                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                         Assigned on Briefs November 28, 2012

                             IN RE TIMOTHY W. H. ET AL.

                 Appeal from the Chancery Court for Lawrence County
                         No. 15571   Jim T. Hamilton, Judge


                No. M2012-01638-COA-R3-PT - Filed December 7, 2012


The father of two minor children appeals the termination of his parental rights. The trial court
found three grounds for termination: abandonment for failure to pay child support; failure
to comply with the permanency plan; and failure to remedy persistent conditions. The court
also found that termination of Father’s parental rights was in the best interests of the children.
Finding no error, we affirm.

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

F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which A NDY D. B ENNETT
and R ICHARD H. D INKINS, JJ., joined.

M. Wallace Coleman, Jr., Lawrenceburg, Tennessee, for the appellant, Timothy W. H., Jr.

Robert E. Cooper, Jr., Attorney General and Reporter, and Martha A. Campbell, Deputy
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.

                                           OPINION

        Timothy W. H., Jr. (Father) and Hannah Alicia L. (Mother) are the parents of Timothy
W. H., III (“Timmy”) (born December 2008) and Emma K. F. H. (“Emma”) (born September
2009). Mother and Father married in 2008, not long before Timmy was born. They were
living in Eva, Morgan County, Alabama at the time. They moved to Decatur, Alabama not
long after Timmy was born and lived in Decatur for about a year and a half. They moved to
Tennessee prior to Christmas of 2009. When they first moved to Tennessee, they lived with
Father’s mother, stepfather, and his stepfather’s mother.
        In March of 2010, DCS investigated a complaint that Emma, then six months old, was
medically neglected. Shortly thereafter, Mother and Father separated; Mother moved back
to Alabama to live with her father and she left the children in Father’s custody. Mother and
Father were divorced in May of 2010. Father then moved to a trailer park in Lawrenceburg
where he lived with a fifteen-year-old girl named Holly and her parents. Father, who stated
later that he believed Holly was around eighteen years old, engaged in a sexual relationship
with Holly.

       Father was subsequently charged with felonious statutory rape; he pled guilty to that
charge on January 4, 2011 in Lawrence County. Father was placed on two years probation
for that offense, and was still on probation at the time of the trial on May 2, 2012. He also
pled guilty to possession of marijuana for resale, a felony, on January 4, 2011. Father
received two years probation for that offense. Due to the statutory rape charge, Father is on
the sex offender registry in Tennessee.

       On August 10, 2010, Timmy and Emma were removed from Father’s custody and
placed in the custody of the Department of Children’s Services (“DCS”) due to Father living
with and having a sexual relationship with a fifteen year old. The removal was also due to
Emma not being properly nourished and being diagnosed with failure to thrive. The
Lawrence County Juvenile Court issued an emergency protective custody order placing the
children in temporary State custody on August 10, 2010, adjudicated the children dependent
and neglected on September 15, 2010, and an order finding the children dependent and
neglected was entered on November 16, 2010 in the Lawrence County Juvenile Court.

       The children have been in foster care continuously since the August 10, 2010
protective custody order and they have lived in one foster parent home with Josh and Tammy
S. since coming into DCS custody in August of 2010.

       DCS filed the Petition to Terminate Parental Rights on October 21, 2011. The trial on
the termination of Mother’s and Father’s parental rights was held on May 2, 2012, in the
Chancery Court for Lawrence County. Both Mother and Father were represented by their
own counsel. A final order terminating both parents’ rights was entered on June 22, 2012.
Father timely filed a notice of appeal on July 20, 2012; Mother did not appeal.

