                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                             Assigned on Briefs January 5, 2004

         STATE OF TENNESSEE, DEPARTMENT OF CHILDREN’S
          SERVICES v. BARBARA MICHELLE DAVIDSON, ET AL.

                         Appeal from the Juvenile Court for White County
                        No. JU-1501    Sammie E. Benningfield, Jr., Judge



                     No. M2003-02601-COA-R3-PT - Filed February 2, 2004


The Juvenile Court of White County terminated the parental rights of the natural parents of two
young girls. The Father suffered judgment by default and did not appeal. Parental rights of the
Mother were terminated after trial on the merits and she appeals. We affirm the judgment of the trial
court.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, and FRANK
G. CLEMENT , JR., JJ., joined.

Robert Steven Randolph, Cookeville, Tennessee, for the appellant, Barbara Michelle Davidson.

Eddie Davidson, Lakeside, Michigan, Pro Se.

Sharon Patricia Data, Guardian Ad Litem, Sparta, Tennessee, Pro Se.

Paul G. Summers, Attorney General & Reporter; Juan G. Villasenor, Assistant Attorney General;
Anne Austin, Cookeville, Tennessee, for the appellee, Tennessee Department of Children’s Services.

                                              OPINION

        The minor child, A.T.D., was born to Barbara Michelle Davidson and Eddie Gene Davidson
on April 12, 1996, prior to their marriage. The minor child, L.N.D., was born to them April 28,
1998, subsequent to their marriage. Eddie Gene Davidson does not contest termination of his
parental rights and has not appealed. Barbara Michelle Davidson does not seriously contest grounds
for termination of her parental rights but focuses her appeal instead upon the finding of the trial court
that termination of her parental rights was in the best interest of the minor children. Careful review
of the record indicates that she has no substantial basis for contesting the finding of the trial court
that grounds for termination of her parental rights were established by clear and convincing evidence.

       The conditions that brought about the removal of the children from the custody of Michelle
Davidson and their placement in the custody of DCS are best described in the Protective Custody
Order entered on the date of such removal, January 22, 2002.

                It appearing to the Court from the sworn allegations of the Petition filed in the
       above-styled matter that there is probable cause to believe that the above-named are
       dependent and neglected children in that the mother of the above-named children,
       Michelle Davidson, was charged with Reckless Endangerment, Possession of
       Schedule II drugs and Criminal Intent to Manufacture methamphetamines. The
       officers found items consistent with the manufacture of methamphetamine in the
       home where the said minor children were residing with their mother and Mr. Brent
       Tolbert, a convicted felon. The Department originally went out to the home in the
       process of completing an investigation on a referral received by the DCS alleging that
       the said minor children were often left unsupervised while their mother, Ms.
       Davidson slept throughout the day and that the children were sent outside to collect
       paper to burn for heat and that the home was without electricity. In addition, the
       allegations included concern that Ms. Davidson was using illegal drugs. The DCS
       requested an officer escort in an effort to ensure the Case Manager’s safety and went
       out to visit the home. DCS determined upon entering the home that there was
       electricity, but a lack of plumbing. Ms. Davidson did admit to smoking meth two
       days prior with some friends. The Case Manager observed several mason jars in the
       cabinets and received inconsistent answers as to the reason and purpose for the jars.
       The Case Manager also observed a mason jar, half-full of acetone, which Ms.
       Davidson stated was used to clean paint off of the brushes. There was an additional,
       smaller jar that also contained acetone, Ms. Davidson stated that the smaller jar made
       the acetone easier to pour. The Case Manager also observed a bottle of butane in the
       living room and several batteries that looked like car batteries throughout the house.
       Of further concern, were the guns in the home, one loaded and possibly 15
       accessible to the children. The DCS, after completing the inspection of the home
       prepared a voluntary plan of action with Ms. Davidson; however, the officers later
       obtained a search warrant and after completing their investigation of the home,
       charged with Ms. Davidson as mentioned above. (sic) Ms. Davidson was placed in
       jail on a $30,000 bond and the children have been taken into the custody of the DCS
       and placed with relatives pending the Preliminary Hearing. The father of the above-
       named children, Eddie Davidson, was contacted regarding the removal of the
       children, but he stated that he would be unable to take custody of the children and
       that he had approximately 23 days in jail that he needed to serve. That the above-
       named children are subjected to an immediate threat to the children’s health and
       safety to the extent that delay for a hearing would be likely to result in severe or
       irreparable harm and there is no less drastic alternative to removal available which


