                     IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                               Assigned on Briefs December 6, 2013

                                  IN RE RAMON E. A. V.,1 ET AL.

                Appeal from the Juvenile Court for Hamblen County
      No. 16200J, 15058J, 15422J, 15421J   A. Benjamin Strand, Jr., Sp. Judge 2




                 No. E2013-01562-COA-R3-PT-FILED-FEBRUARY 25, 2014


This is a termination of parental rights case. Following a hearing, the trial court found clear
and convincing evidence existed to support the termination of the father’s parental rights on
the statutory grounds of (1) abandonment due to failure to visit and (2) failure to comply
substantially with the permanency plan. The trial court further concluded that clear and
convincing evidence revealed that termination was in the best interest of the children. The
father appeals. We affirm the decision of the trial court.

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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., P.J., and T HOMAS. R. F RIERSON, II, J., joined.

Gerald T. Eidson, Rogersville, Tennessee, for the appellant, Ramon A. V.

Robert E. Cooper, Jr., Attorney General and Reporter, and Alexander S. Rieger, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.

Dawn Coppock, Strawberry Plains, Tennessee, for the appellees, Richard and Tami A.

Charity Miles Williams, Knoxville, Tennessee, guardian ad litem.


        1
         To protect the identity of children in parental rights termination cases, we use initials instead of the
last names of the parties.
        2
            Sitting by interchange.
                                                OPINION

                                          I. BACKGROUND

       By the time Damonica L. T. (“Mother”)3 was nineteen years old, her relationship with
Ramon A. V. (“Father”), a man twice her age, had begun. Infidelity and domestic violence
characterized their relationship.4 Father was “a regular cocaine user,” and he and Mother
would “smoke weed together and stuff.” Over the years, Father5 and Mother had the
following children together: Ramon E. A. V., Jr. (d.o.b. 5/14/2007), twins Buddy N. A. V.
and Margarita L. A. V. (d.o.b. 3/23/2008), and Aida N. A. V. (d.o.b. 12/15/2009)
(collectively, “the Children”). After the filing of the termination petition, Father and Mother
gave birth to a fifth child, Abdiel A.V.

       In March 2008, when DCS filed for temporary custody of young Ramon due to
Mother’s drug use, Father tested positive for cocaine and was not allowed to take custody of
the child. Ultimately, Ramon was returned to Mother. When twins Margarita and Buddy
were born, DCS petitioned for custody based upon their low birth weights resulting from
Mother’s drug abuse. Mother was permitted to retain physical custody of the Children
conditioned upon a trial home visit. Again, Father could not assume custody of the Children
because he still was abusing drugs. When all four children eventually came into state
custody in February 2010, once again Father was unable to take the Children because of his
drug use. On October 5, 2010, the juvenile court determined that the Children were
dependent and neglected based in part upon Father’s drug abuse. By Father’s own
admission, he has been using drugs since he was seven years old.

       During the fifteen months prior to the termination hearing, Father twice tested positive
for drugs on DCS drug screens. Prior to that time, Father tested positive on June 6, 2007, for
cocaine, methamphetamine, marijuana, and benzodiazepines after informing the juvenile
court that “he may test positive for cocaine and marijuana because he had used both
substances within the past 48 hours.” Despite this admission, Father later told the court “that
he disputes the positive drug screen.” Father tested positive for marijuana and cocaine on
February 20, 2010, and stipulated to marijuana use and “snorting cocaine,” but not “smoking
crack cocaine” on February 24, 2010. The juvenile court, as part of the dependency and
neglect process, found ongoing cocaine and marijuana abuse.


       3
           Mother surrendered her parental rights on April 16, 2013.
       4
           “[H]e would smack me.”
       5
           Father had two children living in Pennsylvania from a previous relationship.

                                                     -2-
       On November 1, 2010, Father again tested positive for cocaine and benzodiazepines.
At a permanency plan hearing on March 16, 2011, he tested positive for cocaine when
screened at the courthouse. At a hearing on November 2, 2011, Father apparently stated that
he would test positive for pain medication for which he did not have a prescription. At an
April 25, 2012 hearing, Father admitted that he was a cocaine addict and had used cocaine
as recently as January 25, 2012, and marijuana as recently as February 12, 2012. He also
admitted that he had declined to take a drug screen on February 15, 2012, because he
believed he would test positive.

