                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                             Assigned on Briefs January 10, 2014

                           IN THE MATTER OF: CANDICE S.1

                  Appeal from the Juvenile Court for Williamson County
                          No. 31390   Sharon E. Guffee, Judge




            No. M2013-01750-COA-R3-PT - Filed February 12, 2014


Mother’s parental rights to her daughter were terminated on the grounds of abandonment by
failure to visit and failure to pay support, and persistence of conditions. Mother appeals,
asserting that the evidence in support of the grounds is not clear and convincing and that the
record does not show that termination of her rights would be in the child’s best interest.
Finding no error, we affirm the decision of the trial court.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,
P. J., M. S.,and F RANK G. C LEMENT, J., joined.

Karen D. Huddleston Johnson, Brentwood, Tennessee, for the appellant, Amanda Y.

Robert E. Cooper, Jr., Attorney General and Reporter, Jordan Scott, Assistant Attorney
General, for the appellee, Department of Children’s Services.

                                               OPINION

       Amanda Y. (“Mother”) is the mother of one child, Candice S. (“Candice”), born on
October 19, 2004. On February 14, 2011, the Tennessee Department of Children’s Services
(“DCS”) filed a dependency and neglect petition in the Williamson County Juvenile Court
alleging that Mother had been arrested for driving on a suspended license and simple
possession of drugs, that she was under investigation as a member of a crime ring that


        1
            This Court has a policy of protecting the identity of children in parental termination cases by
initializing the last names of the parties.
specialized in check fraud and identity theft, that she had tested positive for benzodiazepines
and opiates upon her arrest, and that Candice had been taken into DCS custody on February
12. The court entered a Protective Custody Order on February 14 and, following a hearing
on February 15, found probable cause to find Candice dependent and neglected and ordered
that she remain in the custody of DCS with Mother to have supervised visitation; an
adjudicatory hearing was set for March 15. Following the adjudicatory hearing, the court
entered an order providing that Candice remain in the custody of DCS and setting a hearing
on the permanency plan for April 16.

        The first permanency plan, with goals of “exit custody with kin” and “return to
parent” was ratified by order entered May 11. A second plan was prepared on January 25,
2012, and ratified on February 7; the goal of this plan was “return to parent” or “adoption.” 2
A third plan was prepared on November 5, 2012, and ratified on February 5, 2013; the goal
of this plan was also “return to parent” or “adoption.”

       DCS filed a petition to terminate Mother’s parental rights on December 28, 2012,
asserting abandonment by failure to visit or support, substantial non-compliance with the
permanency plan and persistence of conditions as grounds. Trial was held on April 22, May
8, and June 17-18, 2013. On July 24, 2013, the court entered an order terminating Mother’s
parental rights on the grounds of abandonment by failing to visit and support Candice and
persistence of conditions.3

        Mother appeals, stating the following issues:

        I. Whether there is clear and convincing evidence to support the termination
        of parental rights for abandonment for failure to support the child?
        II. Whether there is clear and convincing evidence to support the termination
        of parental rights for abandonment for willful failure to visit the child?
        III. Whether there is clear and convincing evidence to support the termination
        of parental rights for persistence of conditions?



        2
          Adoption was added as a goal due to Candice being in custody for nine months. Mother did not
agree with the goal of adoption.
        3
           The termination petition alleged that Bradley C., a resident of Indiana, was Candice’s father.
During the course of the proceedings, a separate proceeding to establish his paternity of Candice was filed;
Mother states in her brief on appeal that his paternity was established and that he voluntarily surrendered his
parental rights under separate orders from the trial court. The record before us shows that Father did not
participate in the termination of parental rights proceeding and his parental rights are not at issue in this
appeal.

                                                      2
       IV. Whether the State of Tennessee Department of Children’s Services
       provided reasonable efforts to the mother for the goal of reunification?
       V. Whether the termination of parental rights was in the best interest of the
       child?

                                       DISCUSSION

I. S TANDARD OF R EVIEW

        A parent has a fundamental right to the care, custody, and control of his or her child.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170,
174 (Tenn. 1996). Thus, the state may interfere with parental rights only if there is a
compelling state interest. Nash-Putnam, 921 S.W.2d at 174– 75 (citing Santosky v. Kramer,
455 U.S. 745 (1982)). Terminating a person’s parental rights “has the legal effect of
reducing the parent to the role of a complete stranger.” In re W.B., IV., No. M2004-00999-
COA-R3-PT, 2005 WL 1021618, *6 (Tenn. Ct. App. Apr. 29, 2005). Pursuant to Tenn.
Code Ann. § 36-1-113(h)(1), “[a]n order terminating parental rights shall have the effect of
severing forever all legal rights and obligations of the parent or guardian of the child against
whom the order of termination is entered and of the child who is the subject of the petition
to that parent or guardian.”