                                   S TANDARD OF R EVIEW

        Parents have a fundamental right to the care, custody and control of their children.
Stanley v. Ill., 405 U.S. 645, 651 (1972); Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993).
This right is superior to the claims of other persons and the government, yet it is not absolute.
In re S.L.A., 223 S.W.3d 295, 299 (Tenn. Ct. App. 2006). Nevertheless, parental rights may

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be terminated only where a statutorily defined ground exists. Tenn. Code Ann. §
36-1-113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980
S.W.2d 620, 622 (Tenn. Ct. App. 1998). The petitioner has the burden of proving that there
exists a statutory ground for termination, such as abandonment or failing to remedy persistent
conditions that led to the removal of the child. See Tenn. Code Ann. § 36-1-113(c)(1); Jones,
92 S.W.3d at 838. Only one ground need be proved, so long as that ground is proved by clear
and convincing evidence. See In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003). In addition
to proving one of the grounds for termination, the petitioner must prove that termination of
parental rights is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c)(2); In re F.R.R.,
193 S.W.3d 528, 530 (Tenn. 2006); In re A.W., 114 S.W.3d 541, 544 (Tenn. Ct. App. 2003);
In re C.W.W., 37 S.W.3d 467, 475-76 (Tenn. Ct. App. 2000) (holding a court may terminate
a parent’s parental rights if it finds by clear and convincing evidence that one of the statutory
grounds for termination of parental rights has been established and that the termination of
such rights is in the best interests of the child).

        Therefore, a court may terminate a person’s parental rights if (1) the existence of at
least one statutory ground is proved by clear and convincing evidence and (2) it is clearly and
convincingly established that termination of the parent’s rights is in the best interest of the
child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d 793, 809
(Tenn. 2007); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

       Whether a statutory ground has been proved by the requisite standard of evidence is
a question of law to be reviewed de novo with no presumption of correctness. In re B.T., No.
M2007-01607-COA-R3-PT, 2008 WL 276012, at *2 (Tenn. Ct. App. Jan. 31, 2008) (no
Tenn. R. App. P. 11 application filed) (citing In re Adoption of A.M.H., 215 S.W.3d at 810).

                                           O PINION

                   I. G ROUNDS FOR T ERMINATION OF P ARENTAL R IGHTS

       The trial court found three grounds upon which Father’s parental grounds may be
terminated provided that termination of his parental rights is in the best interests of the
children. We discuss each of these grounds below.

                    A. N ONCOMPLIANCE WITH THE P ERMANENCY P LANS

       Tennessee Code Annotated § 36-1-113(g)(2) authorizes termination of parental rights
for failure to comply with a parenting plan. In order for noncompliance to justify the
termination of parental rights, it must be “substantial.” In re S.H., No. M2007-01718-COA-
R3-PT, 2008 WL 1901118, at *7 (Tenn. Ct. App. Apr. 30, 2008). In conjunction with

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terminating a parent’s rights on the ground of substantial noncompliance, the trial court must
find that the requirements of the permanency plan that the parent allegedly did not satisfy are
“reasonable and related to remedying the conditions which necessitate foster care
placement.” In re Valentine, 79 S.W.3d at 547 (quoting Tenn. Code Ann. § 37-2-
403(a)(2)(C)). The issue of substantial noncompliance with the requirements of a
permanency plan is a question of law; therefore, it is reviewed de novo with no presumption
of correctness. Id. at 546.

        A permanency plan was created for each child; the initial meeting to develop the plans
occurred within a week after the children came into DCS custody. Both parents attended the
initial meeting. After the August 18, 2010 preliminary hearing, Ms. Kim Jennings, a DCS
Family Service Worker, informed them that the permanency plan meeting would be on
August 26, 2012. The first permanency plan meeting was held on August 26, 2010 and the
permanency plan was developed at that time; both parents were notified of this meeting but
they did not attend. The permanency plans list a number of requirements that Mother and
Father needed to satisfy before the children could safely be returned. The plans required both
parents to pay child support for the children while they were in DCS custody; provide safe,
stable housing for the children; maintain income to support the children; refrain from
incurring additional criminal charges; participate in an alcohol and drug assessment,
parenting assessment and mental health assessment and follow all recommendations; and
successfully resolve all involvement with the Alabama Department of Human Resources. The
permanency plan also required that all paramours complete alcohol and drug assessment,
parenting and mental health assessments, and follow all recommendation. The juvenile court
ratified the initial permanency plans on November 17, 2010, and Ms. Jennings mailed a copy
of the plans to both parents.