       After the filing of the termination petition on February 9, 2012, Father apparently
decided to comply with the permanency plan and address his drug use. He observed that
previously, he “didn’t care [about] getting off drugs because every time the kids got t[a]ken
away, they were right back to their mama. That’s why I didn’t care.”

        Mother related during her testimony that Father had been imprisoned in Puerto Rico
for a time and had been arrested for disorderly conduct and resisting arrest. Father also has
been cited repeatedly for driving without a driver’s license. An order of protection was
issued against him for alleged domestic violence against the girlfriend with whom he spends
time when he is not with Mother. At trial, Father admitted, “[o]h, yeah, I have, I have hit a
woman.”

        Since Spring 2010, the Children have been placed with Tami and Richard A. (“Foster
Parents”). Tami (“Foster Mother”) confirmed that Ramon, Buddy, and Margarita have
special medical needs related to ADHD and sickle cell anemia. Medical appointments are
numerous and the home life for the Children must be very structured. When the Children
first came into custody, their developmental ages lagged behind those of comparable
children. They had limited vocabularies and largely communicated with hand gestures.
Additionally, they were underfed. After being nurtured for years by the foster family, the
Children are thriving. Foster Mother confirmed that she has devoted her life to the Children.
She testified that the foster family’s older children “all love the younger children . . . and we
just all work well together.” Foster Mother related that she and her husband also love the
Children and intend to adopt all of them, including the younger child born after the filing of
the termination petition. She noted that her family “want[s] to keep them together. That’s
very important to us.” The CASA report revealed that “all 4 children display love for each
other and a very strong bond with their foster family whom they have been a part of for 26
months.” Even Father acknowledged that the Children had developed a bond with the foster
family.

       During the years in which the Children were being cared for by Foster Parents, Father
declined to visit them and did not attempt to get custody. According to Father, he did not

                                               -3-
visit because he “couldn’t pass a drug screen.” When visits resumed after the filing of the
termination petition, DCS observed that the Children enjoyed spending time and playing with
Father, but when he leaves after his visits, “it’s not like they’re screaming to stay” with him.

       According to Dr. Miriam Weinstein, a pediatric rehabilitation developmental
specialist, if children are removed from their home into a foster home for a significant period
of time and then returned much later to their parents, “[i]t has a very dramatic impact to
children. It makes them feel very insecure. If they love and bond with the new family, then
they’re more scared than ever that this precious thing could be taken away. If you disrupt
that then they may never trust again.” Per Dr. Weinstein, Foster Mother seemed very
competent in her care for the Children. In contrast, she stated that Father’s style on the
parenting scale was “permissive and that could really be very damaging to a child.” Dr.
Weinstein opined that the Children need consistency, borders, and limits. She observed that
Dr. William A. McGillivray, Father’s clinical psychologist, described Father as an “avoidant-
style parent,” so much so that “he’s not going to anticipate problems and try to intervene to
prevent them.” Dr. Weinstein further expressed concern with Father’s history of domestic
violence. She believed that returning the Children to either of the parents “would be
destructive to the children.” She determined that the relationship with the foster family was
“crucial to each child, very, very important to them.”

        Trial in this matter was held on May 23, 2013, and an order terminating Father’s
parental rights was filed on August 13, 2013. The trial court’s findings provided inter alia
as follows:

       At the time of trial, the [C]hildren had been continuously in foster care for
       three years and three months. At the time of the filing of the termination of
       parental rights action on February 9th, 2012, [Father] had not visited with the
       [C]hildren at all since July of 2010, over a year and a half. . . . Subsequent to
       the filing of the termination action, [Father] has visited with the [C]hildren
       fairly regularly.

                                             ***

       Mother and [F]ather currently live together in public housing. [ M]other added
       [F]ather to her lease in June of 2012. Mother testified that [F]ather did not
       actually live with her prior to June, 2012 in violation of the housing authority
       lease, but only came over and spent days at a time when “she needed sex.”
       Mother testified that during these times [F]ather cared for the [C]hildren, even
       though he admitted that he was a heavy cocaine user during that time.