                                                  -2-
       could reasonably and adequately protect the child’s health and safety pending a
       preliminary hearing; that it is contrary to [L.’s] welfare at this time to remain in the
       care, custody, or control of her parent due to her mother being currently incarcerated
       on charges of Reckless endangerment, possession of Schedule II drugs, and Criminal
       Intent to Manufacture Methamphetamine. In addition, Ms. Davidson admitted to
       smoking meth two days prior to the DCS investigation. There were components
       commonly associated with the manufacture of methamphetamine found in the home
       where the said minor child lives with her mother and therefore a concern that there
       may have been a meth lab in the home which can be explosive and toxic,
       endangering the child. It is also contrary to [A.D.’s] welfare at this time to remain
       in the care, custody, or control of her parent due to [reasons identical to those listed
       above for [L.D.]. It is contrary to the welfare of [A.] and [L.] to be placed in the
       custody of their father because he is without a permanent home and states that he
       cannot care for the children. The lack of continued reasonable efforts in the above-
       styled matter is reasonable due to the mother currently being incarcerated and also
       being charged with the charges listed above and the components commonly
       associated with the manufacture of meth being found in the home, as well as Ms.
       Davidson’s admitted meth usage and the father’s inability and/or lack of desire to
       care for his children.

These dangerous conditions undisputed by the Mother, and the association with the felon, Brent
Tolbert, led to the children’s removal and the eventual termination of her parental rights.

PERMANENCY PLANS

        The first Permanency Plan, entered into on February 11, 2002, was an ambitious one with
the permanency goal being to return the children to their Mother. This first Permanency Plan
observed that “Mrs. Davidson appears to love her children and want what is best for them.” It
further appeared that Mrs. Davidson was in good physical health, appeared to bond with the children,
and that the children bonded with each other and were likewise in good physical health. The desired
outcome was “Mrs. Davidson will successfully complete A & D treatment and will refrain from
using illegal drugs. Mrs. Davidson will not associate with others who use illegal drugs. Mrs.
Davidson will have random drug screenings.” The expected achievement date under this plan was
July 19, 2002.

       On April 18, 2002, both Mother and Father attended the first review of the Permanency Plan.
While the permanency goal of returning the children to their home remained the goal of the plan, it
was found that the children needed to remain in foster care, and that, while the children had
completed all tasks assigned to them in the Permanency Plan, no task assigned to the Mother had
been completed and that their progress was marginal. The periodic review summary listed the
following as barriers to achieving the desired outcomes of the [L.D.’s] parenting plan: problems
noted were “Mother’s pending criminal charges, lack of housing, employment - has not completed



                                                 -3-
parenting classes.” It was further observed that both Mr. and Mrs. Davidson needed to make “drastic
strides for their children.” The next review date was set for October 18, 2002.

       Much happened between the original Permanency Plan of February 11, 2002 and January 13,
2003 where a revised parenting plan was adopted. While the record indicates persistent and near
exhaustive efforts by DCS to assist Mrs. Davidson, her record indicates continued drug abuse,
apparently successful efforts to defeat drug testing by a process of consuming large quantities of
water prior to the test, continuing deception as to her chronic use of methamphetamine, and
continued association with drug users including the very person involved with her in the
methamphetamine operation in the first place. Her continued drug use resulted in revocation of her
probation, and she was returned to jail on July 16, 2002 and remained there until March 19, 2003.

        On January 13, 2003, the revised Permanency Plan was adopted with dual goals of returning
the children to the parent and alternatively adoption. The reason for the change in permanency goal
was lack of compliance by the parent with the first Permanency Plan. On February 26, 2003, DCS
filed a Petition to terminate the parental rights of both the Father and the Mother on the basis of
abandonment, nonsupport, and failure to comply with Permanency Plan.

