### IN THE COURT OF APP EALS OF TENNESS EE AT KNOXVI LLE A ssi gne d on Br ie fs S ep te mb er 15, 200 8
STA TE OF TEN NES SEE DEPARTMENT OF CHI LDREN’S SE RVICES v. V.N., ET AL 

### .

Appeal from t he Juvenile Court for Gr eene C ounty No. J20604 Kenneth N. Bailey, Jr., Judge

No. E2008-01032-COA- R3-PT - FILED OCTOBE R 27, 2008

Th e Sta te of

Te nn e sse e De pa

rt me nt o f C hil dr e n’ s Se rv ic e s ( “ DC S” ) f ile d a P eti tion t o T e rm inate Parenta l Right s of V.N. ( “Mother” ), T.W., and any unknown f ather to the minor child K.B.N. (“the Child”). T.W. signed a Waiver of Intere st and Notice w aiving any rights he may ha ve to the Child. Af t er a trial, the Juvenile Court ente red a n order finding and holding, int e r a lia , tha t clear and convincing evide nce of

g ro u nds existed to terminate Mother ’s par ental rights to the Child under Tenn. Code Ann. §§ 36- 1-113(g) (1), ( g)(2) , and (g) (3), a nd that it was in the best i n t er es t of the Child for Mother’s pa

renta l rights to be terminated. Mother appea ls the termination of her pare ntal ri gh ts t o th is C ou rt . W e a ff ir m.

Te nn. R . A pp. P . 3 App e al a s o f R igh t; Judg me nt of th e Juv e nile Co ur t A ff

ir me d; Case Re manded

D. M I CHAEL S W I NEY , J., delivere d the opinion of the court, in which H ER S CHEL P. F R ANKS , P.J. and S HAR ON G. L EE , S P

. J., joined.

Leslie E. Doutha t, Gree neville, Tenne ssee f or the Appe llant, V.N.
Robert E. Cooper, Jr ., Attorney Ge nera l and Reporter ; and Elizabe th C. Driver, Senior Counsel for the Ap pe lle e , St a te of

Te nn e sse e De pa

rt me nt o f C hil dr e n’ s Se rv ic e s.-2- OP IN ION

Bac kgr ound

Th e Chi ld w a s b or n in Ju ne of 20 01 . I n th e su mme r o f 2 00 6, the Chi ld wa s tak e n in to State custody. At that time, Mother wa s in jail. Moth er h ad left the Child with her mother (“G randmother ”), but Gra ndmother had be en ar rested and taken to jail on a DU I cha rge le aving the Child wit h Mother’s sister. The Child was taken into State custody afte r Mother’ s sister was a rre sted fo r a fo urth D UI , a mon g o the r thin gs

.

On February 28, 2008, DCS filed a Petition t o Terminate Parenta l Right s of Mother, T.W., a nd any unknown f ather , to the Child. T.W. signed a W aiver of Inter est and Notice waiving any rights he may ha ve to the Child. The ca se proc eede d to trial in May of 2008.

At trial, Gra ndmother, who ha d filed a pe tition for custody of t he Child, testified that she wished to withdra w her petition, and that she believed that the Child wa s in the best place ment fo r h e r w ith the fo ste r f

a mil y. Gr a nd mothe r s ta te d: “ I c a n’ t pr ov ide fo r h e r r e a lly , a ndI’ m to o o ld to take ca re of her. I can’ t give her the things that somebody else ca n.”

Brenda Shar on Yusco a

thera pist with Nolachucke y Mental Health Center has been tr e a ting th e Chi ld s inc e Ja nu ary 11 , 2 00 7. Ms. Yu sc o s e e s th e Chi ld o ne to thr e e tim e s a mon th depending upon the Chil d’s needs. Ms. Yusco testified that the Child has not spoken much a bout Mother, but has spoken a bout her foste r par ents. Ms. Yusco testified that the Chi l d’s fe elings for he r f os te r p are nts are “ [g ]e ne ra lly ve ry po sit ive , s e e ms t o h a ve a re la tio ns hip , a

po sit ive re la tio ns hip
a ndfe e ls a

se ns e of se c ur ity wi th the m.” Ms. Yu sc o fu rthe r state d that the c ur re nt f os te r p la c e me nt:

appea rs to be very stable. They’ re very nurturing with [ the Child]. They both see m ve ry inv e ste d. Th e y b othc ome to s e ssi on s w ith [the Chi ld] a ndthe y c ome re gu larl y to the sessions. They seem very interested in he r well-be ing. They make re g ular
sc ho ol con ta c ts. Th e fo ste r m om i s a lw a ys able to i nf orm me of

sc ho ol p ro gr e ss. She’s fa miliar with the teac her, so ha s a r ea l g o od rela tionship wit h the school situation. And they, they appe ar ve ry nurturing in sessions with her.

Ms. Yu sc o te sti fi e d th a t he r i nta ke re c or d r e ga

rd ing the Chi ld r e ve a ls:
[the Child] was, is brought to the Center by Be cky Hite, DCS and Pam, her curr ent foster pa rent. It wa s, she was ha ving a lot of ange r pro b l em s , often the be havior’s
a t ni gh t prior to b e dti me . Sh e ha d s c ratc he d th e fo ste r m oth e r andsc ratc he s h e rs e lf when a ngry. Ge ts very angry, gets tense, wa nts to scratch. She ge ts upset after war ds and nee ds rea ssuranc e. [The Child] went into custody 7/30/2006. She was in a differ ent foster home prior to Pam. [The Chil d] was remove d from this home. [The Chi ld] ha s b e e n a t Pa m’ s si nc e 11 /27 of 20 06 . [ Th e Chi ld] a lso ha s so me ta ntr ums at s c h o o l. Sc h o o l b e h a v io r h a s imp r o v e d

. E a s il y f ru s tr a te d

. [ T h e Child] was-3-

remove d due to being in the ca r with an a unt who was drinking and driving. Gra ndmother who ha d custody was inca rce rate d at the time.

W he n a sk e d if

it w ou ld b e da ma gin g to the Chi ld t o b e in l imb o f or the ne xt n ine to twelve months waiting for Mother to be release d from jail and work a pe rmane ncy plan, Ms. Yusc o stated:
As [the Child’s] pre sent ed with t he stressor s, when she’ s fac ed with stressors, the instabilit y could be ve ry harmful for he r, just based on what I’ve seen a nd when she deals with the stre ss in her life. I m ea n , she bec omes so anxious and, you know, almost wants to isolate herse lf at the foste r hom e, an d s h e’s very fe arf ul of
se pa ratio n. Yo u k no w, I, a t ti me s it ’s a lmo st ap pe are d the re [i s] so me po st- tr a umatic str e ss f or [the Chi ld] , a lth ou gh I, I h a ve a t th is p oin t no t di a gn os e d th a t. Ms. Yusco anticipa tes that the Child will need to be in c ounseling for a t least another year or two.

Be c ky Hi te , a

fo rm e r D CS c a se wo rk e r i n th e Gr e e ne Cou nty Of fi c e , w or ke d th is c a se be gin nin g in Au gu st of 20 06

. Ms. Hi te te sti fi e d r e ga rd ing the ini tia l Pe rm a ne nc y Pl a n d a te d A ug us t 16, 2006 (“First Perm Plan”). Ms. H ite testified rega rding the tasks to be acc omplished by Mother under the First P erm Plan stating:

Th e fi rs t on e wa s that sh e wo uld c omp le te a lc oh ol anddr ug tr e a tme nt andma int a in an alc ohol and drug fr ee life style. That she would be able to provide fina ncially for herse lf and he r child, and tha t she would have the pare nting skil ls nece ssary to par ent her c hild. That she would have sta ble employment. That she w ould have sa fe a nd ind e pe nd e nt h ou sin g. Th a t sh e wo uld no t le t a ny on e in h e r h ome us ing ill e ga l dr ug s. That she would do the pare nting assessment and follow rec ommendations. That she would submit t o random drug sc ree ns. That she would resolve he r lega l issues and comply with the rules of pr obation. That she would e nroll in counselling (sic) at the Mental Hea lth Cente r or with a private provider , and that she w ould do the alcohol
a nddr ug a sse ssm e nt a ndfo llo w the re c omm e nd a tio ns

.
Mo the r d id n ot s ign the Fir st Pe rm Pla n o n th e a dv ic e of

he r pr e vio us c ou ns e l. M s. Hi te te sti fi e d th a t sh e re a d the Fir st Pe rm Pla n to Mo the r, e xp la ine d it t o h e r, a nda sk e d M oth e r i f sh e ha d a ny qu e sti on s a

bo ut i t. M oth e r a lso wa s g ive n a c op y o f the Fir st Pe rm

Pla n. Ms. Hi te testified that eve n though the First P erm Plan wa s only ratified for Gra ndm o t her, Mother

had knowledge of

it and was wor

king toward it. Ms. Hite revie wed the First Perm Plan with Mother while Mother wa s incarc erated and then a gain af ter Mother

was re lease d.