                                              -4-
. . . The Court entered an order in September of 2010, after the [C]hildren had
been in care for over six months, which suspended [F]ather’s visitation until
he could produce a negative drug screen for cocaine. Father does not dispute
that he was using cocaine at the time and continued to do so until some time
after the action for termination of parental rights was filed; although there is
some dispute about exactly when he stopped using cocaine. Nor does [Father]
dispute that he was aware of the court’s order requiring a clean drug screen to
visit. Father does not dispute the validity of the DCS drug screens, which
showed a positive cocaine result during this time; nor does [F]ather dispute
that he chose to use cocaine and forego visitation with [the C]hildren. It was
not until after the filing of the termination of parental rights action - some 19
months after the court’s visitation order that [Father] produced a clean drug
screen and sought visitation with [the C]hildren.

Mother testified that [F]ather had not used cocaine for at least 8 months and
held steadfast to this timeline of cocaine use that included use after the birth
of their last child, Abdeil, in May, 2012. [F]ather claimed a longer period of
abstinence. Despite the valiant effort by [F]ather’s counsel to “refresh”
[M]other’s memory otherwise, [M]other continued to testify that he had only
ended his regular use of cocaine about 8 months before trial. Mother and
[F]ather’s testimony leads the court to conclude that [F]ather continued to use
cocaine at least until late summer, 2012.

[F]ather exercised visitation with [the C]hildren regularly after the filing of the
termination of parental rights action. However, FSW 6 Courtney Sweet
testified that [F]ather’s last visit, which occurred a few days before trial,
revealed a frustrated father. He visited with all five of [the C]hildren for four
hours, without [M]other present, as [M]other had surrendered her rights. The
visit appeared less than successful to Ms. Sweet.

Father signed the Criteria for Termination of Parental Rights provided by DCS
in November, 2010 and FSW Courtney Sweet testified that she verbally
explained the criterion to [F]ather and that he understood the ramifications of
failing to visit. FSW Sweet also testified that the Juvenile Court judge
explained the criteria for termination of parental rights to [F]ather at least once
at the initial permanency plan ratification. Father did not dispute that he was
aware that abandonment of [the C]hildren was a ground for termination of his
parental rights. Father asks for “another chance” stating that he knows he can

6
    “FSW” denotes “foster care social worker.”

                                            -5-
        be a good parent because he is now not the addict that he was before.

        DCS developed four permanency plans7 after the [C]hildren came into foster
        care on February 24th, 2010. The requirements of the plans for [F]ather
        included, but were not limited to, parenting classes, an alcohol and drug
        assessment and treatment, following all resulting recommendations,
        maintaining stable housing and employment. Upon learning of domestic
        violence between [M]other and [F]ather, anger management and domestic
        violence classes were added to the plans by the court. As noted in the CASA
        report of August 18, 2010, [F]ather could not be persuaded to complete any
        steps on his permanency plan. Father admitted that he did nothing initially
        except possibly an assessment for alcohol and drugs, but then testified that he
        completed his requirements in less than 3 months after the state filed for
        termination.

        Each of the [C]hildren came into foster care in a poor physical condition and
        the [C]hildren continue to experience difficulties. While Margarita’s broken
        leg and the parents’ drug use are the direct reasons that the [C]hildren came
        into care, the indirect results of long-term, dangerously poor parenting was
        evident from testimony. The [F]oster [M]other testified that upon coming into
        her home the [C]hildren were malnourished and significantly behind in their
        developmental milestones. The [C]hildren were not accustomed to eating
        regularly or feeding themselves. The oldest child, Ramon, was 3 years old at
        the time of custody and had significant dental decay that required admission
        to Children’s Hospital on an outpatient basis to have repair.

        Father was unable to identify any of the [C]hildren’s medical diagnoses,
        conditions or problematic behaviors, admitting that he had failed to attend
        medical appointments for the [C]hildren. Father blamed DCS for his failure
        to attend, stating that DCS only notified [M]other of happenings in the case.
        The Court finds that [F]ather was present at permanency planning meetings
        and court appearances where the [C]hildren’s needs and various appointments
        were discussed. He knew who the caseworkers were and how to reach them.
        The record is void of any request by [F]ather for more information or any
        complaint lodged by [F]ather prior to the trial about not being sufficiently
        advised. Thus the Court attributes his lack of knowledge to his lack of interest


       7
         The first permanency plan developed by DCS is presented as separate plans for each child, while
subsequent plans are presented as a family plan with all the Children on one plan. Thus, there are four
separate permanency planning events of record.