         The permanency plans were revised on December 9, 2010. The revised plan reiterated
the requirements in the initial plan and added the following responsibilities: that Mother and
Father attend regular medical appointments for the children; that they acquire and maintain
medical insurance for the children; that they come to Tennessee at least two times per month
to visit the children at least two hours each visit; that they provide a safe and stable home for
the children free of abuse; that all legal issues be resolved and no new legal issues incurred;
and that they have homes that will pass an Interstate Compact on the Placement of Children
(“ICPC”) home study. The permanency plans stated that the children are not bonded to the
parents due to lack of visitation. The December 9, 2010 permanency plans also added the
alternative goal of adoption. Neither parent appeared when the December 9, 2009 plans were
developed.

        On January 29, 2011, Father had his first supervised visit with the children. During
that visit, Ms. Jennings went over the permanency plan developed on December 9, 2010 with

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Father. She explained to him that adoption was added as an alternative goal due to the lack
of visitation with the children, and that the lack of visitation was a serious concern for DCS.
Father told her that he understood, that he was now with a good woman, and had a good job
and a good home, and that he would be visiting regularly. Ms. Jennings also gave Father a
copy of the Criteria and Procedures for Termination of Parental Rights and the permanency
plans. Ms. Jennings went over the criteria with him section by section, including the section
on abandonment. The criteria addressed abandonment, lack of concern, substantial non-
compliance with the permanency plan, and persistent conditions. Father signed the criteria
on that date.

      On June 9, 2011 Father married a lady named Heather who has two children. He lived
with Heather and her children from June of 2011 until February of 2012. Father and Heather
were separated at the time of the trial; the separation was precipitated by the fact the
Alabama DHR removed Heather’s children and would not return the children to their mother,
Heather, while Father was living in the home, because he was a sex offender.

       The permanency plans were revised again on August 11, 2011. The plans reiterated
the requirements of the December 9, 2010 plans, and added the following: that the parents
will contact DCS two times a month to see if the children have medical appointments; that
Father and his new wife participate in co-parenting through their parenting provider; that the
parents work with the parenting instructor no less than three times a month; that the parents
be able to demonstrate the parenting skills they learned during the visitations with the
children; that the parents cooperate with Alabama DHR and the ICPC home study process;
that Father participate in anger management and address his Post Traumatic Stress Disorder
(PTSD) with his counselor; that Father address his grief issues regarding the death of his
eight week old child due to SIDS; that he have his mental health intake scheduled by August
19, 2011; that Father provide DCS with the contact information for his probation officer by
August 31, 2011; that Father continue his alcohol and drug treatment and meet with the
provider no less than three time a month; and that he follow the recommendations of his
alcohol and drug assessment and schedule a mental health intake to rule out the need for
further tests, substance abuse and PTSD by August 19, 2011. Father signed the August 19,
2011 permanency plans. Ms. Susie Kelley, DCS Family Service Worker, reviewed the plans
with Father and gave him copies; she also cautioned him that he needed to pay child support.
She also went over the Criteria and Procedures for Termination of Parental Rights with
Father on August 11, 2011, she addressed every section with him and asked him if he had any
questions about it. He signed the criteria and she gave him a copies.

       With regard to visitation, Father admitted at trial that he did not visit his children
during the first five months they were in custody, except for meeting the foster parents with
the children in Florence, Alabama, in November, 2010. He admitted he did not see them in

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August, September or October of 2010 and explained that this was because he would have
to miss work driving back and forth to Tennessee. Father missed two supervised visitations
in October of 2010 and January 2011. Ms. Jennings testified that she offered Father visitation
in January of 2011 as the children had not seen their parents in months and they were not
going to know them. With her assistance, Father had a supervised visit on Saturday, January,
29, 2011. During this visit, Father’s girlfriend and her children were in the car, and Father
kept going to the car to smoke and check on them; he left the children alone in the visitation
area as he did so. Ms. Jennings explained to him that he should not leave the children
unattended.

