found, by clear and convincing evidence, that

the children were dependent and neglected; the parents remained in jail and stipulated to the

allegations. The court noted that DCS had created a permanency plan for the children and

was using reasonable efforts to meet the stated dual goals of reuniting the family or having

the children exit custody to live with a relative. Father was ordered to submit to random drug

screens; if he passed them, he would be allowed to have supervised visits with the children.

In addition, Father was to undergo an alcohol and drug assessment and his attendance in an

in-patient drug treatment program was recommended. To this end, DCS arranged for Father

Mother voluntarily surrendered her parental rights prior to the hearing below. She is not a party on 1

this appeal and we mention her only as is necessary to flesh out the underlying facts. 

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to complete an alcohol and drug assessment. The plan also charged Father with the task of

completing a mental health assessment and following all recommendations; maintaining

sobriety while the children were in state custody; securing employment and adequate

housing; and abiding by all laws and the conditions of his probation. Father acknowledged

his participation in the plan’s development, reviewed its terms, and agreed to them. In

addition, Father signed a statement acknowledging that he had received a copy of the

“Criteria & Procedures for Termination of Parental Rights” and that its contents had been

explained to him.

One year into the children’s foster care placement, DCS family services case manager

Kimberly Shirley completed an “Affidavit of Reasonable Efforts” in which she concluded,

“[a]t this juncture, it is unlikely the children could ever be reunified with their parents” and

noted that DCS was pursuing the termination of their rights. She noted that services were

at first provided to both parents, but that they were “noncompliant and did not keep [DCS]

notified of their whereabouts.” Because of the parents’ noncompliance and failure to notify,

DCS services were terminated. By January 2008, Ms. Shirley reported that the children

remained in a foster home “where all their needs are being met” and that DCS had had no

contact with Father.

At an October 2008 hearing, the trial court found that it would be detrimental to the

children and not in their best interest to be removed from their current foster home and

placed in the custody of their paternal grandmother who had sought custody of them. At the

same hearing, Father was ordered to submit to a hair follicle drug test. He was advised that

if he passed two drug screens, a “no-contact” order then preventing his visitation with the

children would be lifted. DCS records showed that Father submitted to the drug test and

passed it on December 11, 2008.

On January 27, 2009, DCS petitioned to terminate Father’s parental rights. The

petition alleged four grounds for termination: abandonment by failure to visit, abandonment

by failure to provide child support,substantial noncompliance with the permanency plan, and

the persistence of conditions that caused the children to be removed, with little likelihood of

those conditions being remedied in the foreseeable future.

Father had supervised visits with the children on December 31, 2008, and February

6, 28, 2009. During that time, Elijah attended 2nd grade; he had exhibited some behavior

problems affecting his grades. He was diagnosed with mild mental retardation for which he

was receiving special education services. In addition, he received speech therapy three times

a week for his partial deafness.

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A bench trial was held on December 8, 2009. At the time of the hearing, the children

were nine and three and had been in state custody for nearly three years. At the start of the

trial, the court noted Father’s absence. Father’s counsel, Ms. Luther, advised the court that

she had notified Father of the hearing date but had no contact with him in the past two

months. In itstermination order, the court expressly found that “[Father] was properly served

and this matter is properly before this Court.” Ms. Luther was permitted to withdraw and the

hearing proceeded. Ms. Shirley, the only witness, essentially recited the procedural and

factual history of the children’s case and answered additional questions from the court. At

the conclusion of the trial, the court terminated Father’s rights.

Father filed a timely notice of appeal. He asserts that neither the law nor the evidence

supports the trial court’s decision; he moves us to restore his parental rights.

II.

Father raises the following issues for our review:

1. Were Father’s due process rights violated by not being

provided appropriate notice of the hearing for the termination of

parental rights?

2. Were Father’s due process rights violated when he was not

provided counsel at the hearing for the termination of parental

rights?

3. Was the judgment contrary to the weight of the evidence?

III.