                                                  -6-
and his failure to appreciate the severity of the [C]hildren’s needs.

[M]other testified in the termination matter, although she was no longer a party
to the action. Mother initially appeared impaired at trial and admitted to taking
a Xanax at about 4:30 a.m., but denied any other drug use prior to testifying.
She testified that her disheveled appearance and red eyes were related to her
tearfulness about the situation. Mother admitted that she had smoked
marijuana three days prior to testifying and also that she used marijuana in the
home she shared with [F]ather. [M]other acknowledged that she had relapsed
in her drug recovery. Mother has a prescription for Xanax, per her testimony.
While [M]other was at times . . . combative and disrespectful, she did not
appear to be unable to understand questions or form answers and she did not
appear incapable of understanding the oath. At times, she candidly assessed
her own shortcomings but was unwilling to place any responsibility on
[F]ather. Both parents appeared to believe that i[t] was primarily [M]other’s
responsibility to attend to the needs of the [C]hildren before the [C]hildren
came into DCS custody and later it was her responsibility to get the [C]hildren
back from DCS. Both parents placed the blame on [M]other for [F]ather
facing a termination of parental rights.

Father failed a DCS drug screen for marijuana in August of 2012, which he
disputed. He claimed that he obtained a second drug screen sometime later
with a negative result. [F]ather also failed a DCS drug screen on April 9, 2013
for marijuana and benzodiazepines. He testified that he was unable to afford
the $50.00 for a second drug screen, so he went to the hospital and lied about
his condition in order to obtain a “free” drug screen. That screen showed
negative for all substances. The Court notes Father’s lie to medical personnel
for his own gain.

On April 10, 2013, [F]ather again tested positive for marijuana and
benzodiazepine on another unscheduled DCS drug screen. [Father] testified
that he obtained a second drug screen from New Hope but admitted that even
that drug screen showed positive for benzodiazepine. He did not explain that
positive test and he did not retest. Father admitted that DCS offered to pay for
a hair follicle drug screen on April 10, 2013 in an effort to allow him to prove
he was not using drugs, but he declined.

Mother, not [F]ather, had a prescription for benzodiazepine. Father continued
to testify he had not taken drugs, despite the positive drug screens from DCS
and other entities. Father had not been to aftercare treatment for over a month

                                       -7-
at the time of the positive drug screens, but denied that he relapsed. Drug
screens can be inaccurate, however, [F]ather’s positive screen for
benzodiazepines on a subsequent screen from his own aftercare provider,
coupled with the evidence that [M]other is prescribed benzodiazepine leads the
Court to conclude that [F]ather is abusing [M]other’s medication. In addition,
[M]other testified that she is the “hook-up” for marijuana and th[at] she is the
one with the “connections” to obtain the illegal drugs. Mother admits to using
marijuana in the parties’ home and [F]ather has also tested positive for
marijuana. The Court finds that [F]ather is also using marijuana.

Father tested negative for all substances on the day of trial and [M]other tested
positive for marijuana and benzodiazepines, which was consistent with her
testimony. The Court finds from all of the evidence that while [F]ather may
have gone through classes pertaining to drug treatment, he has not
discontinued his illegal drug use.

Further, [F]ather resides with [M]other who admittedly has “relapsed.” Father
could offer the court no plan as to how he would take care of the [C]hildren if
he were permitted to take them home the day of trial, except for a proposed
babysitter for whom he could not provide a last name. While [M]other offered
to leave the family home, albeit by shouting out during [F]ather’s testimony,
[F]ather testified that the housing authority lease is in [M]other’s name. Father
testified he has no driver’s license and that he didn’t think “anything about it”
even though he was cited the prior month while driving [M]other’s car, for
driving on a suspended license. He testified this type of citation usually costs
$200.00 in court costs and fines. Father testified he would take public
transportation, if necessary, to get the [C]hildren about. Father testified that
all the [C]hildren need is love and attention.

[F]ather has not made adjustments to his circumstance to make it safe for the
[C]hildren to come home. At the time of trial, [F]ather still abused drugs and
lived with [M]other who abused drugs. While the court finds that the
[C]hildren are familiar with [ F]ather and may enjoy [F]ather as a playmate, he
does not have a meaningful parental bond with the [C]hildren. . . .