        Our termination statues identify “those situations in which the state’s interest in the
welfare of a child justifies interference with a parent’s constitutional rights by setting forth
grounds on which termination proceedings can be brought.” In re W.B., 2005 WL 1021618,
at *7 (citing Tenn. Code Ann. § 36-1-113(g)). To support the termination of parental rights,
petitioners must prove both the existence of one of the statutory grounds for termination and
that termination is in the child’s best interest. In re D.L.B., 118 S.W.3d 360, 367 (Tenn.
2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002); Tenn. Code Ann. § 36-1-113(c).

        Because of the fundamental nature of the parent’s rights and the grave consequences
of the termination of those rights, courts must require a higher standard of proof in deciding
termination cases. Santosky, 455 U.S. at 769; Matter of M.W.A., Jr., 980 S.W.2d 620, 622
(Tenn. Ct. App. 1998). Thus, both the grounds for termination and the best interest inquiry
must be established by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c)(1);
In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence “establishes that the truth
of the facts asserted is highly probable . . . and eliminates any serious or substantial doubt
about correctness of the conclusions drawn from the evidence.” In re M.J.B., 140 S.W.3d
643, 653 (Tenn. Ct. App. 2004). Such evidence “produces in a fact-finder’s mind a firm
belief or conviction regarding the truth of the facts sought to be established.” Id. at 653.



                                               3
       In light of the heightened standard of proof in these cases, a reviewing court must
adapt the customary standard of review set forth by Tenn. R. App. P. 13(d). In re M.J.B., 140
S.W.3d at 654. As to the court’s findings of fact, our review is de novo with a presumption
of correctness unless the evidence preponderates otherwise, in accordance with Tenn. R.
App. P. 13(d). Id. We must then determine whether the facts, as found by the trial court or
as supported by the preponderance of the evidence, clearly and convincingly establish the
elements necessary to terminate parental rights. Id.

II. ABANDONMENT

       Tenn. Code Ann. § 36-1-113(g)(1) provides that abandonment, as defined at Tenn.
Code Ann. § 36-1-102, is a ground to terminate parental rights; the latter statute provides in
pertinent part:

       (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.

Tenn . Code Ann. § 36-1-102. In In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005), the
court discussed willfulness in the context of termination cases:

       The concept of “willfulness” is at the core of the statutory definition of
       abandonment. A parent cannot be found to have abandoned a child under
       Tenn. Code Ann. § 36-1-102(1)(A)(i) unless the parent has either “willfully”
       failed to visit or “willfully” failed to support the child for a period of four
       consecutive months. . . . In the statutes governing the termination of parental
       rights, “willfulness” does not require the same standard of culpability as is
       required by the penal code. Nor does it require malevolence or ill will.
       Willful conduct consists of acts or failures to act that are intentional or
       voluntary rather than accidental or inadvertent. Conduct is “willful” if it is the
       product of free will rather than coercion. Thus, a person acts “willfully” if he
       or she is a free agent, knows what he or she is doing, and intends to do what
       he or she is doing.

                                               4
               Failure to visit or support a child is “willful” when a person is aware of
       his or her duty to visit or support, has the capacity to do so, makes no attempt
       to do so, and has no justifiable excuse for not doing so. Failure to visit or to
       support is not excused by another person’s conduct unless the conduct actually
       prevents the person with the obligation from performing his or her duty . . . or
       amounts to a significant restraint of or interference with the parent’s efforts to
       support or develop a relationship with the child. The parental duty of
       visitation is separate and distinct from the parental duty of support. Thus,
       attempts by others to frustrate or impede a parent’s visitation do not provide
       justification for the parent’s failure to support the child financially.

       The willfulness of particular conduct depends upon the actor’s intent. Intent
       is seldom capable of direct proof, and triers-of-fact lack the ability to peer into
       a person’s mind to assess intentions or motivations. Accordingly, triers-of-fact
       must infer intent from the circumstantial evidence, including a person’s actions
       or conduct.

Id. at 863–64 (citations and footnotes omitted).

       A. A BANDONMENT BY F AILURE TO S UPPORT4

      Mother acknowledges that she did not make any child support payments during the
four months preceding the filing of the petition but contends that she did not willfully fail to
pay support because she was not working and, thereby, did not have the ability to pay
support.