Our review of this non-jury case is de novo. The trial court’s findings of fact,

however, come to us with a presumption of correctness that we must honor unless the

evidence preponderates against those findings. Tenn. R. App. P. 13(d). In weighing the

preponderance of the evidence, great weight is accorded the trial court’s decisions regarding

witness credibility; such determinations will not be reversed absent clear and convincing

evidence to the contrary. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). No

presumption of correctness attaches to the trial court’s conclusions of law. Langschmidt v.

Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002); Jahn v. Jahn, 932 S.W.2d 939, 941

(Tenn. Ct. App. 1996).

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A parent has a fundamental right to the care, custody, and control of the parent’s

children. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re

Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988). While parental rights are superior to the

claims of other individuals and the government, they are not absolute, and can be terminated

upon appropriate statutory grounds. See Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn.

2002). A parent’s rights may be terminated only upon a finding by the court (1) “that the

grounds for termination of parental or guardianship rights have been established; and (2)

[t]hat termination of the parent’s or guardian’s rights is in the best interests of the child.”

Tenn. Code Ann. § 36-1-113(c)(Supp. 2007); In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn.

2006). Both of these elements must be established by clear and convincing evidence. See

Tenn. Code Ann. § 36-1-113(c)(1); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

Evidence satisfying the clear and convincing evidence standard establishes that the truth of

the facts asserted is highly probable, State v. Demarr, No. M2002-02603-COA-R3-JV, 2003

WL 21946726, at *9 (Tenn. Ct. App. M.S., filed August 13, 2003), and eliminates any

serious or substantial doubt about the correctness of the conclusions drawn from the

evidence. In re Valentine, 79 S.W.3d at 546; In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct.

App. 2004).

On our review, we proceed mindful of our duty “to determine whether the trial court’s

findings, made under this clear and convincing standard, are supported by a preponderance

of the evidence.” In re F.R.R., III, 193 S.W.3d at 530.

IV.

In his first two issues, Father alleges that the termination hearing was held in violation

of his due process rights. More specifically, he contends that he was not properly notified

of the hearing date and was denied his right to counsel. We address these issues together.

As relevant to both issues, Father was deemed indigent and Ms. Luther was appointed

as his counsel in April 2009. See Tenn. S. Ct. R. 13, Sec. 1 (2)(b) (providing that counsel

shall, upon request, be appointed to an indigent party in an action which may result in

termination of the party’s parental rights). The order of appointment expressly provides that

counsel would represent Father to the conclusion of trial and on any subsequent appeals in

this case. On August 18, 2009, the original hearing date, Father was present when the hearing

was rescheduled to October 13 on motion of the children’s guardian ad litem. On October

13, the parties appeared at court. Before the case was called, counsel met in the hall outside

the courtroom and agreed to reschedule the hearing to December 8, 2009.

At the start of the hearing on December 8, the trial court questioned Father’s counsel

regarding Father’s absence:

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The Court: Ms. Luther, your client?

Counsel: I don’t know where he is, Your Honor. I haven’t, in

all candor, spoken with him since October. I haven’t been able

to reach him and I would like to withdraw from the case.

The Court: Okay. I will permit your withdrawal. Hum . . . I’m

shocked that he’s not here because he’s . . .

Counsel: Yeah, he’s always been to court hearings before, but

I haven’t been able to get a hold of him in almost a month and

a half.

The Court: Okay. And he was present the previous Court

hearing when this was set for today, I believe?

Counsel: I believe we reset without coming actually into the

Courtroom, but I did notify him that day.

* * *

The Court: [A]nd the case was set at 8:30. The clock on the

wall now says it is 8:58, so . . . [Bailiff], if you’ll just call

[Father’s] name out in the hall to . . . confirm he’s not present.

Counsel: Your Honor, I know in the past he’s expressed

concerns about having to take off from work. I don’t know if

that was an issue today.

The Court: [Father] has not answered.

In its termination order, the trial court addressed Father’sfailure to attend the hearing:

The Court also wants to state that this morning Ms. Luther,

[Father’s] attorney was present, and she stated that he has not

contacted her since October, has failed to assist her in preparing

for this case. The Court did permit Ms. Luther to withdraw

since [Father] did not appear here this morning, and she said she

had notified him of today’s Hearing, and the Court has reviewed

the notes from the . . . August Hearing and the case had been

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reset till October, and in October it had to be reset until today,

and Ms. Luther said that [Father] was present in the hall in

October, and she had advised him the case was reset until today,

December 8, 2009, and he has failed to show.