Miriam Weinstein, medical doctor and pediatric rehabilitation developmental
specialist and expert in neonatal abstinence syndrome, treated Buddy and
Margarita . . . , reviewed a number of records regarding the [C]hildren and
parents and testified by deposition. The court found Dr. Weinstein’s testimony
to be credible and particularly helpful in determining the special needs and

                                       -8-
best interest of the [C]hildren.

Dr. Miriam Weinstein testified as an expert about the effects of intra uterine
drug exposure. Mother admitted that 3 of the 4 children were drug exposed,
with only the youngest Aida not being exposed to drugs. The Court would
note that [F]oster [M]other testified that Aida has the “fewest” problems. Dr.
Weinstein testified that Buddy and Margarita show signs o[f] drug exposure
. . . in utero and resulting [in] long-term impairment. As drug exposed
children, Buddy and Margarita need a caregiver with a great deal of insight,
perception, patience and willingness to make extra effort beyond that
necessary to successfully parent children without long-term impacts from drug
exposure. To be successful these children need strong limits and consistency
and parents willing to “be the boss.”

A parenting assessment of [F]ather found him to use an avoidant style of
parenting. [Father]’s psychological assessment found him to be opportunistic
with significant antisocial tendencies. With this information and her
assessment of the [C]hildren Dr. Weinstein predicted [F]ather’s frustration
with visits, which was later observed by Ms. Sweet. Dr. Weinstein also
testified that in light of his psychological traits, history of domestic violence,
and drug abuse and the frustration he can be expected to experience with four,
young, special needs children, [Father] was unlikely to be able to keep the
[C]hildren physically safe or to provide the highly structured life that is
essential for the [C]hildren to feel emotionally safe and to thrive.

Dr. Weinstein noted fear of abandonment in the [C]hildren typical of those
with many disruptions in their lives. She expressed grave concerns about the
affect of addition[al] disruptions on the [C]hildren’s mental health even if the
[C]hildren were to move from one good caretaker to another. She described
the bond that she witnessed between Buddy and Margarita and Ms. A[.] as
“crucial” to the [C]hildren. Dr. Weinstein opined that for children so
damaged, to disrupt a strong and longstanding bond with parental figures
would permanently damage the [C]hildren. Damage could include reactive
attachment disorder that could inhibit development of healthy adult
relationships. Disruption could also be expected to cause the [C]hildren to
substantially regress in their progress since removal. The Court finds that
returning [the C]hildren to . . . [F]ather would be catastrophic. The Court
notes that the bond with the [foster family] formed while [F]ather was, by
choice using cocaine instead of visiting with [the C]hildren and working his
foster care plan.

                                       -9-
Foster mother, Tammy A[.] testified that upon initially coming into the A[.]
home, the four children together had about seventeen visits to various
professionals a week to address their physical and emotional health and delays.
Now the [C]hildren are much improved and have fewer appointments but are
still receiving multiple treatments. Ms. A[.] testified that she and her husband
and their older children had strongly bonded with the [C]hildren and wanted
them to be a permanent part of their family.

This Court finds that in spite of treatment, [Father] remains either addicted to
drugs or persists in the recreational use of drugs with [M]other. He has tested
positive for benzodiazepine at least twice since he completed treatment and
claimed to have overcome his addiction. While this court believes that
[F]ather is sincere in his confidence in his ability to parent, he does not fully
appreciate what parenting his or any children requires or that drug use is only
part of his shortcomings. Further, he fails to recognize the impact of his delay
in developing an interest in parenting [the C]hildren.

It is uncontroverted that [F]ather willfully failed to visit prior to the filing of
the termination action. By his testimony his continued cocaine use was by
choice. [Father] was aware of [M]other’s problems. He knew that the
[C]hildren had been removed from her care multiple times before this final
custodial episode. He knew the consequences of failure to visit from at least
November of 2010 when he signed the Criteria for Termination of Parental
Rights which was presented and explained to him by FSW Sweet. [Father]
admits that [the C]hildren are bonded to their foster family but said he believes
that “they will be okay” after time. The Court finds that [F]ather has extremely
limited insight into the needs of any child, much less his particular children
who have special needs and are successfully settled in another home.