        The trial court made the following findings relative to the willfulness of Mother’s
failure to pay support:

              Mother admitted in her testimony she was aware of the duty to support
       and was unsure whether she was paying child support while working at Kmart
       in Alabama during the Christmas season 2011-2012. Mother never reported
       to DCS she was unable to work and did report the jobs she had during the
       course of this case but never paid child support. Her caseworker reminded her
       to pay child support when they discussed the action steps on the Permanency
       Plans over the phone. DCS testified Mother was not consistent in bringing
       food and toys to the visits with the child.


       4
         Mother’s support obligation was $64.76 per week, calculated in accordance with the Tennessee
Child Support Guidelines.

                                                 5
       ***
               The fact that Mother was able to provide financial support since being
       released from jail in 2011 is shown through her ability to obtain a job when she
       wants to. Since the termination petition has been filed, Mother has been
       consistently employed and paying support. The Court finds Mother’s
       credibility to be lacking and she blames everyone else for matters that clearly
       are/were in her control. She blames her felony conviction on her inability to
       obtain employment and transportation issues. The Court simply does not find
       these to be justifiable excuses for not paying support and clearly while Mother
       was working in July of 2012 when the second Perm Plan was ratified . . . ,
       Mother was not paying child support.

              One of the reasons Mother cites for moving to Knoxville in the
       August/September of 2012 is the availability of public transportation but she
       does not obtain a job until the Petition is filed in December 2012. Mother’s
       actions are clearly willful and intentional.

        The court was in a unique position to observe Mother and to assess her credibility and
summarized Mother’s testimony in great detail in holding that Mother’s failure was willful.
We have reviewed the evidence as well in the context of Mother’s argument and, having
thoroughly reviewed the record, conclude that the evidence does not preponderate against the
trial court’s extensive and detailed findings and the holding that the failure to pay support
was willful is fully supported by the evidence.

       B. F AILURE TO V ISIT

       Mother contends that the evidence does not clearly and convincingly support the
determination that she willfully failed to visit Candice. She asserts that there was
miscommunication with the DCS representatives regarding her efforts to exercise visitation,
that she had transportation needs which were not met by DCS, and that she spoke with
Candice by phone weekly.

       The trial court made the following finding relative to Mother’s failure to visit:

             Likewise the Court finds the Mother failed to visit the child for a period
       of four months preceding the filing of the termination petition (August,
       September, October, November, and most of December). The Court finds it
       more than coincidental that Mother was to submit to a drug screen during this
       time period prior to her visits. She tested positive during the home visit in
       Knoxville. She essentially refused a drug screen when she hung up on Ms.

                                              6
       Lee after the missed October visit. Her excuse that she thought phone visits
       constituted a visit is simply not plausible based on the amount of notice
       Mother had through her DCS caseworker and court hearings. Again, the Court
       finds her credibility to be minimal at best blaming everything on the
       Department when DCS clearly had established a simple protocol for Mother
       to follow. Since the termination petition has been filed, Mother has
       miraculously been able to visit every month AND pay for it herself.

        Mother does not dispute the court’s findings or cite proof to the contrary. We have
reviewed the record, particularly the conflicting testimony of DCS caseworker Teara Lee and
Mother, once again giving great deference to the court’s finding that Mother was not
credible. The evidence does not preponderate against the court’s findings and its observation
that the reasons Mother gave for not exercising visitation in person were not plausible. The
evidence clearly and convincingly supports the court’s holding that Mother’s failure to visit
was willful.

III. P ERSISTENCE OF C ONDITIONS

       Parental rights may be terminated on the basis of “persistence of conditions” as
defined by Tenn. Code Ann. § 36-1-113(g)(3)(A) when:

       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;

A termination proceeding based on the persistence of conditions ground requires a finding
by clear and convincing evidence of all three statutory factors. In re Valentine, 79 S.W.3d
at 549.

                                              7
       In holding that termination on the ground of persistence of conditions was shown by
the evidence, the court summarized the proof and stated:

              The Department developed not one but three permanency plans over the
      course of two years that all addressed this issue and more. After repeated
      efforts by the Department to assist Mother with the tasks, no progress was
      made until the Petition for Termination of Parental Rights was filed. DCS
      provided supervised and therapeutic visitation, a parenting assessment for
      Mother, drug screens, transportation, hotel, and case management through the
      family services worker. Mother was given the opportunity for in-patient
      substance abuse treatment and she refused by leaving the facility.

             Although Mother has made some progress since January 2013 with new
      housing, a job and school, her living situation is still temporary as she is using
      student loans to pay her living expenses. Those funds are suspect as she is
      currently on academic probation. Her rent is paid through July 2013 but after
      that she is once again in the same unknown circumstances she has been in
      throughout the life of this case.