“Basic due processrequires‘notice reasonably calculated under all the circumstances,

to apprise interested parties of the pendency of the action and afford them an opportunity to

present their objections.’ ” Keisling v. Keisling, 92 S.W.3d 374, 377 (Tenn. 2002)(citing

State v. Pearson, 858 S.W.2d 879, 884 (Tenn. 1993) (quoting Mullane v. Central Hanover

Bank & Trust Co., 339 U.S. 306, 314, 94 L. Ed. 865, 70 S. Ct. 652 (1950)). Further, “[d]ue

process is a flexible concept that ‘calls for such procedural protections as the particular

situation demands.’ ” Id. (quoting Wilson v. Wilson, 984 S.W.2d 898, 902 (Tenn. 1998)).

Father asserts that the failure to “formally” reschedule the October 13 hearing, on the

record and in open court, effectively denied him the chance to defend his fundamental right

to the care and custody of the children. We cannot agree. Whether the agreed continuance

took place outside or inside the courtroom is, in our view, irrelevant to the question of

whether Father in fact was given proper notice of the rescheduled hearing. Ms. Luther

informed the court that she personally notified Father of the new hearing date on the day it

was rescheduled. Father does not dispute his counsel’s assertion that she notified him of the

rescheduled hearing; he simply asserts that the notice he was given was not “appropriate

notice.” Father argues that “[t]here is no evidence that [his] attorney or the court clerk wrote

the court date down for [Father] or took any other steps besides a passing reference in the

hallway to insure [that Father] would know and remember the court date.”

Father has conceded that he appeared for the October 13, 2009, hearing and that his

attorney verbally notified him at that time that the hearing had been rescheduled for

December 8. We conclude that due process principles requiring notice and the opportunity

to be heard were satisfied in this case when Father was personally notified of the new hearing

date.

Next, Father asserts that his due process rights were violated when the trial court

allowed his counsel to withdraw prior to the hearing without Father’s “knowledge or

permission.” He concludes that the absence of counsel materially and adversely affected his

interest because there was no one to present any argument or introduce any evidence on his

behalf.

As we discussed earlier in this opinion, there is no question that Father was entitled

to and provided with appointed counsel in preparation for the termination hearing. In

seeking permission to withdraw at the start of the hearing, Ms. Luther advised the court that

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she had no knowledge of Father’s whereabouts and had not been able to reach him “in almost

a month and a half” since the hearing was continued from its October setting. The issue

becomes whether Father effectively waived his right to counsel by failing to communicate

with Ms. Luther in the months leading up to the hearing and then leaving her to appear

without him. “One who is entitled to be represented by appointed counsel can waive that

right. Failure to cooperate with appointed counsel can constitute a waiver of the right to

appointed counsel.” In re M.E., No. M2003-00859-COA-R3-PT, 2003 WL 1838179, at *12,

(Tenn. Ct. App. M.S., filed August 16, 2004).

This Court was confronted with a situation factually similar to the present case in

Tenn. Dept. of Children’s Svcs. v. Agbigor, No. M2000-03214-COA-R3-JV, 2002 WL

31528509, at *6 (Tenn. Ct. App. Nov. 15, 2002) (perm. app. denied). Therein, Mr. Agbigor,

the defendant in a termination action, decided to take a month-long trip out of the country

and returned only two weeks before his trial date. Upon his return, he failed to contact his

attorney in preparation for the hearing. When the hearing began, Mr. Agbigor’s attorney,

who had represented him in the case for three years, advised the court that Mr. Agbigor had

not contacted him in several months and the attorney had been unable to contact Mr.

Agbigor. Upon arriving at the hearing an hour later, Mr. Agbigor was questioned by the

court regarding his attorney’s motion to withdraw; he did not dispute counsel’s assertions.