                         CONCLUSIONS OF LAW

The State has proven two grounds for termination of the parental rights of
[Father] by clear and convincing evidence with respect to his four children [
] Ramon E. A. V., Buddy N. A. V., Margarita L. A. V., and Aida N. A. V.
Those grounds are abandonment by failure to visit and substantial
noncompliance with permanency plan. There is overwhelming proof that
[Father] did not visit [the C]hildren at all from late 2010 to post filing of the
termination of parental rights. There is also overwhelming evidence that the
reason for both failures was his voluntary abuse of cocaine and his
unreasonable delegation of his parental responsibilities to [M]other who also

                                       -10-
abused drugs and who also had a poor parental track record.

It is clear that when properly motivated, [Father] can attend visits and work on
his plan. [Father]’s eleventh hour efforts, pointed out that the impediment was
willingness, not understanding of what was required or any external barrier to
performance. It is unclear whether he has the insight and temperament to ever
become a safe placement for four young children with special needs, but that
question is no longer pertinent. Due to his permitting grounds to manifest,
delay and the bonds formed over a period of years between the [F]oster
[P]arents and the [C]hildren, the State appropriately filed for termination.

He never formed a relationship with the [C]hildren that was any more
meaningful than playmate and he did not demonstrate that he could safely and
consistently supervise and care for the [C]hildren. [Father]’s efforts were too
little and far too late. This court finds by clear and convincing evidence that
termination of [Father]’s parental rights is in the best interest of the subject
[C]hildren.

                                      ***

. . . [Father] did fail to visit during the relevant four month period and also had
notice of the criteria for Termination of Parental Rights that exceeded the
notice legally required.

. . . [Father]’s abandonment was willful as not only did he choose to continue
his cocaine use, but he failed to make any effort to modify his circumstance
until after termination was filed.

. . . [Father] knew the contents of his permanency plan admittedly by his own
testimony at trial. The problems in the home, the serious and mysterious injury
of Margarita, drug abuse by both parents, economic and relationship
instability, weak parenting skills, domestic violence by the father, malnutrition,
dental decay and developmental delays of the [C]hildren, correlate well to the
plan’s requirements. The plan was modified and tailored to the family’s needs,
with domestic violence counseling offered when it was discovered that
[Father] was physically abusive to [M]other. Father did not dispute that the
reasonableness of the plan, no[r] did he dispute that he was aware of all of his
requirements.

. . . This court is concerned about [F]ather’s inability to recognize and

                                       -11-
       appreciate the needs of [the C]hildren. It is reasonable to expect that in the
       care of a parent who is oblivious to the [C]hildren’s needs, the improvement
       in their physical and mental health and educational strides would be reversed.
       Based upon the statutory factors, and the testimony of Dr. Weinstein and the
       dramatic improvement in the physical and mental health of the [C]hildren
       precipitated primarily by changing the [C]hildren’s caretakers and getting them
       appropriate services, the continued criminal activity in the home, absence of
       a meaningful relationship between [F]ather and the [C]hildren, the lack of
       meaningful change and the [C]hildren’s need to integrate into a permanent
       home, the Court finds that the termination of [Father]’s parental rights is in the
       best interest of the [C]hildren.

(Numbering in original omitted).

       Father filed a timely notice of appeal.


                                          II. ISSUE

        The issue presented by Father on appeal is whether the trial court properly determined
that the termination of his parental rights was in the best interest of the Children.


                             III. STANDARD OF REVIEW

        Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App.
1988). This right “is among the oldest of the judicially recognized liberty interests protected
by the Due Process Clauses of the federal and state constitutions.” In re M.J.B., 140 S.W.3d
643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a parent is a grave
and final decision, irrevocably altering the lives of the parent and child involved and
‘severing forever all legal rights and obligations’ of the parent.” Means v. Ashby, 130
S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-113(I)(1)). “‘[F]ew
consequences of judicial action are so grave as the severance of natural family ties.”’ M.L.B.
v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v. Kramer, 455 U.S. 745, 787 (1982)).