        DCS arranged therapeutic supervised visits for Father at Arnell’s Counseling. Ms.
Kristie Howell worked at Arnell’s and arranged for the therapeutic visitation from March of
2011 until August of 2011. Father had two visits in March of 2011 and none in April; he
explained that he worked at different locations and also attended college Tuesday through
Friday nights. Father told her he wanted to visit on Saturdays and Sundays but that was in
conflict with her schedule and DCS is not open on those days. In May of 2011 he had one
visit; in June of 2011 he had one visit. During the first visit the children were reluctant at
first, but Father was able to interact with the children. His last supervised visit with Ms.
Howell was on June 17, 2011. Ms. Howell testified that Father’s interaction with the children
was good during the visits but short, they only lasted two hours and, on occasion, he brought
inappropriate food, such as cookies for breakfast. Further, she said Father did not consistently
bring diapers and wipes. Ms. Howell also testified that she advised Father that he could have
two supervised Saturday visits on April 16, 2011 and April 30, 2011, to accommodate his
desire for weekend visitation. However, Father did not come on April 16, 2011, he explained
he had spent so much money on his stepdaughter’s birthday. Father also cancelled the April
23, 2011 visit as he had made other plans.

        Father never obtained suitable housing for the children. Although he insisted that he
had a safe and stable home, and denied interfering with the Alabama DHR home inspection,
the evidence presented at trial proved otherwise. Because of concerns with Father, the
Alabama DHR wanted to take law enforcement with them when they went to Father’s home
to do the home study; Father refused to allow law enforcement in his home so the home study
was never completed. According to a letter from the Cullman County, Alabama, DHR, dated
November 14, 2011:

               The home study for [Father] is being denied. [Father] has allegedly
       made threats against a Social Worker in the past. [Father] told Suzy Kelly,
       Tennessee Department of Children’s Services Social Worker that he had made
       threats to the worker and had a gun on the table. [Father] told Michele Cash,
       Cullman County Department of Human Resources Social Worker that he had

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       a gun on the table but did not point it at the Social Worker. [Father] denied to
       me initially that he made any threats and later said only that he had not pulled
       the gun on the Social Worker. [Father], a registered sex offender, has been
       reluctant to allow law enforcement to be in his home during the completion of
       the home study. [Father] was informed on 11/7/11 that he and his wife would
       need to submit to a background clearance. [Father] said he would not agree to
       a background clearance until he had gotten approval from his attorney. As of
       this date [Father] has not been in compliance and therefore a home study can
       not be completed.

       Father did not address his mental health issues. He denied having a diagnosis of PTSD
but admitted to being prescribed medication for stress. He went to the Cullman Mental
Health Center in Alabama where he saw a therapist once and saw a mental health specialist
for a while. He testified that he went for mental health assessments until the end of 2011 but
had not made an appointment for a therapist since that time. His excuse was that he was
working a full-time job and could not leave work so he had not done it. Father also admitted
having appointments in January and February of 2012 but did not appear.

       When Ms. Arnell of Arnell’s Counseling tried to set up a mental health assessment
Father informed her that he could not make the appointments as he was working and in
school and it cost too much to drive. The personnel in Cullman closed his case because
Father did not attend the last two sessions.

        Father was still on probation at the time of the hearing; he had not completely
addressed his legal issues with the Alabama DHR as his stepchildren had recently been
removed from his home. He never completed co-parenting and his wife never scheduled their
joint counseling.