As a result, counsel was allowed to withdraw and Mr. Agbigor was advised that he would

have to represent himself. Under these facts, this Court concluded that Mr. Agbigor’s due

process rights were not violated: “His own conduct in refusing to cooperate with the attorney

who had represented him since August 25, 1997, is the sole reason he had no attorney at the

final termination hearing. By his own conduct, he effectively waived his less than absolute

right to appointed counsel.” Id. at *6.

Returning to the present case, Father did not attend the hearing on December 8, 2009

– obviously, then, he did not directly respond to his attorney’s statements to the court that

day, i.e., that she had informed Father of the hearing, but had not heard from him, had been

unable to contact him, and did not know where to find him in preparation for the hearing.

Neither, however, does Father, in his brief, address his failure to contact or communicate

with his counsel or offer any real reason for his absence at the December 8 hearing. Again,

a “defendant in a termination of parental rights case has no absolute right to be represented

by counsel.” Agbigor, 2002 WL 31528509 at *5 (citing Lassiter v. Department of Social

Serv., 452 U.S. 18, 68 L. Ed. 2d 640, 101 S. Ct. 2153 (1981); In re: K.D.D., No.

M2000-01554-COA-R3-JV, 2001 WL 219669 (Tenn. Ct. App. Mar. 7, 2001)). On our

considered review, we conclude that Father, like Mr. Agbigor, did not suffer a due process

violation, but rather effectively waived his right to appointed counsel by failing to assist his

counsel or communicate with her at all in the two months before the hearing. Furthermore,

we find no due process violation in the trial court’s decision to proceed with the hearing in

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the absence of Father. The record clearly reflects that he knew of the hearing date. He has

failed to adequately explain his absence. The trial court did not abuse its discretion in

proceeding without him.

V.

In the present case, the trial court terminated Father’s parental rights pursuant to Tenn.

Code Ann. § 36-1-113 (g)(1),(2), and (3)(2010). These statutory provisions provide as

follows:

(g) Initiation of termination of parental or guardianship rights

may be based upon any of the grounds listed in this subsection

(g). The following grounds are cumulative and non-exclusive,

so that listing conditions, acts or omissions in one ground does

not prevent them from coming within another ground:

(1) Abandonment by the parent or guardian, as defined in §

36-1-102, has occurred;

(2) There has been substantial noncompliance by the parent or

guardian with the statement of responsibilities in a permanency

plan. . . ;

(3) 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;

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As relevant to the present case, Tenn. Code Ann. § 36-1-102 (2010) – as referenced

in subsection (g)(1) above – provides for the termination of parental rights on the ground of

abandonment as follows:

(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:

* * *

(i) For a period of four (4) consecutive months immediately

preceding the filing of a proceeding or pleading to terminate the

parental rights of the parent(s) or guardian(s) of the child who

is the subject of the petition for termination of parental rights or

adoption, that the parent(s) or guardian(s) either have willfully

failed to visit or have willfully failed to support or have willfully

failed to make reasonable payments toward the support of the

child;

* * *

(C) For purposes of this subdivision (1), “token visitation”

means that the visitation, under the circumstances of the

individual case, constitutes nothing more than perfunctory

visitation or visitation of such an infrequent nature or of such

short duration as to merely establish minimal or insubstantial

contact with the child;

(D) For purposes of this subdivision (1), “willfully failed to

support” or “willfully failed to make reasonable payments

toward such child’s support” means the willful failure, for a

period of four (4) consecutive months, to provide monetary

support or the willful failure to provide more than token

payments toward the support of the child;

(E) For purposes of this subdivision (1), “willfully failed to

visit” means the willful failure, for a period of four (4)

consecutive months, to visit or engage in more than token

visitation;

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See Tenn. Code Ann. § 36-1-102(1)(A)(i), (C),(D), and (E).

VI.

A.

Father challenges the trial court’s conclusion that each of the relied upon grounds for

terminating his rights was established by clear and convincing evidence. We address those

grounds in turn.

B.

The trial court found that Father abandoned the children by willfully failing to visit

and willfully failing to support them:

In particular, as for grounds, the abandonment, failure to visit[,]

the Court finds that [in] the four months prior to the filing of this

Petition . . . in January of ‘09, [Father] had visited one time, and

that was a token visitation which was not sufficient and,

therefore, he abandoned the [C]hildren by failing to visit during

the months prior [to] this Petition being filed.