       While parental rights are superior to the claims of other persons and the government,
they are not absolute and may be terminated upon appropriate statutory grounds. See Blair
v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process requires clear and convincing
evidence of the existence of the grounds for termination of the parent-child relationship. In

                                             -12-
re Drinnon, 776 S.W.2d at 97. “[A] court must determine that clear and convincing evidence
proves not only that statutory grounds exist [for termination] but also that termination is in
the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). The existence
of at least one statutory basis for termination of parental rights will support the trial court’s
decision to terminate those rights. In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct. App. 2000),
abrogated on other grounds by In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005).

       The heightened burden of proof in parental rights termination cases minimizes the risk
of erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence standard
establishes that the truth of the facts asserted is highly probable. State v. Demarr, No.
M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App. Aug. 13, 2003). This
evidence also eliminates any serious or substantial doubt about the correctness of the
conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at 546; In re S.M., 149
S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d 919, 925 (Tenn. Ct. App.
2004). It produces in a fact-finder’s mind a firm belief or conviction regarding the truth of
the facts sought to be established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002);
Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474.

       The Tennessee Supreme Court has provided guidance in reviewing cases involving
the termination of parental rights:

       A reviewing court must review the trial court’s findings of fact de novo with
       a presumption of correctness under [Rule 13(d) of the Tennessee Rules of
       Appellate Procedure]. See In re Adoption of A.M.H., 215 S.W.3d [793,] 809
       [(Tenn. 2007)]. In light of the heightened burden of proof in proceedings
       under [Tennessee Code Annotated section] 36-1-113, the reviewing court must
       then make its own determination regarding whether the facts, either as found
       by the trial court or as supported by a preponderance of the evidence, provide
       clear and convincing evidence that supports all the elements of the termination
       claim. State Dep’t of Children’s Servs. v. Mims, 285 S.W.3d [435,] 447-48
       [(Tenn. Ct. App. 2008)]; In re Giorgianna H., 205 S.W.3d 508, 516 (Tenn. Ct.
       App. 2006); In re S.M., 149 S.W.3d 632, 640 n. 13 (Tenn. Ct. App. 2004).
       Appellate courts conduct a de novo review of the trial court’s decisions
       regarding questions of law in termination proceedings. However, these
       decisions, unlike the trial court’s findings of fact, are not presumed to be
       correct. In re Angela E., 303 S.W.3d [240,] 246 [(Tenn. 2010) ]; In re
       Adoption of A.M.H., 215 S.W.3d at 809.

In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010) (emphasis added).

                                              -13-
                                     IV. DISCUSSION

       Tennessee Code Annotated section 36-1-113 provides the grounds for termination of
parental rights. The applicable provisions read as follows:

       36-1-113. Termination of parental rights. – (a) The chancery and circuit
       courts shall have concurrent jurisdiction with the juvenile court to terminate
       parental or guardianship rights to a child in a separate proceeding, or as a part
       of any grounds for termination of parental or guardianship rights permitted in
       this part or in title 37, chapter 1, part 1 and title 37, chapter 2, part 4.

                                             ***

       (c) Termination of parental or guardianship rights must be based upon:

              (1) A finding by the court by clear and convincing evidence that
              the grounds for termination of parental or guardianship rights
              have been established; and

              (2) That termination of the parent’s or guardian’s rights is in the
              best interests of the child.

                                             ***

       (g) Initiation of termination of parental or guardianship rights may be based
       upon any of the grounds listed in this subsection (g) . . . :

              (1) Abandonment by the parent or guardian, as defined in § 36-
              1-102, has occurred;

              (2) There has been substantial noncompliance by the parent or
              guardian with the statement of responsibilities in a permanency
              plan pursuant to the provisions of title 37, chapter 2, part 4 . . .
              .

Tenn. Code Ann. § 36-1-113(a)-(g)(1) & (2).

       Father does not challenge the determination that grounds existed to terminate his
parental rights. We find that clear and convincing proof exists in the record that for nearly

                                             -14-
a year and a half, Father willfully did not bother to visit the Children. Additionally, the
record reflects that Father made no attempt whatsoever to comply with the permanency plans
prior to the filing of the termination petition because he “didn’t care.” DCS demonstrated
that the requirements of the plans were reasonable and related to remedying the conditions
that initially led to the removal of the Children. There was clear and convincing evidence
of Father’s substantial noncompliance. Accordingly, the trial court did not err in finding that
grounds existed to terminate Father’s parental rights.