        This record reveals that DCS exerted reasonable efforts to help Father satisfy the
requirements in the permanency plans. DCS workers met with him and discussed the
permanency plans and criteria for termination of parental rights. They scheduled visitation
for him and provided therapeutic visitation for him, including parenting session. DCS
requested the home study for his home. They provided him with an alcohol and drug
assessment and anger management session. They offered co-parenting counseling to him.
They requested mental health assessment for him to address his PTSD and to follow through
with all recommendations. The record also reveals the requirements Father failed to satisfy
were reasonable and related to remedying the conditions which necessitate the removal of
his children and their placement in foster care.




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       We therefore affirm the trial court’s finding that Father failed to substantially comply
with the requirements of the permanency plan.

                              B. P ERSISTENCE OF C ONDITIONS

       Tennessee Code Annotated § 36-1-113(g)(3) specifies the essential elements for the
“persistent conditions” ground for termination of parental rights. It provides that grounds for
termination exist when:

       (3) The child has been removed from the home of the parent or guardian by
       order of a court for a period of six (6) months and:

              (A) The conditions that led to the child’s removal or other
              conditions that in all reasonable probability would cause the
              child to be subjected to further abuse or neglect and that,
              therefore, prevent the child’s safe return to the care of the
              parent(s) . . . , 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) . . . in the near future; and
              (C) The continuation of the parent . . . and child relationship
              greatly diminishes the child’s chances of early integration into
              a safe, stable and permanent home; . . .

Id.

       The evidence in this record, which we summarized earlier in this opinion, clearly and
convincingly established that Father made no material changes to the conditions that existed
when the children were removed in 2010; that there is little likelihood that these conditions
will be remedied at an early date so that the children may be safely returned to Father in the
near future; and that the continuation of the parent and child relationship greatly diminishes
the childrens’ chances of early integration into a safe, stable and permanent home. For these
reasons, we affirm the trial court’s finding that DCS proved the “persistent conditions”
ground for termination of Father’s parental rights by clear and convincing evidence, pursuant
to Tennessee Code Annotated § 36-1-113(g)(3).




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                        C. A BANDONMENT BY F AILURE TO S UPPORT

       We now turn our attention to the ground of abandonment for the failure to support.
Father admits he did not provide support for the children; however, he contends the evidence
does not clearly and convincingly prove that he wilfully failed to pay child support.

       For purposes of terminating parental rights of a parent, “abandonment” means:

       (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(1)(A)(i).

        To find abandonment by failure to support, it must be established that the failure to
support was “willful.” See In Re Swanson, 2 S.W.3d 180, 184–85 (Tenn. 1999). Failure to
pay support is “willful” if the parent “is aware of his or her duty to support, has the capacity
to provide the support, makes no attempt to provide support, and has no justifiable excuse
for not providing the support.” In Re J.J.C., 148 S.W.3d 919, 926 (Tenn. Ct. App. 2004). The
fact the parent was not under an order to pay support is not dispositive of the question of
whether the failure is willful; the obligation to pay support exists in the absence of a specific
order. Tenn. Dep't of Children's Servs. v. Culbertson, 152 S.W.3d 513, 524 (Tenn. Ct. App.
2004).

        Father knew the consequences of his failing to support his children, including that
failure to support his children during the four months preceding the filing of the petition to
terminate parental rights would be a ground for termination of his parental rights, because
he signed the Criteria and Procedures for Termination of Parental Rights. Further, the record
reveals that Ms. Kelley spoke with Father on several occasions about the importance of
paying child support and that she told Father he needed to pay child support, she gave him
numbers and told him he needed to call and make arrangements to pay child support.
Nevertheless, Father admitted at the May 2, 2012 trial that he had not paid child support since
his children were removed in August of 2010, he also admitted that he has not been
incarcerated during this period of time, and he admitted he did not pay child support for the
four consecutive months prior to the filing of the Petition to Terminate Parental Rights on
October 21, 2011. Additionally, the foster mother confirmed that they never received child
support from Father. The DCS workers confirmed that he had not paid child support as well.