Mother wa s incarc erated for the majority of t he ti me M s. Hite worke d on this case. Ms. Hi t e t es t i fi ed that Mother did not complete a reha b progra m and did not have indepe ndent housing or a job when she was rele ased from jail. Mother had been employed in the past and ne ver told Ms. Hite that she didn’t know how to f ind a job. Ms. H ite stated: “We discussed housing, like her trying to get indepe ndent housing, not, not li ving with someb o d y el s e, b u t actua lly getting an apartment with her name on the lease so nobody would b e able to kick her out, you know, or-4-

a ny thi ng if

sh e did n’ t a c tua lly re nt the apa rt me nt. ” Mo the r did no t obta in hou sin g w hil e Ms. Hi te was the c ase ma nager

for this c ase. Mother did submit to some random drug sc ree ns and did have
a pa re nti ng a sse ssm e nt. Mo the r too k a dr ug sc re e n on Ju ne 12 , 20 07 a nd it wa s n e gativ e . M s. Hi te te sti fi e d th a t Mo the r c omp le te d a n A &D a sse ssm e nt anda pa re nti ng a sse ssm e nt.

Mother wa s relea sed fr om jail on August 31, 2006 a nd was ba ck in jail on September 8, 20 06

. Mo the r wa s re le a se d fr om ja il o n Fe br ua ry 7, 20 07 to h a ve a no the r b aby a ndwa s b a c k in ja il a pp ro xim a te ly t

hr e e we e ks la te r t o f

ini sh se rv ing he r t ime . M oth e r w a s su pp os e d to c omp le te the tasks on the First Perm Plan by February 16, 2007.

When a sked wha t was done to a ssist Mot her, Ms. Hite state d:

DCS had Solut ions to help her with the parent[ing], to do the pa renting asse ssment
a ndthe y we re f

oll ow ing thr ou gh wi th any re c omm e nd a tio ns fr om the a sse ssm e nt,
su c h as pare nti ng e du c a tio n cla sse s, su pe rv ise d visi ta tio n whe n she wa s out of ja il. W e we re a lso , w he n s he go t ou t of ja il we were wo rking on tryin g to ge t he r s ome ho us ing . Sh e , s he ha d a lis t of pla c e s she c ou ld ch e c k an d she wa s che c kin g on s ome herse lf and DCS was going to try to assist he r with, like getting the elec tricity hookup , th e , th e de po sit

fo r the re nt andthi ng s li ke that.

W he n Mot her go t ou t of ja il, DC S se t up su bs ta nc e abu se tr e a tme nt f or he r w ith No lachu c ke y M e nta l H e a lth . M s. Hi te te sti fi e d th a t D CS di d a re fe rr a l f or dr ug sc re e ns be c a us e Mother could not a ffor d them herse lf, helped Mother with the mental he alth intake at Nola chucke y, a ndtr ie d to a ssi st M oth e r w ith fi nd ing ho us ing . M s. Hi te te sti fi e d tha t whe n Moth e r w a s o ut o f j a il:

She didc omp le te the a sse ssm e nt a t No la c hu c ke y Me nta l Ce nte r, the me nta l he a lth intake appointment. I don’ t know if she followe d through wi th any of the
rec ommendations. She did not get emp l o y ment. She did not get independent housing.

Ms. Hite testified that Louise Ve rra n, the Sol u t i o ns worker , conducte d supervised visitations with Mother, Gra ndmother, and the Child appr oximately half a dozen times a nd that as part of that visit ation, Ms. Verr an wor ked to provide a

generic par enting class.
From April 19, 2007 thr ough June 27, 2007, nine visits wer e schedule d for Mother wi th the Chi ld, bu t Moth e r at te nd e d only fo ur of the se a nd wa s lat e fo r one of tho se fo ur . The fa mil y visit of June 27, 2007 was a birthday party for the Child. Mother had pr omised to bring a ca ke and prese nts, but she failed to show up.

By o rd e r e nte re d A ug us t 1, 20 06, th e Ju ve nil e Cou rt fo un d th a t r e a so na

ble e ff orts
wer e made to preve nt the Child’s removal from the home

. Ms. Hite cea sed being the c ase ma nager in May or June of

2007.

The c ase w as transf

err ed to another

case worke r, Brooke Slocum, on June 20, 2007. Another pe rmane ncy plan dated July 12, 2007 (“Sec ond Perm Plan”) wa s prepa re d an d was-5-

introduced at trial during Ms. Slocum’s testimony. Mother did not sign the S econd Perm Plan and objected to its introduction at trial cla iming that it constituted hear say. The Juvenile Court entere d the Se c on d Pe rm

Pla n o ve r M oth e r’ s o bje c tio n. Th e Se c on d Pe rm Pla n is su bs ta nti a lly sim ila r t o the Fir st Pe rm Pla n wi th re ga rd to the ta sk s f

or wh ic h M oth e r w a s to be re sp on sib le . T he Ju ve nil e Cou rt e nte re d a n o rd e r S e pte mbe r 1 4, 20 07 app ro vin g th e Se c on d Perm Plan a nd fi nd ing that D CS “has use d rea sonable e fforts to reunite the child with the mother a nd has attempted to wor k with the mother, but she is not cooper ative.”

Ms. Slocum testi fied re garding Mother ’s visitations with t he Child stating:
[Mother] had, whe n I bec ame t h e case manage r, the 6/27/07 visit, which was the birthday party that she didn’t show up for, the 7/5/07 visitation that she didn’t show up for, a nd the 7/11 visitation, or actually the 7/5 was of fer ed to her

but she chose not to. She wanted it for the following wee k. And t hen 7/11 was a no-show whe re the supervi s or and [ the Child] waited at Mc Donald’s. And the n there was a 7/19/07 visitation t hat I super vised.

When she supervised the visit, Ms . Slocum observed:

T h er e wa s minimal int era ction betwee n [the Child] and [Mothe r]. The re w as nu me ro us fa mil y me mbe rs t her e . [ Th e Chi ld’ s] , o r [ Mo the r’ s] so n w a s b ro ug ht i n by a re lative. [Mother] went outside; she smoked a c igare tte. She interac ted with a po lic e of fi c e r. [T he Chi ld] playe d most ly in the , the play yarda ndwi th the , th e c hil d of a f riend of [ Mother’s] that brought [Mother] to the visitation.
By the tim e of thi s visi t almo st a mon th h a d e laps e d s inc e Mo the r h a d la st s e e n th e Chi ld. Af te r J uly 19 , 2 00 7, th ere we re no mor e vis itatio ns be c a us e Ms. Slo c um w a s u na ble to l oc a te Mo the r. Ms. Slocum tried to contact Mother by phone and thr ough Gra ndmother, but was una ble t o contac t Mo t h er. Mother

did not call Ms. Slocum. Ms. S locum testified: “I ta lked with [Mother] at two visitations t hat I was present at, the, t he one wher e I was introduce d to her a nd that was on 6/20/07, and then that visitation on 7/19/07. Otherwise, it was me attempting to contact her.”

When a sked if she c hecke d to see if t h e Gr ee n e C ounty Jail, where Mother wa s in carcera ted, ha d p ro gr a ms a va ila ble to a ssi st w ith thi ng s li ke ho us ing a nddr ug a sse ssm e nt, Ms. Slocum stated: “I had be en informe d on another case that, and I do know th at s t at e p risons have tho se kin ds of

fa c ili tie s, that Jo hn so n Ci ty may , but I wa s in fo rm e d th a t G re e ne Cou nty didno t, appar en t l y

... . ” M s

. Slocum testified that to her knowledge DCS has never provided a ny type of service s to someone in jail.