                                    B. BEST INTEREST

       Having concluded that there was clear and convincing evidence supporting the
statutory grounds to terminate Father’s parental rights, we must consider whether termination
of Father’s parental rights was in the best interest of the Children. In making this
determination, we are guided by the non-exhaustive list of factors provided in Tennessee
Code Annotated section 36-1-113:

       (i) In determining whether termination of parental or guardianship rights is in
       the best interest of the child . . . 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;

                                               -15-
               (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 [section] 36–5–101.

Tenn. Code Ann. § 36-1-113(i) (Supp. 2012). “This list is not exhaustive, and the statute
does not require a trial court to find the existence of each enumerated factor before it may
conclude that terminating a parent’s parental rights is in the best interest of a child.” In re
M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also stated
that “when the best interest[ ] of the child and those of the adults are in conflict, such conflict
shall always be resolved to favor the rights and the best interest[ ] of the child, which
interests are hereby recognized as constitutionally protected.” Tenn. Code Ann. § 36-1-
101(d); see also White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004) (holding that
when considering a child’s best interest, the court must take the child’s perspective, rather
than the parent’s).

       Father challenges the determination that termination of his parental rights is in the best
interest of the Children. He contends that his “progress in addressing the issues that brought
the [C]hild[ren] into custody should be considered.” Father notes the following
accomplishments: (a) he has a residence; (b) he has consistently paid child support; (c) he
has an extensive work history; (d) he completed his alcohol and drug assessment, anger
management, parenting, and domestic violence classes within three months of the filing of
the termination petition; (e) he completed an outpatient drug program; and (f) he attended a
meeting for a psychological evaluation.

                                               -16-
        Contrary to the position of Father, the proof clearly and convincingly reveals that
termination of Father’s parental rights was in the best interest of the Children. At the time
of trial, Father was unemployed and living with Mother, despite the fact that Mother had
surrendered her rights and the Children could not reside with her. Father admitted that he
had done nothing since the Children were born to provide them with a suitable home. He
made no effort to remedy his drug problem until the termination petition was filed.
Thereafter, he still failed three drug screens. Accordingly, Father has failed to make a lasting
adjustment of circumstances despite DCS’s efforts to assist him. See Tenn. Code Ann. § 36-
1-113(i)(1) & (2). Additionally, Father has failed to maintain regular visitation and contact
with the Children. See Tenn. Code Ann. § 36-1-113(i)(3). Due to the lack of visitation
between Father and the Children, the parent-child relationship has eroded. Father
acknowledged that “[i]t’s like I don’t exist for these kids.” See Tenn. Code Ann. § 36-1-
113(i)(4).

       The Children are thriving in the Foster Parents’ home. After being nurtured for years
by the foster family, the Children are performing “above and beyond.” Dr. Weinstein’s
assessment addresses the problems a return of the Children to Father might create:

       Do the children feel the same degree of bondedness back [to the biological
       parents], I would doubt that because these parents have not been the primary
       caregivers for these children for a long, long time and as I’ve described, it’s
       the difference between, say, a grandparent who has visits and someone who’s
       doing daily care.

                                             ***

       I can say with a high degree of medical certainty if these children went back
       [to the biological parents], their degree of bonding would not be sufficient to
       overcome years of having been in a different home.

                                             ***

       [T]hree years in one home is long enough that these children are set in
       concrete and that ripping them up would be very destructive.

See Tenn. Code Ann. § 36-1-113(i)(5).

       In consideration of all of the foregoing factors, the trial court correctly concluded that
the termination of Father’s parental rights is in the Children’s best interest. The record
demonstrates that the Children have become attached to the Foster Parents and are fully

                                              -17-
integrated into the pre-adoptive home. A change in caretakers and physical home
environment likely would have an adverse effect on their well being. We therefore concur
in the view of the trial court that awarding custody to Father would be contrary to the
Children’s best interest.


                                   V. CONCLUSION

       We affirm the trial court’s order terminating the parental rights of Father to Ramon
E. A. V., Jr., Buddy N. A. V., Margarita L. A. V., and Aida N. A. V. The costs of the appeal
are assessed to Father, Ramon A. V.




                                                   _________________________________
                                                   JOHN W. McCLARTY, JUDGE




                                            -18-