              Mother agreed to a finding of dependency and neglect at the
      adjudication of the case. She knew one of the priority outcomes that DCS
      identified from the very beginning was safe and stable housing. “Parents must
      take steps to prevent the permanent removal of their children in cases . . . .
      DCS is not required to do everything for the parent” (In Re T.M.D.Y. 2008
      Tenn. App. Lexis 210).

             Mother voluntarily chose to move to Alabama after her incarceration
      in Williamson County in 2011 for family support. Her testimony at trial was
      she had little family support in Alabama so she decided to voluntarily move to
      Knoxville where she first said she had friends and support. Later in her
      testimony she admitted she did not have any support system in Knoxville.

              The Court also finds i[t] very disturbing that Mother is continuing to
      visit emergency rooms to obtain narcotic pain medication with a known history
      of substance abuse.

              Additionally, the Court finds it equally disturbing that Mother has the
      ability and resources to pack up and move to a city further away from her
      daughter, arrange financial support to start college, get a job and not put those
      same resources toward reuniting with her daughter. It is clear to the Court

                                              8
       Mother has always put her needs above her child’s as evidenced in Dr.
       Kaforey’s parenting assessment in December 2012 . . . . “When Amanda was
       released from jail, instead of finding housing and work in Nashville or the
       surrounding area, she went to Alabama and then to Knoxville because of
       comfort. She moved away from her daughter and her chance to establish
       consistent visitations. It has only been recent(ly) that she got a job and CM
       Lee reports Amanda still struggles with a consistent place to stay.”
       ***
               Despite Mother’s attorney impressively advocating for her, Mother’s
       attempts at rehabilitation have come much too late. As in In Re: T.M.D.Y.,
       “based upon mother’s history of her failure to follow through with having a
       safe, stable and appropriate placement for the child, there is little likelihood
       she will continue to maintain a safe, stable and appropriate placement for the
       child, there is little likelihood she will continue to maintain a sound
       environment free of dependency and neglect of the child.” DCS has proven
       this ground by clear and convincing evidence.

        Much of Mother’s argument is directed toward efforts she made following the filing
of the petition and immediately prior to trial to improve her living circumstances; she does
not seriously contest the trial court’s factual findings or cite to contrary evidence. The
evidence shows that in the two years that Candice had been in DCS custody, Mother failed
to remedy the conditions which led to her removal. The permanency plans identified specific
areas of concern relative to the conditions and DCS offered Mother assistance in addressing
those conditions; DCS is not, however, a substitute for Mother’s own initiative. Mother’s
situation did not appreciably change and showed no realistic prospect that it would change.
The evidence clearly and convincingly supports the termination of Mother’s rights on the
ground of persistence of conditions.

IV. R EASONABLE E FFORTS

       Mother contends that DCS did not provide reasonable efforts to assist her in
reunifying with Candice. She specifically complains that DCS did not assist her in obtaining
housing, parenting education, or employment while she was living in Alabama or when she
relocated to Knoxville.

       Reasonable efforts are defined by statute as “the exercise of reasonable care and
diligence by the department to provide services related to meeting the needs of the child and
the family.” Tenn. Code Ann. § 37-1-166(g)(1). The factors the courts are to use to
determine reasonableness include:


                                              9
       (1) the reasons for separating the parents from their children, (2) the parents’
       physical and mental abilities, (3) the resources available to the parents, (4) the
       parents’ efforts to remedy the conditions that required the removal of the
       children, (5) the resources available to the Department, (6) the duration and
       extent of the parents’ efforts to address the problems that caused the children’s
       removal, and (7) the closeness of the fit between the conditions that led to the
       initial removal of the children, the requirements of the permanency plan, and
       the Department’s efforts.

In re Tiffany B., 228 S.W.3d at 148, 158--59 (citing In re Giorgianna H., 205 S.W.3d 508,
519 (Tenn. Ct. App. 2006)) (footnote omitted). While the Department does not have to exert
herculean efforts, it must do more than “rely on parents to facilitate their own rehabilitation.”
In re A. R., No. M2007-00618-COA-R3-PT, 2007 WL 4357837, at *5 (Tenn. Ct. App. Dec.
13, 2007) (citing In re M. B., No. M2006-02063-COA-R3-PT, 2007 WL 1034676, at *5
(Tenn. Ct. App. Mar. 30, 2007)).