When a sked if the Child ever told her anything about Mother , Ms. Slocum st ated:
She has, I mea n, kind of historically said that she worries about [Mother ]. Said that sh e , mo st s pe c if

ic a lly , I thi nk

be c a us e it’ s th e fr e sh e st i n my me mor y, the la st v isi t that we ha d on April 30th, she aske d if her mom wa s still in jail. I as k ed what she knew a bout jail, and she said that she ha d been the re. And I kinda looked at her a nd-6-

she said I didn’t do a nything bad. And I said okay, and she said she went to visi t her aunt there , that she worried i f h er mom was doing rea lly well and she wa nted her
mom to d o w e ll.
Although Mother had a n opport u n i t y to work the pe rmane ncy plan whe n she wa s rele ased in April and out of j ail until June, Mot her stil l was subst antially noncompliant with the plan during that t i m e p er i o d . Ms. Slocum testi fied that Mother completed only one c omponent of the pe rm a ne nc y p la n, ge tti ng a ps yc ho log ic a l a sse ssm e nt, bu t that Mo the r did no t fo llo w thr ou gh wi th the re commendations of that a ssessment.

Ms. Slocum testi fied that in her opinion it i s in the Child’s best interest for Mother’s pare ntal rights to be terminated. Ms. Slocum testified that the Child’s foster par ents want to adopt the Child.

Kar en Brown, a probation off

icer with the First Tenne ssee Human Resource Agenc y, testified that Mother wa s place d on probation with her in 2002. Mother was alrea dy on probation when Ms. Brown joined the F i rs t T en n es see H uman Resourc e Age ncy. Mother ha s been on probation with Ms. Brown on and off since 2002.

Ms. Br ow n te sti fi e d th a t in Ap ri l of 20 07 , M oth e r w a s o n p ro batio n “ fo r a the ft , driving on suspended, a nd I think para pherna lia, possession of drug para pherna lia.” Ms. Brown saw Mother in June of 2007. In July of 2007, Ms. Brow n had a wa rra nt issued on Mother for violation of probation. Mother pled guilty to thi s char ge. Mother then was incarce rate d on a sepa rate matter in September of 2007. W hen aske d whether she had dr

ug scre ened Mothe r, Ms. Brown testified:

The last time I scr eene d her - one thing I guess I need t o ex plain is I haven’ t seen [Mother] that much. Most of the t ime she’s either vi olated or in jail. S o the best that she’s e ver done was last yea r in, in May and June when she reported. I did not drug
sc re e n h e r e ith e r o f tho se tim e s. I did n’ t fe e l the ne e d to. She wa s, sh e wa s a c tua lly doing pretty well....But she got i n t ro u b le aga in. But I have drug sc ree ned her , pr ob ably in s e ve ra l ye ars . I wo uldgo ba c k a t le a st f ou r y e ars

. Mo st of th a t ti me sh e ’s e ith e r i nc arc e rate d o r s he ’s ou t on a vio la tio n w arr a nt. Ms. Brown agre ed that since her initial conta ct with Mother in 2002, Mother has be en in jail more than she’s be en out on probation.

Terry Lande rs testified for Mother. Mr. Landers has known M other for about seve n year s as a f

riend. Mr. La nders is disabled, a nd he testified that Mother clea ned his house and w ashed clothes f o r h im

. M r

. L a n d e r s te s ti f ie d th a t M o th e r d id n o t h a v e a p la c e to s tay w h en she w as rele ased f rom jail to have a

baby, so:

I told her I need somebody to do my laundry and w ash dishes and c ook and stuff like that. So I told he r - I’ve , I’ve got a two-story house and it’s got a n upstairs, got two, two bedrooms upstairs and a big w alk-in closet....And I told he r she c ould just m ove up the re a ndI c ou ld p a y h e r a wa ge or so me thi ng , you kn ow , to hel p, he lp m e ou t.-7-

Mr. Lande rs testified that he has “8 and a half acr es of property and a ba rn and a chicke n house and a two story house. I t’s got 1, 2, 3, 4, 5 bedrooms, a kitche n and a living room.”

M r. L an d er s trusts Mother and stated: “ [s]he ’s a r eal good pe rson. She’s kind hearted.” Mr. Lande rs thought that Mother was in ja il f or violating pr obation, but did not know what Mother wa s on probation for, and did not know t hat M other has been in jail twenty times since 2002.

Mother testified at trial. She was aske d if she understood the t hings she wa s supposed to do unde r the perma nency plan and she stated: “No....Y eah. I didn’t understand the , I’ve never had to depe nd on myself so rea lly, I didn’t even know what plac e to work.” When Mothe r wa s asked what ser vices we re of

fer ed to her

by DCS, she stated:

T h er e were ser vices off

ere d to me, but it wasn’t rea lly nothing t o help me. The y never rea lly showed me the way in doing anything. I m ean, they would explain stuff to me, but I’ve, I’ve never rea lly had to depend on myself bef ore, so I rea lly didn’t know what to do.

Mother wa s questioned about the time she was out of jail from April 19, 2007 through August 28, 2007. She stated:

W e ll, wh e n I go t ou t of ja il I we nt, I h a d my oth e r t wo kid s a ndI kno w that I , I did the wrong by going, I w ent and got my other two kids, which I shouldn’t have done, beca use it was too much on me and I couldn’t do it. Trying to work, trying to take
car e of both of my other

kids, do probation and trying t o do, complete Permanenc y Plans for [the Child], I c ouldn’t do it all. But I was trying to do all that I could and pu t a ll the e ff

ort th a t I c ou ld at th a t ti me in o n it

. Mother testified that when she got out of jail in April she went back to w ork t ak i n g ca re o f M r. Lan d er s and stated: “I didn’t work for him every day though. I just worked e nough to where he
wo uld pa y my cou rt c os ts a ndmy f ine s. ...’ Caus e his so n w a s li vin g th e re a ndI c ou ldn ’t stay w ith him at that time because he wa s providing a home for his son.” When asked if she conside red the Child’s int ere sts at all while she wa s out of jail, Mother s tated: “Yes, I di d, but I knew that I couldn’t do it. I wasn’t ge tting no help from nobody so it was hard to do. I don’t h av e l i ce nse (sic) and I don’t have no car . I don’t have nobody to help me. My family’s in my situation so....”

When a sked why DCS was una ble to get in touch with her, Mother stated:
I didn’t, ’c ause I didn’t have n o place to live, I didn’t have now hereto have a phone....I ha d to take my other two kids bac k to the people that had tempora ry or ha d prior attorney (AS STATED) of them beca use I couldn’t support them and I c ouldn’t do it a ll b y my se lf . So I j us t pr e tty muc h g a ve up a t th a t po int

. Mother also testified:-8-

Well, I’ ve bee n, I’m j u s t g o i ng to put it l ike this. I know [the Child] - I ’ve ha d a rough life a ll my li fe a nd I know she’ s probably better off whe re she ’s at, but I wa nt to s e e he r a ndI l ov e he r ’ c a us e sh e ’s my b aby . A nd I kn ow th ey can pro ba bly provide b et t er than what I can. But I love he r, you know. That’s all I ask, is for visitation wit h her. I know I proba bl y couldn’t give he r what they can give her. I know they ca n give her

more, more than I c an. The only thing I ask of the Court whatsoeve r is that I ca n get visitation with her. I’ll let them adopt her or whatever it take s. I jus t wa nt to se e he r if I’ m do ing go od

. An d I’ ve be e n tr yin g to d o my GED in jail. I’ve been ta

king, I’m taking my prac tice test right now. And I, I me an, I m e a n, I c a n a sk

fo r a no the r c ha nc e bu t I ’m su re I’ m no t go ing to g e t, b ut I wa nt t o d o e v e r y th in g I c a n to s e e my k id s b e c a u s e I lo v e my k id s

. Y e a h , I ’ v e had a dr ug problem for

year s and I’ ve neve r bee n able to get in rehab. I’ ve neve r, I’ ve neve r e ve n h a d a ny he lp t o, yo u k no w, ge t to that po int of re ha b. I’ ve tr ie d to do it o n my probations and stuff

and I c ouldn’t get in. And it was j u s t t o o m u ch on me at one time and I’d get out there and mess with the wrong people. I want to make a life for my ki ds , th ou gh . I kn ow wh e n I ge t ou t I ’m no t go ing to b e on no pa pe r b e c a us e Terry’s going to pay my probation off icer . So I don’t think I ’m going to be in any
mor e tr ou ble ’c a us e dr

ug s a in’ t my thi ng no mor e a nd I’ m done wi th the m. I c a n’ t, I don’t know. I guess, I just wa nt to be a part of [the Child’s] life ’cause I know she loves me and I love her . All I ask is for some type of visitation with her.