         The termination hearing was held May 13, 2003, with case worker Jennifer Forrester
testifying in conformity with her final Quarterly Progress Report of April 17, 2003, wherein she
observed:

       Ms. Davidson was released from the White County Jail on 3/19/2003. Ms. Davidson
       obtained an alcohol and drug assessment on 3/31/03, and it was recommended that
       she attend intensive outpatient treatment for 8 weeks. Ms. Davidson was supposed
       to begin these classes on 4/1/03, however, she stated that her car had burned. On
       4/12/03, Ms. Davidson stated that she would begin her alcohol and drug treatment
       program at the Wellness Center in Livingston, and that she had found a ride to the
       classes. Ms. Davidson completed a parenting assessment while she was incarcerated,
       and she is receiving parenting classes in her home at this time. Ms. Davidson is
       living with her sister in law in Livingston. Ms. Davidson needs to complete her
       alcohol and drug treatment. Ms. Davidson needs to obtain employment. Ms.
       Davidson has continued to associate with persons known for drug use, despite the
       requirement on her permanency plan that she not associate with persons convicted
       of drug offenses or known drug users.

         At the hearing of May 13, 2003, after 16 months of on-going deception, Ms. Davidson
testified:

               Q.      Mrs. Davidson, if I understand your testimony, you are saying that
       prior to the removal of your children and up through your incarceration in July of
       2002 that you were using up to a gram of methamphetamine every day?
               A.      Yes, ma’am.


                                                -4-
        Q.     And you got the methamphetamine from Brent Tolbert?
        A.     I would rather not answer that.
        Q.     I would ask the Court to order her to answer.
        THE COURT: Answer the question.
        A.     Yes, ma’am.
        MR. AUSTIN: Brent Tolbert actually cooked and what I would call
manufacture methamphetamine. Correct?
        A.     Yes, ma’am.
        Q.     Just prior and on January 22nd . . . Well, actually I think it was the
19th that they were actually placed in foster care, but in January of 2002 when the
children were placed in foster care, the children and you were in the home with him
while he was manufacturing methamphetamine, weren’t you?
        A.     No. My kids stayed at my father’s most of the time and I would take
them with me every now and then.
        Q.     You took them to the home where he cooked meth? Right?
        A.     Every now and then, yes.
        Q.     Well, basically you didn’t do anything to comply with the permanency
plan in February or the first of March. It wasn’t until April that you started doing
anything. Isn’t that correct?
        A.     Yes, ma’am.
        Q.     You went for an A & D assessment in April of 2002, didn’t you?
        A.     Yes, ma’am.
        Q.     And you told the person who did the assessment that you had only
used methamphetamine one (1) time. Isn’t that correct?
        A.     Yes, ma’am.
        Q.     And because you lied to her, you were scheduled for low intensity out
patient treatment. Isn’t that correct?
        A.     Yes, ma’am.
        Q.     And you didn’t complete that treatment, did you?
        A.     No.
        Q.     You were using the whole time you were in that treatment, weren’t
you?
        A.     Yes, ma’am.
        Q.     You were passing all the drug screens that entire time up until June
and July of 2002. Isn’t that correct?
        A.     Yes, ma’am.
        Q.     Did you use something to pass those drug screens while you were
using?
        A.     No. I just drank a lot of water.
        Q.     But you figured out a way that you could beat the urine drug screens
and it wouldn’t show that you were using meth when you actually were using it.
Correct?
        A.     Yes, ma’am.