        DCS’ responsibilities were set forth in the permanency plans; the record shows that
Mother was present in person or by phone when each plan was developed and that, on the
plans prepared when Mother was present in person, she checked “yes” to the statement “I
agree with the permanency plan.” To the extent she had concerns about DCS’ efforts, she
failed to express them when given the opportunity. As noted earlier, the trial court detailed
in the final order efforts DCS expended to assist Mother in implementing the permanency
plans; Mother does not contest those findings or cite to contrary evidence. The testimony
and other evidence pertinent to this issue clearly and convincingly shows that DCS provided
reasonable efforts to assist Mother.

V. B EST I NTEREST

        Once a ground for termination has been proven by clear and convincing evidence, the
trial court must then determine whether it is in the best interest of the child for the parent’s
rights to be terminated, again using the clear and convincing evidence standard. The
Legislature has set out a list of factors at Tenn. Code Ann. § 36-1-113(i) for the courts to
follow in determining the child’s best interest.5 The list of factors is not exhaustive, and the

       5
           The factors at Tenn. Code Ann. § 36-1-113(i) are:

       (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

                                                     10
statute does not require every factor to appear before a court can find that termination is in
a child’s best interest. See In re S.L.A., 223 S.W.3d 295, 301 (Tenn. Ct. App. 2006) (citing
State of TN Dep’t of Children’s Servs. v. T.S.W., No. M2001-01735-COA-R3-CV, 2002 WL
970434, at *3 (Tenn. Ct. App. May 10, 2002); In re I.C.G., No. E2006-00746-COA-R3-PT,
2006 WL 3077510, at *4 (Tenn. Ct. App. Oct. 31, 2006)).

       The trial court based its holding that termination of Mother’s rights was in Candice’s
best interest on statutory factors 1, 2, 4 and 5.6 In her brief, Mother cites to evidence


       does not reasonably appear possible;
       (3) Whether the parent or guardian has maintained regular visitation or other contact with
       the child;
       (4) Whether a meaningful relationship has otherwise been established between the parent
       or guardian and the child;
       (5) The effect a change of caretakers and physical environment is likely to have on the
       child’s emotional, psychological and medical condition;
       (6) Whether the parent or guardian, or other person residing with the parent or guardian, has
       shown brutality, physical, sexual, emotional or psychological abuse, or neglect toward the
       child, or another child or adult in the family or household;
       (7) Whether the physical environment of the parent’s or guardian’s home is healthy and safe,
       whether there is criminal activity in the home, or whether there is such use of alcohol,
       controlled substances or controlled substance analogues 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.
       6
           The court held:

       1) Mother has not made such an adjustment of her circumstances, conduct, or conditions as
       to make it safe and in the child’s best interest to be in the Mother’s home. As stated above,
       throughout the course of this case Mother has not had stable housing or income. It has not
       been until the last few months that Mother’s circumstances have somewhat improved but
       the Court considers this temporary.

       2) Mother has failed to effect a lasting adjustment despite reasonable efforts by the
       Department of Children’s Services, counseling, parenting classes x three, Kid’s First
       therapeutic visitation, and it has been for such a duration of time that a lasting adjustment
       does not reasonably appear possible.

       4) Mother has not established a meaningful relationship with the child despite regular
       supervised visits for the last five months. The child clearly does not wish to speak to
       Mother on a regular basis and has not throughout these proceedings. While it is certain that

                                                    11
pertinent to other factors as well as evidence which she contends conflicts with that relied
upon by the court.

       We have addressed many of the matters relied upon by Mother in support of her
insistence that termination of her rights is not in Candice’s best interest in our discussion in
which we affirmed the findings of the grounds for termination. For the same reasons, we
hold that they support the holding that termination of Mother’s rights is in Candice’s best
interest.

        The evidence does not preponderate against the court’s findings and, considering the
record as a whole, particularly including the court’s credibility findings relative to Mother
and its related consideration that any improvement shown by Mother was temporary, clearly
and convincingly shows that termination of Mother’s rights is in Candice’s best interest.

                                           CONCLUSION

      For the foregoing reasons, we affirm the decision of the trial court terminating
Mother’s parental rights.




                                                          ________________________________
                                                          RICHARD H. DINKINS, JUDGE




       visits in a DCS office are not an optimal environment, Mother made little to no efforts to
       improve this arrangement.

       5) A change of caretakers and physical environment is likely to be detrimental to the child
       at this time. The child was in the same foster home for over two years. She recently has
       been placed in a preadoptive home where it is clear the child has bonded with her foster
       parents. (She still sees her former foster mother as they are all friends). Her current family
       wants to adopt her and obviously care and love her very much. DCS testified the child has
       a strong bond with her foster father, calls him “daddy” and needs to be released from the
       stigma of foster care.

                                                    12