Mother testified that she was due to ge t out of jail in June. Mother testified that she is g oin g to liv e a t Mr . L a nd e rs ’ h ou se wh e n s he ge ts o ur of ja il a ndstate d:
he’s going to give me, whe n I get out t h at ’s wher e I’ m going to go and stay. He’s got, he has put a bed in a n extra room and I’m going to start taking car e of him fr om the tim e I g e t ou t of ja il on

. He ’s go ing to pa y my, he ’s go ing to h e lp m e ge t on my fe e t.

When a sked why she missed visitations, Mother stated: “Bec ause I didn’t have no ri de , a ndthe y, the y mo ve d v isi ta tio n f ro m my ma ma ’s a ndI w a s a lw a ys , I wo ulda lw a ys stay w ith my mom where I could see [the Child] and I just didn’t have no transporta ti on....My mom didn’t have, the y wouldn’t, they didn’t have our visits together.” Mother testi fied that she fa iled to show up at the Child’s birthday party as promis ed: “’Cause I didn’t have nothing to gi ve her , and I didn’t want to, I didn’t, I w as emba rra ssed. I didn’t show up, ’c ause I d i d n ’t wa n t to hurt her no more ’cause I didn’t ha ve nothing. I had no job. I ha d no way of getting her anything.” Mother volunteere d to bring the things to the birthday party “[ b]ec ause I thought I could do it.”

Mother testified that the Ch i l d l i v ed wi t h Gr an d m o t h eran d s t at ed : “s h e’ s always lived with my mom but I’ve always lived w ith my mom . So we was always together....I’ ve always lived with [t he Child]. I just, my mama always ha d custody bec ause I was in and out be cause I wa s on drugs and I couldn’t, I was just, I was pretty much, I would go to my mom’s to spend time with [the Child] and leave .”-9- When the guardia n ad litem asked how Mother could convince the court that things
wo uldbe dif

fe re nt t his tim e , M oth e r s ta te d:
I, I ge t out in a month....Why am I changing? Because...Beca use, like I said, I got out and I ha d every, I still got every intention I’m d oing right for her , but I put too
muc h o n me a t on e tim e . I wa s h a vin g to o mu c h a ndI w a sn ’t ha vi ng e no ug h h e lp and I c ouldn’t do it by myself....Which now I have Terry that’s going to help me pay my financia ls and, and I can take care of hi m and he’ s going to provide me a plac e to l ive , a nd he ’s go t a fi ve be dr oo m ho us e a ndthe y a in’ t no bo dy liv ing the re bu t hi m. And I’m, I ’m willing to do whatever to g et h er b ack, or I’m doing whate ver to ge t vis itatio n w ith he r. I j us t, I jus t kn ow I d on ’t wa nt t o b e too k o ut o f h e r l if e . A ndit do n’ t matte r w ha t I ha ve to d o. I, the re a so n, the wh ole po int is I tho ug ht m y mama was going to get her back anyway. That’s the whole rea son I rea lly didn’t - - I mean, I did what I ha d to do but I didn’t rea lly try, try as hard a s I could, bec ause I thought Mama wa s get t ing her ba ck. Mama told me she was ge tting her bac k. Mama ha d done eve rything she was supposed to get her back so I t hought she was ge tting her back.

After

trial, the Juvenile Court e ntere d an Orde r Terminating Parental Rights on June 19, 2008 finding and holding, int e r a lia :

The Court finds, base d upon the testimony and the fa cts that have been prese nted her e today, that the gr ounds, by clea r and c onvincing evidenc e, exist under Te nn e sse e la w fo r ab a nd on me nt; that gi ve n [ Mo the r’ s] lif e sty le a ndc on du c t prior

to her most re cent inca

rce ration, that she e xhibited a wanton disregar d for the w elfa re of her c h il d , g iv e n th e f

a c t th a t s h e ’ s h a d n in e te e n p r io r in c ar c e r a ti o n s p r io r to the most rece nt one. Furthermore , that she had a drug addiction, which she has admitted t o t h e psychological examiner , which is a wa nton disregar d for the w elfa re of her chil d, and she a dmitted that her mother wa s essentially taking ca re a nd raising her
c hil d. So I fi ndthe De pa rt me nt h a s me t th e gr ou nd s f or aba nd on me nt. Secondly, I find the D epartment has m et t he clear and convincing burde n of proof of the ground s for substantial noncomplianc e, by [Mother ], with the
re sp on sib ili tie s in the Pe rm a ne nc y Pl a n. Th e Pe rm a ne nc y [ P] la n w a s a do pte d b y th is Court in Septembe r of 2006 and w hich [Mother ] re ceive d a copy. E ven though she
re fu se d to sig n it

on a dv ic e of

c ou ns e l, s he didre c e ive a c op y o f i t, kne w that it
re qu ir e d h e r t o d o c e rt a in thin gs , a ndsh e faile d to do tho se thi ng s. She wa s to complete a n Alcohol and Dr ug Assessment and follow the re commendations. She was to complete a reha

b progra m and participate in afte rca re by attending AA or NA meetings. She didn’t complete a reha b progra m and there ’s no evidenc e that she attended any AA or N A meetings. She did not, and there ’s been no testimony that she submitted to counseling at the Mental Hea lth Cente r. There ’s bee n no testimony that she had r esolved he r lega l issues, and ac tually after this P erma nency Plan wa s put into eff

ect she added to her legal issues with further incar cer ations. I further find that un de r the Pe rm a ne nc y Pl a n sh e [w a s] re qu ir e d to ob ta in andma int a in-10-

employment. She was not able to do that. She was working for this Mr. Landers, but there has bee n no proof of what her actua l pay was o r p ay st ubs or bank a ccount
rec ords. And further, she did not complete the pare nting a ssessment, and she w as out of jail for a

period of f

ive months, and during that time she only visited her c hild five tim e s. An d s o th e re wa s r e a lly no e ff ort bei ng pu t forth by [M oth e r] to s ub sta nti a lly comply with or eve n comply at all wit h t h e P er manenc y Plan, and the Court finds that th e re wa s amp le evi de nc e pr e se nte d to pr ov e that sh e su bs ta nti a lly faile d to comply with the Permane ncy Plan.

Ground Numbe r 3, t h e C o u rt finds as to the termination, by cle ar a nd convincing evidenc e, of [Mother’ s] rights is for the persistenc e of c onditions. At t he time this ch i l d wa s removed by the Depa rtment of Children’s Ser vices, the grandmother , who was the custodian of the c hild at the time, was in jail. The mother...wa s in jail, and an aunt, who ha d just physical custody of t he child, did not ha ve le ga l c us tod y, wa s ar re ste d for a DU I f

orth o ff e ns e . A ndso the re wa s a va lid basis for t h e child to be placed in the c are and custody of the Depa rtment of Chi ldr e n’ s Se rv ic e s.
The c o n d i t i o ns which led to that re moval still exist, and there ’s bee n no e vid e nc e that th e y’ ve be e n r e me die d, a ndgiv e n th e fa c t th a t th e mothe r i s st ill in j a il, there is lit tle likelihood the conditions would be remedie d at an early date. The Court believes, e ven upon her

rele ase in late June of 2008, that it would take [ Mother] at least a ye ar to w o rk a P ermanency Plan (and the Court believes she would not be
succe ssful) and that would just mean that the child would be in custody for another twelve months, which would put her at almost 32 months being in custody of foster
car e. And the Court finds that that’s unrea sonable a nd is not in t he best intere st of the child.

Th e Cou rt a lso fi nd s that the c on tin uatio n of a pa re nt/ c hil d relat io ns hip be tw e e n [ Mo the r] a nd[the Chi ld] wo uld gr e a tly dim ini sh the c hil d’ s c ha nc e s o f e arl y int e gr a tio n in to a

sa fe , sta ble a ndpe rm a ne nt h ome . Ba se d u po n th e te sti mon y o f a ll those involved, the child’s c urre nt placeme nt is in her best interest. It is a stable and safe and permanent home, a nd the foster pare nts are willing to adopt. S o the Court finds that by clea

r and c onvincing evidenc e grounds e xist for terminat i o n of [Mother’ s] rights based upon the persistent (sic) of conditions, substantial
no nc omp lia nc e a ndaba nd on me nt. As to the second pr ong of a termination of pare ntal rights, the best interest of the child, the Court finds that by clea r and convincing evidenc e that it would not be safe at this tim e for

the child t o b e re t u rned to the mother or her home. The Court finds that the mother ha s failed to m ak e an adjus tment in her life, a lasting adjustment at this time to a llow f or reunific ation. The Court finds that a c hange at thi s ti me of

the c are take rs of th is c hil d w ou ld h a ve a de tr ime nta l, e mot ion a l, psychological eff

ect upon the child bec ause sheis attache d to her foste r par ents. The Court has no doubt that this child loves her gra ndmother and love s her mother , but-11-

that the child has found a safe and st able home, and the Court believe s that’s in the
c hil d’ s b e st i nte re st.