                                        -5-
                Q.     Since you were released from jail on March 19, 2003, you have
       admitted to Ms. Forrester taking a Hydrocodone pill that was not prescribed to you.
       Correct?
                A.     Yes, ma’am.
                Q.     And you know that is illegal, don’t you?
                A.     Yes, ma’am.
                Q.     And you know that that is an abuse of an addictive drug, don’t you?
                A.     Yes, ma’am. I had a bad toothache.
                Q.     That happened in March of 2003. Correct?
                A.     Yes, ma’am.
                Q.     So, when you testified earlier that the last time you had used an illegal
       drug was August 29, 2002, that is not correct. The last time was March of 2003.
       Correct?
                A.     Yes, since you put it that way.
                Q.     Your ex sister-in-law Mrs. White, they have a small home, don’t they?
                A.     Three (3) bedrooms.
                Q.     Three (3) bedrooms. They have four (4) kids. Correct?
                A.     Five (5).
                Q.     Five (5) kids who live there in the home with them?
                A.     Two (2) of them goes to their mother every other week.
                Q.     Okay. But there are five (5) kids living in that home and your ex
       sister-in-law and her husband. So, that is seven (7) people living in the home without
       you there. Correct?
                A.     Uh-huh.
                Q.     In just three (3) bedrooms?
                A.     They are building on. They have almost got it finished.
                Q.     Are they building on for you?
                A.     No.
                Q.     Because you don’t plan to continue living there, do you?
                A.     No.

         As for the Mother’s continued association with known drug users and felons Mrs. Forrester
testified without dispute:

              Q.     Since her release from jail in March of 2003, have you had
       conversations with her regarding people that she is associating with?
              A.     Yes, I have.
              Q.     Okay. Tell us about those conversations please.
              A.     When Mrs. Davidson was in jail, she stated that she had a pen pal who
       was also incarcerated in another county. I advised Mrs. Davidson that her
       permanency plan stated that she was not to associate with known drug users.
              Q.     Let me interrupt. Is this pen pal in Mrs. Davidson’s opinion a drug
       user?


                                                 -6-
               A.     Yes.
               Q.     Okay. Go ahead.
               A.     When she was out of jail, she told me on a few occasions that she was
       seeing him and that he was coming by to visit her and that they were having
       conversations. I advised her again that she was not to associate with known drug
       users, and she stated that they were just friends. However, she was stating that he
       was taking her to meet his grandmother and he was driving her around on the
       weekends.

       So it is that the record in this case shows, not by just clear and convincing evidence, but by
evidence that is essentially undisputed that:
1.     The children were initially taken from Mrs. Davidson in a home without plumbing that was
       primarily dedicated to meth manufacture and use.
2.     Throughout the period affected by the first Permanency Plan, while Jennifer Forrester of
       DCS was doing everything reasonable to facilitate the Mother’s visitation with the children,
       the mother continued to consume daily doses of methamphetamine and continued to deny
       such usage.
3.     Her continued use of drugs resulted in revocation of her probation and her return to jail.
4.     After her release from jail she continued her association with known drug users.
5.     Mrs. Davidson has paid nothing toward the support of the children since the time they were
       removed from her custody in January of 2002.

        In its final order terminating the parental rights of Michelle Davidson, the trial court found
that clear and convincing evidence had established:

               Barbara Michelle Mabe Davidson has not contributed to the support of the
       children since children were placed in Petitioner’s custody on January 22, 2001. She
       has not support[ed] her children in any meaningful way. During the times she was
       employed, she did not contribute any of the money she earned towards the support
       of her children.
               Barbara Michelle Mabe Davidson was advised on February 14, 2002 and
       January 13, 2003 that willful failure to visit or willful failure to contribute to the
       support of the children was grounds for termination of parental rights.

               ....

                The Defendants Barbara Michelle Mabe Davidson and Eddie Gene Davidson
       have therefore abandoned [A.T.D.] and [L.N.D.] in that they have willfully failed to
       visit and/or willfully failed to contribute to the support or make reasonable payments
       towards the support of said children for more than four (4) consecutive months prior
       to the filing of this Petition or incarceration.
                The children were removed [from] the parents, Barbara Michelle Mabe
       Davidson and Eddie Gene Davidson, as the result of a Petition filed in Juvenile Court