The Court acknowledges that the Circuit Court has recently

reinstated some visitation for [Father], and he has begun visiting

again. So it is possible the Court of Appeals looks at this and

that they may find that that ground has not been met, but be that

as it may, the Court is confident the other three grounds will

stand.

The abandonment, failure to support, there has been no proof or

evidence that [Father] ever paid child support. He was ordered

to pay $75.00 a month beginning in October of 2007. There is

no evidence that he has made any payments in child support for

these [C]hildren.

For purposes of establishing either form of abandonment – failure to visit or failure

to provide support – the relevant four-month period in this case is September 27, 2008

through January 27, 2009. The proof at trial showed that Father visited only once during this

four-month period – on December 31, 2008. Father’s last visit before then was over a year

earlier. The case manager characterized this single visit as “token” in nature; we agree.

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Father suggests that this ground was not established because there was a “no-contact” order

in place for part of the relevant period. However, the proof indicated that the court advised

Father at an October 2008 hearing that if he passed a drug test, visitation would be permitted.

The DCS case manager testified that Father did not submit to the drug test until December

2008 and thereafter had the one visit with the children later that same month. Father also

emphasizes that since the filing of the petition, he began exercising his right to visit the

children more regularly. While commendable, this does not change the fact of his earlier

abandonment of the children. “Abandonment may not be repented of by resuming visitation

or support subsequent to the filing of any petition seeking to terminate parental . . . rights .

. . .” See Tenn. Code Ann. Sec. 36-1-102(1)(F).

As to child support, Father was ordered to begin paying $75 a month beginning on

October 25, 2007. At trial, Ms. Shirley testified that Father had maintained stable

2

employment working for a temporary employment service “with some gaps in between” for

the past year to year and a half. Nonetheless, he made no child support payments during the

critical four-month period and none at all until May 2009, some five months after he was at

risk of having his rights terminated on this ground alone.

C.

As we have noted, Father participated in the creation of the permanency plan and

agreed that its objectives and requirements toward the goal of reunifying him with the

children were reasonable. Regarding Father’s progress, the trial court found as follows:

He did complete a drug rehab which was positive, however,

[Father] relapsed and has continued to have drug issues.

As far as the mental health assessment, there has been evidence

introduced that he had an intake, but there has been no evidence

introduced . . . that he followed through with mental health

counseling and has continued to go to mental health counseling.

Further, [Father] has failed to show that he has proper and

adequate housing and . . . , once the [C]hildren were in custody,

he continued to commit criminal offenses, and . . . and the

majority of those offenses involved drugs which further proves

At trial, Ms. Shirley testified that Father was to begin paying child support on October 25, 2006. 2

We are unable to ascertain the correct date because the order establishing support is not before us; however,

the discrepancy is not relevant to our analysis. 

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that [Father] failed to address his drug issues. So the Court

finds by clear and convincing evidence [that Father] has

substantially failed to comply with the Permanency Plan.

The proof showed that of his stated responsibilities under the plan developed in 2006,

Father had obtained employment in part of 2008-09 and completed the required mental health

and alcohol & drug assessments. In addition, the case worker indicated that Father “actually

completed an inpatient [alcohol & drug] program,” but relapsed – after exiting treatment,

Father did not remain sober as reflected by the new drug-related criminal charges he

incurred. There was no evidence that Father had obtained stable housing adequate for the

children. DCS records reflected that at the time of the hearing, Father had a two-bedroom

apartment that he was sharing with a girlfriend and her child. According to Ms. Shirley of

DCS, there was no room for the children at the residence. The evidence showed that while

the children remained in DCS custody, Father continued to incur new criminal charges –

driving under the influence and leaving the scene of an accident with property damages in

one incident in March 2007; possession of drug paraphernalia in May 2007; theft under $500

and public intoxication in September 2007; and possession of drug paraphernalia in

September 2007 – for all of which he was convicted pursuant to his pleas of guilty.