The Court wishes to comment on the [Grandmother’ s] t estimony today, and to say it apprec iates the fa ct she ha s her gr anddaughte r’s best interest in mind whe n she testified that she thought her granddaughter wa s in a good placement; the foster pare nts were taki n g g o o d car e of he r. Ac tually, she said “the be st care .” And so I appre ciate he r honesty with that. The Court knows that it’s tough for a grandmother to h av e s omebody else taking car e of he r gra nddaughter , and I know it’s tough for he r t o s it h e re a ndloo k a t he r d a ug hte r andsa y th a t sh e thi nk s h e r g rand daug hte r i s in the best place

. Furthermore , t he home whe re the child would be, if in the c ustody of the mother, is not an appr opriate home . Based upon prior history, the re’ s been c riminal activity around the child when she ’s bee n in t h e cu s t o d y of the mother, give n her drug use a n d o th e r

p r o b le ms th a t h a v e le d to h e r in c ar c e r a ti o n

. So th e Co u r t f in ds that by clea

r and c onvincing evidenc e that it is in the best interest of the child that the pare ntal rights of [Mother] be terminated.

As to [ T. W .] , [ he ] h a s si gn e d a waive r of a ny ri gh ts that hema y h a ve to this
c hil d

. T h e C o u r t f

i n d s t h a t s a i d w a i v e r i s p r o p e r a n d ap p r o p r i a t e

. T h e C o ur t a lso notes that it’s in the best interest of [the Child] that the relationship and any pa renta l rights o f [T

. W. ] be terminated and it is in her be st interest that she re main in her
curr ent place ment based upon the termination of the rights of [T.W.]

.
Mo the r a pp e a ls the te rm inatio n o f h e r p are nta l r igh ts t o th is C ou rt

.

Discussion
Although not stated exac tly as such, Mother r aises six issues on appea l: 1) whe ther the Juvenile Court e rre d in failing to grant Mother a continuance ; 2) whethe r the Juvenile Court e rre d in admitting t he two perma nency plans; 3) whether the Juvenile Court e rre d in finding that clear and convincing evide nce e xisted to terminate Mother’ s pare ntal rights for abandonment; 4) whe ther the Juvenile Court err ed in finding that clea r and convinc ing evidence existed to terminate Mothe r’s pa re nta l r igh ts f

or failu re to su bs ta nti a lly c omp ly wi th the pe rm a ne nc y plan; 5) wh e the r the Ju ve nil e Court erre d in finding that clear and convinc ing evidence existed to terminate Mother’s par ental rights on the ground of pe rsistent conditions; and, 6) whethe r the Juvenile Court er re d i n finding
c le ar a ndc on vin c ing e vid e nc e that it wa s in the Chi ld’ s be st int e re st fo r M oth e r’ s p are nta l r igh ts t o be terminated.

Our r e vie w i s de novo up on the re c or d, a c c omp anie d b y a pr e sumpt ion

of c or re c tne ss of the finding s of fa ct of the tria l court, unless the preponder ance of t he evidence is otherwise. Tenn.-12-

R. Ap p. P. 1 3( d) ; Bogan v. Bogan , 60 S.W .3d 721, 727 (Tenn. 2001). A t rial court's c onclusions of law ar e subjec t to a de novo revie w with no presumption of cor rec tness. S. Constructors, Inc. v. Loudon Count

y Bd. of Educ. , 58 S.W .3d 706, 710 (Tenn. 2001)

. Our Supreme Court r eiterated the standard of revie w for case s involving termination of par ental rights stating:

This Cour t mu s t r e v ie w f in d in g s o f

f a c t m a d e b y th e tria l
c ou rt de novo upon the record “acc ompanied by a pr esumption of the
corr ectne ss of the finding, unless the pre pondera nce of the evidenc e is o the rw ise .” Te nn . R. Ap p. P. 13 (d ). To te rm inate pa re nta l r igh ts, a trial c ourt must determine by c lear and convinc i ng evidenc e not only th e exis tenceof at lea st one of the statutory gr ounds for termination but also that termination is in the child's best interest. In re Valentine , 79 S.W.3d 539, 546 (Tenn. 2002) (citing Tenn

. C o de Ann. § 36-1-113( c)) . Upon re view ing a termination of pa renta l rights, this C ourt's duty, the n, is to determine whe ther the tria l court's findings, made under a clear and convincing standa rd, ar e supported by a pre pondera nce of

the evidenc e.

In re F.R.R ., III

, 193 S.W.3d 528, 530 (Tenn. 2006)

.
In De pa rtm e nt o

f Ch ild re n’ s S e rv ic e s v . D .G .S .L. , this Court di scussed the r eleva nt burden of proof in ca ses involving termination of pare ntal rights stating:

It is well established that “par ents have a funda mental right to the
car e, custody , an d control of their children.” In re Drinnon , 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Sta nle y v . I lli no is , 405 U. S. 6 45 , 92 S. Ct. 12 08 , 3 1 L . E d. 2d55 1 ( 19 72 )) . “ Ho we ve r, thi s ri gh t is no t abs olu te a nd pa re nta l rig hts ma y be te rm inate d if the re is clea r and c onvincing evidenc e justifying such termination under the applicable statute.” Id. ( c iting S a n t osky v . Kramer , 455 U.S. 745, 102 S. Ct . 1388, 71 L. Ed. 2d 599 (1982))

. Termination of pare ntal or guardianship rights must be base d upon a finding b y t h e court that: (1) the grounds f or termination of pare ntal or guar dianship rights have be en es t abli shed by cle ar a nd
c o n v in c in g e v idence ; and (2) te rmination of the par ent’s or gua rdian’s righ t s i s i n the best intere sts of the child. Tenn. Code A nn. § 36-1-113( c )

. Be f

o r e a p ar e n t’ s r ig h ts c a n b e te r mi n a te d , it mu s t be sh ow n th a t th e pa

re nt i s u nf

it o r s ub sta nti a l h arm to the c hil d w ill result if pare ntal rights are not terminated. In re Swanson , 2 S.W.3d 18 0, 18 8 ( Te nn . 1 99 9) ; In re M.W .A ., J r. , 980 S.W.2d 620, 622 (T e nn . Ct . A pp . 1 99 8) . Si mil arl y, be fo re the c ou rt ma y inqu ir e a s to-13- whether termination of pa renta l rights is i n the best intere sts of the child, the court must first determine that t he grounds for termination have be en esta

blished by clea

r and c onvincing evidenc e. Te nn. Code Ann. § 36-1-113( c).

De p’ t of Chi ldr

e n’ s Ser vs. v. D.G .S .L. , No. E2001-00742- COA-R3-JV, 2001 Te nn. App. LEXI S 941, at **16-17 (T enn. Ct. App. Dec . 28, 2001), no appl. perm. appe al filed . Clear a nd convincing evidenc e supporting any single ground w il l j u stify a termination orde r. E.g., In re Vale ntine , 79 S.W.3d 539, 546 (Tenn. 2002)

.

We be gin by addre ssing whether the Juvenile Court err ed in failing to grant Mother a continuanc e. “The granting or denial of a motion for a continuance lies in the sound discretion of the court. The ruling on the m otion will not be disturbed unless the r ecor d clea rly shows abuse of discretion and prejudice to the party seeking a c ontinuance.” Blake v. Plus Mark, Inc

. , 952 S.W.2d 413, 415 (Tenn. 1997) (citations omitted).

The Juvenile Court f

ound Mother to be indigent and a p p o i n t ed her an attorney by order enter ed Marc h 13, 2008. Appar ently, Mother was not ha ppy with that attorney and she ‘ fired’ the attorne y and re quested that new counsel be appointed. The Juvenile Court a ppointed Mother’s
cu rr en t at t o rn ey by order enter ed May 1, 2008, nunc pro tunc to Mar ch 25, 2008. At trial, the Ju ve nil e Cou rt

he ardarg ume nt o n Moth e r’ s mo tio n f or c on tin ua nc e . U nf

ortun a te ly, thi s mo tio n is not in the re cord on a

ppeal. The trial transc ript shows that Mother’s attorney stated that the motion fo r c on tin ua nc e wa s f

iled “du e to the la te da te of my a pp oin tme nt” a ndbe c a us e Mo the r “ fe e ls i t would be in her

best interest to allow Counsel m ore tim e to adequately pre pare .” The Juvenile Court de nie d th e mot ion statin g:

W e ll, Ms. Do uth a t w a s r e c e ntl y a pp oin te d, ho we ve r that w a s d on e so a t th e re qu e st of [M oth e r] . Sh e ha d a sk e d f or a ne w atto rn e y. Th e Cou rt re luc ta ntl y a gr e e d to appoint a new at t o rn ey , b u t she has put her attorney in this position herself by dismiss ing her former a ttorney. So I’m not going to continue the ca se today.