                                                 -7-
in which the children were found to be dependent and neglected as defined by T.C.A.
37-1-102 and the children were placed in DCS custody. This Court found at that
time that the DCS made reasonable efforts to prevent removal of the children or the
circumstances of the children’s situation prevented reasonable efforts from being
made prior to the children’s removal. For a period of four (4) months following
removal, DCS made reasonable efforts to assist the parents, Barbara Michelle Mabe
Davidson and Eddie Gene Davidson to establish a suitable home for the children, but
the parents made no reasonable efforts to provide a suitable home and have
demonstrated a lack of concern for the children to such a degree that it appears
unlikely that Barbara Michelle Mabe Davidson or Eddie Gene Davidson will be able
to provide a suitable home for the children at an early date. Therefore, the
Defendants have abandoned [A.T.D.] and [L.N.D.].
         The Defendant, Barbara Michelle Mabe Davidson, has not substantially
complied with the provisions of the permanency plans. Ms. Davidson is required to
complete an A&D assessment and treatment, complete mental health counseling,
complete parenting classes, submit to random drug screens and remain drug free,
resolve criminal charges, and maintain stable income and housing with appropriate
utilities. These requirements are reasonabl[y] related to remedying the conditions
that necessitate foster care. Ms. Davidson made no attempt to comply with her
permanency plan until April 2002, when she started A&D treatment and parenting
classes, but did not complete them. In June of 2002 she had two drug screens that
were positive for methamphetamines. She has not completed mental health
counseling. She has not established stable income. Ms. Davidson’s probation was
violated due to her drug usage. She was incarcerated from July 15, 2002 through
July 22, 2002. After she was released, Petitioner encouraged Ms. Davidson to
complete her parenting classes and A&D treatment. Ms. Davidson has not completed
them. Ms. Davidson did not visit regularly with her children during the month of
August 2002. She claimed it was because she was working for her father. However
she failed to provide proof of employment or income and when Petitioner made a
daytime home visit, Ms. Davidson was not working, but rather was at home with her
boyfriend. Ms. Davidson was again incarcerated on August 30, 2002. DCS made
reasonable efforts to assist Ms. Davidson in complying with the permanency plan by
referring Ms. Davidson to service providers, placing in home services in her home
and by paying for portions of the services.
         Barbara Michelle Mabe Davidson was advised on February 14, 2002 and
January 13, 2003 that failure to comply with the permanency plans was grounds for
termination of parental rights.

       ....

        The children have been removed from the custody of their parents for more
than six (6) months.



                                        -8-
               The conditions which led to the removal of the children from the home of
       their parents still exist and other conditions exist which in all probability would cause
       the children to be subject to further abuse and/or neglect, making it unlikely that the
       children could be returned to either parent in the near future. After the removal of
       the children, Ms. Davidson continued to abuse methamphetamines, resulting in her
       being incarcerated. Had she complied with her rules of probation she would not have
       been incarcerated. She had not remedied any of the conditions that caused the
       children to come into foster care. Barbara Michelle Mabe Davidson had started
       A&D treatment several times, but has never completed A&D treatment. She
       admitted to taking hydrocodone, which was not prescribed for her, in March 2003.
       She continues to associate with drug users. She still does not have adequate living
       arrangements or the ability to support her children. Eddie Gene Davidson has
       abandoned the children. He has made no effort to provide the children a suitable
       home.
               There is little likelihood that these conditions will be remedied at an early
       date so that the children can be returned to either parent in the near future.
               The continuation of the parent or guardian and child relationship greatly
       diminishes the child’s chance of an early integration into a stable and permanent
       home.
               Barbara Michelle Mabe Davidson and Eddie Gene Davison have not made
       an adjustment of circumstances, conduct or conditions as to make it in the children’s
       best interest to return home in the foreseeable future.
               Barbara Michelle Mabe Davidson and Eddie Gene Davidson use of alcohol
       or controlled substances render them consistently unable to care for the children.
               Barbara Michelle Mabe Davidson and Eddie Gene Davidson have not paid
       a reasonable portion of the children’s substitute physical care and maintenance when
       financially able to do so.
               Barbara Michelle Mabe Davidson and Eddie Gene Davidson have not paid
       child support consistently with the child support guidelines promulgated by the
       Department pursuant to T.C.A. 36-5-101.

We agree with the trial judge that all of these facts are established in the record by clear and
convincing evidence.

THE BEST INTEREST OF THE CHILDREN

        The primary thrust of the appeal by Michelle Davidson is that even if clear and convincing
evidence establishes grounds for termination of her parental rights, the Court should not take such
action because clear and convincing evidence does not establish that such termination is in the best
interest of the children.