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        As for his ability to pay support, Father was employed from the time his children went
into state custody in August of 2010 through the filing of the Petition to Terminate Parental
Rights in October of 2011, until the time of trial in May of 2012. When the children were
removed in August of 2010 he was doing odds and ends to earn money. When he moved
back to Alabama at the end of 2010 he had two jobs, working at Absher Construction and
Sonoco. He did retail maintenance for Absher Construction and earned about $7.45 per hour.
He worked thirty to forty hours per week at Sonoco building wooden reels for wires for
minimum wage. He later worked at Golden Rod, a chicken plant. At the time of trial he
worked forty hours per week at Southern Energy Homes building trailers making $9.60 per
hour.

       Considering the foregoing and the entire record, it has been clearly and convincingly
established that Father was aware of his duty to support the children, that he had the ability
to provide support and that he wilfully failed to do so. We therefore affirm the finding that
Father abandoned the children by failure to support.

                            II. B EST INTERESTS OF THE C HILDREN

        The Tennessee General Assembly has provided a list of factors for the court to
consider when conducting a best interest of the child analysis. See Tenn. Code Ann. § 36-1-
113(i)(1)-(9). The nine statutory factors, which are well known and need not be repeated
here, are not exclusive or exhaustive, and other factors may be considered by the court. See
In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Moreover, not every statutory
factor need apply; a finding of but a few significant factors may be sufficient to justify a
finding that termination of the parent-child relationship is in the child’s best interest. See In
re M.A.R., 183 S.W.3d at 667. The child’s best interest is to be determined from the
perspective of the child rather than the parent. See State Dep’t of Children’s Servs. v. L.H.,
No. M2007-00170-COA-R3-PT, 2007 WL 2471500, at *7 (Tenn. Ct. App. Dec. 3, 2007)
(citing White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004)).

        Kim Jennings, the DCS Family Service Worker, testified that when the children came
into custody in August of 2012, they were small for their age, thin and pale. Emma hardly
had any hair, even though she was nine or ten months old at the time. Presently, their
condition is that they are much more sociable. Their faces have filled out and their coloring
is better. Timmy has started to talk, and he would not talk to Ms. Jennings at the time he
came into custody. Ms. Kelley testified that she has observed the children in the foster home.
The children react to the foster parents just like they are family, they love their foster family,
and the children are very attached to them.




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       The children have lived with their foster parents since they came into custody in
August of 2010. Josh S., the foster father, has been employed as a paramedic for a nearby
county EMS for the past twenty-two years, his wife works as a nursing home administrator,
and they have two teenage daughters and the girls get along with the children just like they
are their brother and sister. The girls bathe the children, feed them and do sisterly chores for
them. The children call the foster parents mama and daddy. Mr. S. testified that he feels
about them like they are his own children, he has a close bond with them and he loves them.
When he pulls into the driveway they run out the back door after him.

       Mrs. S., the foster mother, also testified that her teenage daughters spend a lot of time
with the children. They play with them, read to them, help them get their baths and feed
them, and get them to bed. Mrs. S. loves them like they are her own biological children and
they want to adopt the children if they become available for adoption.

       In this case, the evidence clearly and convincingly established that Father failed to
make an adjustment in circumstance to make his home(s) safe for the children, see Tenn.
Code Ann. § 36-1-113(i). Further, to allow the children to return to Father, which could not
be considered until he makes numerous positive changes and becomes a responsible parent,
which Father has repeatedly failed to do, would subject the children to more uncertainty and
instability. Moreover, it would require the removal of the children from the only home they
has ever known and where they are happy, healthy, and thriving. Id. § 36-1-113(i)(5).

       Considering these relevant factors from the childrens’ perspective, the evidence
clearly and convincingly established that it is in the childrens’ best interests that Father’s
parental rights be terminated.

                                       I N C ONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs of
appeal assessed against the appellant, Timothy W. H., Jr.




                                                        ______________________________
                                                        FRANK G. CLEMENT, JR., JUDGE




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