As pe rt ine nt t o th is i ssu e , T e nn . Co de An n. § 3 6- 1- 12 4 p ro vid e s:
36 -1 -1 24 . Cont e st e d te r mi nat ion s of par e nt al ri ght s and ado pt ion s – App e als – Expedi ted sch ed ule. – (a) In all ca ses wher e the termination of pare ntal rights or
a do pti on of

a c hil d is c on te ste d b y a ny pe rs on or a ge nc y, the tr ia l c ou rt

sh a ll, consistent with due proc ess, expe dit e the c ontested termination or a doption proce eding by enteri n g such sche duling orders a s are nece ssary to ensur e that the
case is not delayed, a nd such ca se shall be given priority in setting a fina l hearing of the pr oc e e din g a ndsh a ll b e he ard at the e arl ie st p os sib le date ov e r a ll o the r c ivi l litigation ot her tha n child protec tive service s case s arising under title 37, cha pter 1, parts 1, 4 and 6.

* * *-14-

(c) It is the intent of t he genera l assembly t hat t he permanenc y of t he plac ement of a child who is the subjec t of a termination of pare n t al ri g h t s proce eding or a n adoption proce eding not be delayed any longe r th an i s ab solutely nece ssary consistent with the rights of all parties, but that the rights of the child to permane ncy at the ea rliest possible date be give n priority over all other civil litigation ot her tha n child protec tive service s case s arising under title 37, cha pter 1, pa rts 1, 4 and 6.
Tenn. Code Ann. § 36- 1-124 (2005)

.

In her brief on appea l, Mother states that her “pre sent counsel wa s appointed a me re forty-f ive (45) busine ss days prior to the Te rmination Procee ding.” Mother a rgues that had she had:

a n opp ortun ity to inv e sti ga te a de qu a te ly, [M oth e r] wo uldha ve su bp oe na e d L ou ise Ve rr a n o f S olu tio ns to v e ri fy that th e the ra pe uti c vis it ati on wa s p ro vid e d o nly to [Gra nd mo th e r ] , w h ic hw o u ld have pr oven more eff iciently that the Depa

rtment failed to m ake re a so na

ble e ff orts to [M oth e r] a nd ne gatin g (s ic ) the a lle gatio n o f f a ilu re to comply with the perma nency pla n. [Mother] did have the r ecor ds from Ms. Ver ran; ho we ve r, tho se re c or ds are not in dicativ e of the int e ra c tio n M s. Ve rr a n h a d w ith [Mother] a n d o r

th e in te r a c ti o n M s

. V e rr a n h a d w ith [ G r a n d mo th e r ]

. T h e r e f o re, [M oth e r] dida sk

for ano th er co nti nu a nc e in o rd e r t o o btain the te sti mon y o f M s. Ver ran; howe ver, tha t was de nied as we ll....[Mother] a rgues Ms. Ve rra n’s testimony
wo uldha ve ill us tr a te d th a t th e ther ape uti c vis itatio n w a s o nly c on du c te d w ith [Gra ndmother], ne ver [ Mother], w hich would prove the Depa rtment failed to p r o vide
rea sonable e fforts to assist [Mother] in complying with the permane ncy plan.

Unfortunately for Mother , even if Ms. Verr an had be en ca lled t o testify and her testimony had shown what Mother a sserts it would have , M o t her f ailed to exe rcise most of the visitations offere d to her. It defie s logic to assume that if visitations had been provide d to Mother by Soluti ons, rather

than by DCS as was done , that this would have made any diffe renc e in the outcome of the case given the fa ct that Mother c hose to not show up for many of her visitations.

Given our Le gislature’s c lear direc tive re g ar ding expediting contested pa renta l te rm inatio n p ro c e e din gs , th e fa c t that we are un able to r e vie w M oth e r’ s mo tio n f or c on tin ua nc e to determine what spec ific grounds wer e raised in the motion, and Mother’s admission in her brief that her c urre nt counsel had forty-f ive business days prior to trial to prepar e, we are unable to conc lude that the Juvenile Court abuse d its discretion when it denied Mother a continuanc e.
Next, we con s i d er whether the Juvenile Court er

red in a dmitti ng the permanenc y pla ns . M oth e r a

rg ue s in he r b ri e f o n ap peal th at it wa s e rr or to a dmi t th e tw o p e rm a ne nc y p la ns , wh ic h M oth e r d id n ot sig n, be c a us e the y c on sti tut e d he ars a y a s Mo the r “ did no t ma ke the state me nt, manifest an a doption of t he st atement, authorize anyone to make the statement for her or any of the oth e r e xc e pti on s u nd e r [Tenn

. R. Ev id . 8 03 ]. ” Th e Fir st Pe rm Pla n w a s r a tif

ie d b y th e Ju ve nil e Cou rt in S e pte mbe r o f 20 06 a nd wa s a dmi tte d a t tria l du ri ng the te sti mon y o f M s. Hi te , th e DC S c a se ma na ge r w ho pr e pa

re d th e Fir st P erm

Pla n. Mo the r d id n ot o bje c t to the int ro du c tio n o f the Fir st Perm Plan.-15- As this Court st ated in Grandstaff v. Hawks , Objections to the introduction of e vidence must be timely and specific

.
* * *
A party who inv ite s or wa ive s er ro r, or wh o fa ils to t ake re a so na ble ste ps to
cure an err or, is not entitled to relief on a ppeal. Failure to object [to] e vidence in a timely and specific fashion pre cludes taking issue on a p peal with the a dmission of the evidenc e. Grandstaff v. Hawks , 36 S.W.3d 482, 488 (Tenn. Ct. App. 2000) ( citations omitt ed).

As Mother ra ised no objection at trial to the introduc tion of the First P erm Plan, Mother is pre cluded fr om r a isi ng thi s is su e on app e a l.

The Second Perm Plan w as introduced during the testimony of Ms. Slocum. Mother raised a n objection base d upon hear say at trial t o t h e i n t ro d u cti on of the Sec ond Perm Plan. The Ju venil e Cou rt

a dmi tte d th e Se c on d Pe rm Pla n s ta tin g it

wa s d oin g s o “ be c a us e it w a s r a tif ie d in Court, and it was the P l an fo r t h e ch i ld....” Our r eview of the re cord on a

ppeal r evea ls that the Second Perm Plan wa s substantially sim ilar to the First Perm Plan, which wa s introduced without objection, particularly with rega rd to the ac tions and responsibilities expecte d of Mother.

As this Court st ated in De lap p v . P ra tt :

Issues re gar d i n g admi ssion of evidenc e in Tenne ssee a re r eviewe d for a

buse of discretion. Di c key v . M

c Cor d , 63 S.W.3d 714, 723 (Tenn. Ct. App. 2001). “ [T]rial
c ou rt s a re a c c or de d a

wi de deg re e of

la titud e in the ir

de te rm inatio n o f w he the r t o a d mi t o r e x c lu d e e v id e n c e , e v e n if s u c h e v id e n c e w o u ldbe relevant.” Id . Our Supreme Court discussed the a buse of discr etion standard in Eldridge v. Eldridge , stating:

Under

the abuse o f d iscretion standa rd, a tria l court’s ruling “will be upheld so long a s rea sonable minds can disa greeas to [the] propriety o f t h e decision made .” A tria l court abuse s its dis cre tion only when it “applie[ s] an incorrec t legal standar d, or re ache [s] a decision which is against logic or r easoning that c ause[ s] an injustice to the party complaining.” The abuse of discretion st andar d does not permit the appe llate court to substi tute its judgm ent f o r that of the tr ia l c ou rt

. Eldridge v. Eldridge , 42 S.W.3d 82, 85 (Tenn. 2001) (citations omitted).
Appellate c ourts ordinarily permit dis cre tionary decisions to stand when
rea sonable judicial m i n d s can dif fer conce rning their soundness. Ove rstreet v.-16-

Shoney’ s, Inc. , 4 S.W.3d 694, 709 (Tenn. Ct. App. 1999). Atrial court’ s dis c re tio na

ry de c isi on mus t ta

ke int o a c c ou nt app lic able la w a ndbe c on sis te nt w ith the fa cts befor e the c ourt. Id . When revie wing a discre tionary dec ision by the trial
c ou rt , th e “ app e llate c ou rt s sho uldbe gin wi th the pr e su mpt ion that th e de c isi on is
corr ect a nd should revie w t he evidence in the l ight most favor able to the dec ision.” Id

.
De lap p v . P ra tt , 152 S.W.3d 530, 538 (Tenn. Ct. App. 2004).