       Tenn. Code Ann. § 36-1-113(i) describes the standard for determining whether
       termination is in the best interests of the child in such cases:


                                                 -9-
                (I) In determining whether termination of parental or guardianship
                rights is in the best interest of the child pursuant to this part, the court
                shall consider, but is not limited to, the following:
                (1) Whether the parent or guardian has made such an adjustment of
                circumstance, conduct, or conditions as to make it safe and in the
                child’s best interest to be in the home of the parent or guardian;
                (2) Whether the parent or guardian has failed to effect a lasting
                adjustment after reasonable efforts by available social services
                agencies for such duration of time that lasting adjustment does not
                reasonably appear possible;
                (3) Whether the parent or guardian has maintained regular visitation
                or other contact with the child;
                (4) Whether a meaningful relationship has otherwise been
                established 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 or controlled substances
                as may render the parent or guardian consistently unable to care for
                the child in a safe and stable manner;
                (8) Whether the parent’s or guardian’s mental and/or emotional
                status would be detrimental to the child or prevent the parent or
                guardian from effectively providing safe and stable care and
                supervision for the child; or
                (9) Whether the parent or guardian has paid child support consistent
                with the child support guidelines promulgated by the department
                pursuant to § 36-5-101.

        While the record shows that visitation occurred between Michelle Davidson and the children
with some degree of regularity, primarily through the efforts of DCS, and the record further
establishes that the Mother loves her children and the children love her, none of the other criteria
supports the position of the parent. The record and findings of the court specifically list every one
of the statutorily listed criteria.

        The state argues correctly, “The listed factors are not exhaustive. The statute does not require
every factor to appear before a court can find that termination is in a child’s best interest.” Tennessee
Dep’t of Children’s Services v. T.S.W., et al., 2002 WL 970434 *3 (Tenn.Ct.App.2002).


                                                   -10-
        The record fully supports the trial court determination by clear and convincing evidence that
termination of the parental rights of Michelle Davidson is in the best interest of the children. We
find the following discussion in accord:

               In making this best-interests determination, the trial court is required to
        consider, inter alia, [the statutory factors]:

                ....

        Tenn. Code Ann. § 36-1-113(i)(Supp.1998).
                In finding that termination of the Mother’s parental rights was in the
        children’s best interests, the trial court specifically considered factors (1), (2), (5),
        (7), and (9).

                ....

                We conclude that the evidence supports the trial courts’ findings.

In Re C.W.W., 37 S.W.3d 467, 475-77 (Tenn.Ct.App.2000)(affirming trial court’s termination of
parental rights despite parent’s “significant” progress).

         As in all termination of parental rights cases, court inquiry must be searching and diligent
before a court is justified in terminating the fundamental right of natural parents to the care, custody
and control of their children. In re Drinnon, 776 S.W.2d 96 (Tenn.Ct.App.1988). In this case the
addiction of the Mother to methamphetamine required DCS to act to remove her children from
deplorable conditions. She was afforded every opportunity to confront her problems while her
children were being nurtured in foster care. She declined her opportunities and her own conduct
returned her to incarceration. On each of the two occasions when she was released from
incarceration she returned to the company of other persons involved in drugs. If her essentially
unsupported claim is actually true, that following her last incarceration she has mended her ways,
it is simply too little and too late. Every termination of parental rights case is a tightrope walk with
the best interest of children and the fundamental right to care and custody of those children serving
as balancing factors. When, as here, the parent has demonstrated such a complete lack of honesty
in her own drug treatment as well as a complete inability to comply with parenting plans whose
primary purpose was to reunite her with the children she would otherwise have a right to raise, the
tightrope walk comes to a calamitous end. The trial court’s determination, when supported by such
clear and convincing evidence as here appears, that such reunification would fail to serve the best
interest of the children should be, and is hereby, affirmed. The primary concern of the Court is, after
all, the best interest of the children, not the best interest of the natural parent. Judgment of the trial
court is in all respects affirmed and costs are assessed against Appellant.




                                                  -11-
       ___________________________________
       WILLIAM B. CAIN, JUDGE




-12-