Lastly, regarding the permanency plan, Ms. Shirley testified that Father had never

filed any objections to any of the court orders regarding custody of the children, had never

contacted her to discuss or question what he needed to do to have the children returned to

him, and had never noted any objection to the affidavits entered by DCS reciting their

reasonable efforts to reunite the family.

D.

The trial court found that the final ground, commonly referred to as “persistent

conditions,” was also established:

As to ground number four, persistent conditions, the Court finds

that the conditions which caused the [C]hildren to come into

custody, which was [Father’s] drug use . . . , [and] lack of stable

housing. Those conditions continue to exist. [Father], based

upon the Testimony of Ms. Shirley, is living with a girlfriend

and a child, and there is no proof that that’s adequate housing,

but he would have to come forward to show that he has an

adequate house or could provide an adequate house, and he has

failed to do that. Furthermore, there continue to be some drug

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charges. So the Court finds by clear and convincing evidence

that these conditions continue to exist.

Father’s drug abuse was a challenge and presumably the most significant obstacle he

faced in regaining custody of the children. Among other problems, his drug use led to the

children’s removal and, despite completing inpatient drug treatment, Father had been

repeatedly arrested for drug-related offenses while the children were living in foster care.

At trial, Ms. Shirley testified that she felt Father’s conduct displayed a “total wanton

disregard for the welfare of the children.” We agree. Other problematic conditions also

remained – there was no proof of housing suitable for the children and, obviously, Father had

broken laws and violated the conditions of his earlier probation by his additional arrests.

In short, the evidence showed that Father had made some progress, but fell far short

of remedying the underlying causes for the children’s removal from his custody. Moreover,

the limited proof gave no indication that the persistent conditions would be remedied at an

early date. In summary, the evidence does not preponderate against the trial court’s finding

that each of the grounds alleged in support of terminating Father’s parental rights was clearly

and convincingly established.

VII.

Having concluded that the evidence does not preponderate against the trial court’s

“clear and convincing” finding of grounds for termination, we next consider whether the

decision is also in the best interest of the children. We are guided in our review by the

relevant statutory factors set forth in Tenn. Code Ann. § 36-1-113(c).

3

The factors are as follows: 

3

(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 by available 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

(continued...)

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The trial court set forth its best interest analysis as follows:

The Court finds that these children have been in custody now for

approximately over three years, that they have been, are

currently in a stable home, and they should remain there, and it’s

in their best interest that [Father’s] rights be terminated. The

mother has previously surrendered her rights, and the State of

Tennessee has partial guardianship, and the Court finds that it

would be in the best interest that [Father’s] right be terminated

and they be allowed to be adopted. So therefore, the Court is

finding that the State has met its burden on the Petition to

Terminate.

As the trial court’s findings suggest, at the time of the trial, the children had remained

in the same pre-adoptive foster home they were placed in for more than three years. To his

credit, Father had begun to visit the children since the termination petition was filed and had

(...continued) 3

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 issuch 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.

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recently began paying child support, albeit months after the petition was filed and years after

the court ordered him to do so. However, there was nothing to show that Father had made

“such an adjustment of circumstance, conduct, or conditions as to make it safe and in the

child’s best interest to be in [his] home. . . .” Father’s continued issues with drug and alcohol

abuse had led to new criminal charges since the children were taken from his custody. As

to housing, there was no indication that the apartment in which he lived with a girlfriend and

her child had adequate space and was otherwise suitable for the children. Meanwhile, the

children were in a stable home and all of their needs were being met by their foster parents.

The older child was partially deaf and mildly mentally challenged and was receiving special

education services as well as in-home services. According to their case manager, he had

“drastically improved just over the last couple of months” before the hearing. The younger

child had no developmental issues and both were otherwise healthy and doing well. The

foster parents were willing to adopt both children. Our review of the record leads to the

conclusion that termination of Father’s parental rights is in the best interest of the children.

VIII.

The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,

Eric B. This case is remanded to the trial court, pursuant to applicable law, for enforcement

of the court’s judgment and for the collection of costs assessed below.

_______________________________

CHARLES D. SUSANO, JR., JUDGE

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