As the Second Perm Plan wa s substantially the same as the First Perm Plan, which
was a dmitted without obj ection, we find no abuse of discretion in the admission of the Second Perm Plan. Additionally, we are unconvince d that either of the perm anency plans qualifies a s hear say under Rule 801(c) of the Tenne ssee Rules of Evide nce. W hile Mother re fused to sign both of the perma nency pla ns, they are simil ar to a contra ct, and a s such were not offe red to prove the truth of the matter a sserted in them but rathe r solely to se t out the terms of the plan itself. We f ind no error in the Juvenile Court’s admission of the First Perm Plan or the Second Perm Plan.

We ne xt addre ss whe th e r

th eJ u venile Court er

red in finding that cle ar a nd convincing evidenc e existed to terminate Mother’ s pare ntal rights for abandon m ent. In pe rtinent part, Te nn. Cod e An n. § 3 6- 1- 11 3( g) (1 ) p ro vid e s: (g) I nitiation of termination of pare ntal or guar dianship rights may be base d upon any of the fo llo wi ng gr ou nd s: (1) Aba ndonment by the parent or guardian, as define d in § 36-1-102, ha s occur red;
Tenn. Code Ann. § 36- 1-113(g) (1) ( 2005). As pertinent to this issue, Tenn. Code Ann. § 36- 1-102 pr ov ide s: (1)( A) For purpose s of terminating th e par ental or gua rdian rights of pa

rent(s) or guardia n(s) of a

child to that c hild in order to ma ke that child available for a doption,

“ aba nd on me nt” me a ns that:

* * *
(iv) A pa rent or gua

rdian is incar cer ated at the time of the instit ution of an ac tion or proce eding to decla

re a child to be an abandone d child, or the pare nt or guardia n has been inc arc erated during all or part of t he four (4) months immediately prec eding the instit ution of such ac tion or proce eding, and either has willfully failed to visit or has willfully failed to support or has willfully failed to make r easona ble payments towa

rd the support of the child for four (4) consec utive months im mediately pre ceding suc h pare nt’s or guar dian’s inca rce ration, or the parent or guardian has e ngaged in c onduct prior to incar cer ation that exhibits a wanton disregar d for the welfa re of the child;....
Tenn. Code Ann. § 36- 1-102 (1) (A) ( 2005).-17- With rega rd to this issue, the Juve nile Court f ound and held that c lear

and convinc ing evidenc e existed:
that given [Mother ’s] lifestyle a nd conduct prior to her most rec ent incar cer ation, that she exhibited a

wanton disrega

rd for the welf are of her child, given t he fact she’ s had nineteen prior i ncar cer ations prior to the m ost rec ent one. Furthermore , that she had
a dr ug a dd ic tio n, wh ic h s he ha s a dmi tte d to the ps yc ho log ic a l e xa min e r, wh ic h is a wanton disrega

rd for the welf are of her child, and she a dmitted that her mother wa s essentially taking ca

re a nd raising her

child.

The e vidence does not preponde rate against the Juvenile Court’ s findings that clea r and convincing evidenc e existed to terminate Mother’ s pare ntal rights under Te nn. Code Ann. § 36-1- 113(g)( 1).

Next, we addres s whether the Juvenile Court er

red in finding that cle ar a nd
c on vin c ing e vid e nc e e xis te d to ter min a te Mo the r’ s par e nta l rig hts fo r fa ilu re to sub sta nti a lly c omp ly with the perma nency pla n. As pertinent to this issue, Tenn. Code Ann. § 36- 1-113(g) (2) pr ovides that p ar e n ta l rig h ts may b e te r mi n a te d u p o n c le ar a n d c o n v in c in g e v id e n c e th a t: “ T h e r e h a s b e en substantial noncomp l i an ce b y the par ent or gua rdian with the stateme nt of responsibilities in a perma nency plan or a pla n of ca re pur suant to the provisions of title 37, chapter 2, part 4....” Tenn. Code Ann. § 36-1- 113(g)( 2) (2005)

.

With rega rd t o this issue, the J uvenile C ourt found and held t hat clear a nd convincing
e vid e nc e e xis te d th a t: the Depa rtment has met the c lear

and convinc ing bur den of proof of the grounds for substantial noncompliance, by [ Mother], w ith the responsibiliti es in the Permane ncy Plan. The Permane ncy [P]lan w as adopted by this Court in Septe mber of 2006 and which [Mother ] re ceive d a copy. E ven though she re fused to s i g n i t on advice of
c ou n s e l , s h e d i d r e c e i v e a c o p y o f i t , k n e w t h a ti tr e q u i r e d h e r t o d o c e r t a i n t h i n gs , and she f ailed to do those things. She was to complete an Al cohol and Dr ug Assessment and f

ollow the rec ommendations. She was to complete a re hab progr am a ndpa rt ic ipate in a ft e rc are by a tte nd ing AA or NA me e tin gs . She did n’ t c omp le te
a re ha b p ro gr a m a ndthe re ’s no e vid e nc e tha t sh e a tte nd e d a ny AA or

NA me e tin gs

. She did not, and there ’s bee n no testimony that she submit t ed t o co u nseling at the Mental He alth Center. The re’ s been no te stimony t hat she ha d res o l v ed h er legal issues, and ac tually after this P erma nency Plan wa s put into effec t she adde d to her legal issues with f

urther incar cer ations. I further find that under the Permane ncy Plan sh e [w a s] re qu ir e d to ob ta in a ndma int a in e mpl oy me nt. Shewa s n ot a ble to d o th a t. She was wor

king for this Mr. Lande rs, but there has bee n no proof of wha t her a ctual pay was or pay stubs or bank acc ount rec ords. And further, she did not complete the pare nting assessment, and she w as out of jail for a period of five months, and during t h at t i m e s he only visited her c hild five times. And so there w as re ally no eff ort be ing pu t f

or th b y [ Mo the r] to s ub sta nti a lly c omp ly with or ev e n co mpl y a t a ll w ith the Permane ncy Plan, and the Court f inds that the re was ample evide nce pr esente d to prove that she substantially fa iled to comply with the Permanenc y Plan.-18- Mother ar gues, in part, that DCS failed to make reasona ble efforts t o assist her. A s this Court st ated in State of Tennessee, D epartment of Children’s Servic es v. S.M .D. :
The State “ must make rea sonable e ffor ts to prese rve a

family befor e see king to terminate parental rights.” In re: Jere my D. and Nathan D. , No. 01-A- 01-9510- JV- 00 47 9, 19 96 Te nn . App . L EX I S 29 2, a t ** 7- 8, 19 96 WL 25 74 95 , a t *3 (T e nn . Ct

. App. May 1 7 , 1996), no appl. perm. appeal filed . Howeve r, “[r]eunification of a family is a two-wa

y street, a nd the law doe s no t re q u i re D CS t o car ry the entire burden of this goa l.” In re: R.C.V. and O.V. , No. W2001-02102-COA-R3-JV, 2002 Tenn. App. L EXI S 811, at *39, 2002 WL 31730899, at *11 (Te nn. Ct. App. Nov. 18, 2002), no. appl. perm. appeal filed

. State of Tennessee, D epartment of C hildren’s Servic es v. S.M .D. , 200 S.W.3d 184, 197-98 (Te nn. Ct. App. 2006).

Th e e vid e nc e in the re c or d on ap pe a l show s th a t Mo the r f a ile d to fo llo w thr ou gh wi th the re commendations of the psychological assessment, failed to attend AA or NA mee tings, failed to o b t ain a job eve n though she had obtaine d employment in the past and c lear ly knew how to do
so , f a ile d to exe rc ise the ma

jority of the vis itatio ns of fe re d to he r, faile d to ke e p in tou c h w ith DC S, and c o n ti n u e d to e n g a g e in il le g a l a c ti v it ie s

. D CS w a s n o t r e q u ir e d to c arr y th e e n ti r e burden of attempting to reunite Mother w ith the Chil d, and it was ha mpere d in t h i s re s pect a s Mother wa s incar cer ated much of

the time due to Mother’ s own illegal ac tions. The evidenc e shows that Mother made little eff

ort to car ry her portion of the burde n toward r eunific at i o n

. B o t h case manage rs testified that Mother ha d not substantially complied wit h the permanenc y plan, and Mother admitted
a t tria l th a t sh e ha d n ot r e a lly trie d to c omp le te the pe rm a ne nc y p la n s ta tin g: I thought my mama was going to get her back anyway. Tha t ’s t h e whole re ason I
re a lly did n’ t - - I me a n, I d id w ha t I ha d to do bu t I did n’ t re a lly try, tr y as h arda s I could, because I thought Mama was ge tting her bac k. Mama told me she wa s getting her ba ck. Mama

had done e verything she wa s supposed to get her back so I thought she wa s getting her bac k.
By o rd e r enter e d A ug us t 1, 20 06 , th e Ju ve nil e Cou rt fo un d th a t r e a so na

ble e ff orts
wer e being made to preve nt the Child’s removal from the home. By order e ntere d September 14, 20 07 , th e Ju ve nil e Cou rt fo un d th a t D CS had m ade reas on able e ff orts t o r e un ite the Chi ld w ith Mothe r

. I n it s O r d e r

T e r mi n a ti n g Pa

r e n ta l R ig h ts e n te r e d J u n e 1 9 , 2 0 0 8 , th e J u v e n il e Co urt imp li c it ly f

o u n d th a t D CS ma d e r e a s o n ab le e f f o r ts to a s s is t M o th e r

. T h e e v id e n c e does not preponde rate against these f indings.

The e vidence does not preponde rate against t he Juvenile Court’s findings that clea r a ndc on vin c ing e vid e nc e e xis te d to te rm inate Mo the r’ s paren tal ri gh ts f or failu re to s ub sta nti a lly comply with the perma nency pla n.-19- We ne xt addre ss whe th e r

th eJ u venile Court er

red in finding that cle ar a nd convincing evidenc e existed to terminate Mother’s p arental rights on the ground of pe rsistent conditions. In pertinent part, Tenn. Code Ann. § 36-1-113( g)(3) provides that pare ntal rights may b e t erminated if c le ar a ndc on vin c ing e vid e nc e e xis ts that:
(3)( A) The child has bee n remove d from the home of the pa rent or gua

rdian by orde r of a c ourt for a

period of six (6) months and: (i ) T he c on dit ion s th a t le d to the c hil d’ s re mov a l or oth e r c on dit ion s th a t in all rea sonable probability would cause the child to be subjec ted to further abuse or
ne gle c t a ndthat, the re fo re , p re ve nt the c hil d’ s sa fe re turn to the c are of the pa re nt( s)
or gu ard ia n( s) , s til l pe rs ist ; (i i) Th e re is litt le lik e lih oo d tha t the se c on dit ion s will be re me die d a t a n e arl y date so that the c hild can be sa fely re turned to the parent(s) or guardia n(s) in the ne ar future; a nd (i ii) Th e c on tin ua tio n o f the pa re nt or gu ard ia n an d ch ild re la tio ns hip gr e a tly diminis hed the c hild’s chanc es of e arly integration into a safe , stable and pe rmane nt home.
Tenn. Code Ann. § 36- 1-113(g) (3) ( 2005).

With rega rd to this issue, the Juvenile Court found and held that clea r and c onvincing
e vid e nc e e xis te d th a t:

At the time this ch i l d was re moved by the De partment of Children’ s Services, the grandmother , who was the custodian of the c hild at the time, was i n jail. The mother...wa s in jail, and an aunt, who ha d just physical custody of t he child, did not ha ve le ga l c us tod y, wa s a rr e ste d f or a DU I fo rth off

e ns e

. An d s o th e re wa s a va lid bas i s for the child to be place d in the car e and c ustody of the Depa rtment of Chi ldr e n’ s Se rv ic e s.
The con d it io n s w h ic h le d to th a t r e mo v a l s ti ll e x is t, a n d th e r e ’ s b e e n no e vid e nc e that th e y’ ve be e n r e me die d, a ndgiv e n th e fa c t th a t th e mothe r i s st ill in j a il, there is lit tle likelihood the conditions would be remedie d at an early date. The Court believes, e ven upon her

rele ase in late June of 2008, that it would take [ Mother] at least a ye ar to wor

k a Perma nency Plan ( and the Court b el i ev es she would not be
succe ssful) and that would just mean that the child would be in custody for another twelve months, which would put her at almos t 32 months being in custody of foster
car e. And the Court f

inds that that’s unrea sonable a nd is not in t he best intere st of the child.

Th e Cou rt a lso fi nd s that the c on tin uatio n of a pa re nt/ chi ld re la tio ns hip be tw e e n [ Mo the r] a nd[the Chi ld] wo uld gr e a tly dim ini sh the c hil d’ s c ha nc e s o f e arl y int e gr a tio n in to a

sa fe , s ta ble a ndpe rm a ne nt h ome . Ba se d u po n th e te sti mon y o f a ll those involved, the child’s curre nt place ment is in her best interest. It is a stable and safe and permanent home, a nd the foster pare nts are willing to adopt. S o the Court-20-

find s th a t b y c le ar a n d c o n v in c in g e v id e n c e g r o u n d s e x is t f o r te r mi n a ti o n of [Mother’ s] rights based upon the persistent (sic) of conditions....

The evidenc e does not pr eponder ate against the Juvenile Court’s findings that clear and convinc ing
e vid e nc e e xis te d to te rm inate Mo the r’ s p are nta l r igh ts o n th e gr ou ndof pe rs ist e nt c on dit ion s. Finally, we addre s s whether the Juvenile Court er red in finding that it was in the Child’s best interest for Mother ’s par enta l ri g h t s t o be terminated. The Juve nile Court found and he ld tha t c le ar a ndc on vin c ing e vid e nc e e xis te d th a t:

it would not be safe at this t ime for t h e child to be re turned to the mother or her home. The Court finds that the mother has fa iled to ma

ke an adjustment in her life, a la st ing a dju stm e nt a t thi s tim e to a llo w fo r re un if ic a tio n. Th e Cou rt fi nd s that a
c ha ng e a t this t ime of

the c are take rs of

thi s c hil d w ou ld h a ve a de tr ime nta l, emotional, psychological e ffe ct upon the child bec ause she is attache d to her f oster pare nts. The Court has no doubt that thi s child loves her gr andmother a nd loves her mother, but that the child has found a safe and stable home, and the Court believes that’ s in the c hil d’ s b e st i nte re st.

* * *

Furthermore , the home whe re the child wo u ld be, if in the custody of the mother, is not a n appropriate home. Based upon prior history, ther e’s be en criminal activity around the child wh en s h e’ s b een in the custody of the mother, give n her drug use a nd other proble ms that have l ed t o her inc arc eration. So t he Court finds that by clea

r and c onvincing evidenc e that it is in the best interest of the child that the pare ntal rights of [Mother] be terminated.

Mother admitted at tria l that throughout the Child’s li fe, “ my mama a lways had
c us tod y b e c a us e I w a s in and ou t because I w a s o n d ru gs a ndI c ou ldn ’t , I wa s ju st, I w a s p re tty much, I would go to my mom’s to spend time w i t h [t h e C h ild] and lea ve.” Mothe r also stated at trial, “a ll I ask, is for visitation with [the Child]. I know I probably couldn’t gi ve her what they c an give her . I know they c an give he r more, more than I c an. The only thing I ask of the Court whatsoeve r is tha t I can ge t visit ation with her.” Mother’s a ctions and words de monstrate that she wants her pare ntal rights as to the Child, but no parental re sponsibili ties.

The e vidence does not preponde rate against t he Juvenile Court’s findings that clea r a ndc on vin c ing e vid e nc e e xis te d th a t it wa s in the Chi ld’ s b e st inte re st fo r Mothe r’ s p are nta l r igh ts to be terminate d.

As grounds for termination wer e proven by c lear and convinc ing evidence and cle ar and convinc ing evidence was pre sented that the te rmination of Mother’ s pare ntal rights was in the best interest of the Child, we aff irm the termination of Mother ’s par ental rights to the Child.-21- Conclusion

Th e jud gme nt o f the Ju ve nil e Cou rt te rm inatin g M oth e r’ s p are nta l r igh ts to the Chi ld is affirme d, and this cause is remande d to the Juvenile Court for c ollection of the c osts below. The costs on appea l are assessed a gainst the Appellant, V.N . and her surety, if a ny.

___________________________________ D. MICHAEL SWI NEY, JUDG E