                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                               June 7, 2004 Session

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN’S SERVICES v.
          CBH, IN RE: SB, a Child Under 18 Years of Age

                   Direct Appeal from the Circuit Court for Bradley County
                   No. V-02-1034    Hon. John B. Hagler, Jr., Circuit Judge



                    No. E2003-03000-COA-R3-PT - FILED JULY 29, 2004



The Trial Court terminated the mother’s parental rights after finding statutory grounds to terminate
and clear and convincing evidence that it was in the child’s best interest that the parent’s rights be
terminated. On appeal, we affirm.


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


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and D. MICHAEL SWINEY , J., joined.

Charles G. Wright, Jr., Chattanooga, Tennessee, for Appellant.

Paul G. Summers, Attorney General and Reporter, and
Elizabeth C. Driver, Assistant Attorney General, Nashville, Tennessee, for Appellee.


                                             OPINION


               The Department of Children’s Services (DCS) filed a Petition to Terminate Parental
Rights of the mother, CBH, to the minor child, SB, on December 9, 2002, alleging that mother had
abandoned the child, has not complied with her permanency plan, and the child had been removed
for more than six months.

                 The Petition further alleged that SB was removed from the mother (and not for the
first time) on July 27, 2001, and that mother had not sought visitation with the child since that time,
had not engaged in a permanency plan, and had shown no intent to reunify with the child.
                 Following an evidentiary hearing in which numerous witnesses, as well as the mother,
testified, the Trial Court found the mother had been given many opportunities, especially in the last
two years to properly care for the child, but the Department had found it necessary to take the child
into custody again. The Court said there was clear and convincing evidence that the mother
endangered the children when she was arrested for driving recklessly and without a license, and that
she had no success in dealing with her alcohol and drug problems, although services had been
available to assist her.

               The Court held the mother had not complied with the permanency plans, and this was
a “classic case” of persistence of conditions. The Court observed that the child had been in state
custody for most of the 15 years of her life.

                The Court found that the mother’s failure to support the child was not willful, as the
evidence did not establish her ability to pay. The Court held, however, that the mother’s failure to
visit, was willful, and was grounds for termination. The Court noted that he gave no credit to much
of the mother’s testimony in conflict with the witnesses from the Department.

                The Court entered an Order terminating the mother’s rights on the grounds of
abandonment for failure to visit, persistence of conditions, and incompetence to care for the child
due to the mother’s long-standing problems with alcohol and drugs, further that termination was in
the child’s best interest.

               The mother has appealed, and these issues are presented for consideration on appeal:

               1.      Whether the trial court erred in considering evidence prior to the latest
                       removal on July 27, 2001?

               2.      Whether the trial court had a legal basis to terminate based on Tenn. Code
                       Ann. §36-1-113(g)(8)?

               3.      Whether the trial court had a legal basis to terminate based on Tenn. Code
                       Ann. §36-1-113(g)(3)?

               4.      Whether the trial court had clear and convincing evidence of abandonment
                       pursuant to Tenn. Code Ann. §36-1-102(1)(A)(I)?

               5.      Whether the trial court had a legal basis for termination pursuant to Tenn.
                       Code Ann. §36-1-102(1)(A)(ii)?

                A parent has a fundamental right to the care, custody, and control of her child.
Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208 (1972). This right is not absolute, however, and
may be terminated if there is clear and convincing evidence justifying termination under the


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applicable statute. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388 (1982); In re Drinnon, 776
S.W.2d 96 (Tenn. Ct. App. 1988). The court must also find that termination of parental rights is in
the child’s best interest. Tennessee Dept. of Human Services v. Riley, 689 S.W.2d 164 (Tenn. Ct.
App. 1984); Tenn. Code Ann. §36-1-113(c).

                The mother argues that the Department should not have been allowed to present
evidence of the conditions prior to the last removal, and that the findings of the Juvenile Court in the
earlier termination proceeding were res judicata, i.e. the mother had been drug free for four years.
The only finding the Trial Court made as to drugs in this case was that drug and alcohol problems
had plagued the mother off and on for years, and that she had never completed a treatment program.
The mother, in her testimony, admitted that she had “slipped” and smoked pot in 2001, and failed
a drug test, which lead to the latest removal.

                 The Trial Court relied upon numerous factors in terminating the mother’s rights, and
made clear that it was not reconsidering matters that the Juvenile Court had previously ruled on, but
on facts which had occurred after the latest removal. The Court found the mother had failed to
comply with her latest plan of care, and was incompetent to care for the child due to her alcohol/drug
problems and instability. The Court ruled the mother had abandoned the child by failing to visit, and
that the conditions which led to removal persisted. Moreover, the history of past behavior is relevant
to the issue of future behavior. We find no error on this issue.1

                The mother argues that the Court did not have a proper basis for finding that she was
mentally incompetent (see Tenn. Code Ann. § 36-1-113(g)(8)) to care for the child, because the
Juvenile Court had previously found in 2000 that she had been drug-free for four years. The mother
admitted at trial that she had taken drugs in the past two years, that she was under indictment for DUI
and child endangerment, and that she had no proper home for the children. She offered no proof
that she had ever completed alcohol or drug treatment, or that she had completed counseling as
required by her plan of care. The Trial Court based his ruling on this ground in part on mother’s
behavior at the trial, stating that from observing mother testify, he was convinced that the mother
did not have the proper mental or emotional state to meet the child’s needs. The mother’s argument
that the Trial Court improperly based its finding on prior facts, is without merit.

               The Trial Court found that this was a “classic case” of persistence of conditions. See
Tenn. Code Ann. § 36-1-113(g)(3)(A). The mother argues that the Trial Court erred in relying upon
this ground because it made no finding that the child had been removed for more than six months,
or what conditions persisted. The proof was undisputed that the child had been in custody from July
2001 until the date of trial (September 2003). Further, the Trial Court discussed the mother’s

       1
         The Juvenile Court Order heavily relied upon by the mother, simply found there was
insufficient evidence to warrant termination or make a finding that termination was in the child’s
best interest at that juncture. Significantly, the Court did not return custody to the mother at that
time, but the Order expressly states that returning the child to the mother was not even considered,
and that the child would remain in state custody until further evaluation.

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instabilities as to mental health, home, etc., her long-standing problems with drugs and alcohol, her
lack of concern for the child and lack of effort to visit the child, as well as the mother’s failure to
comply with any of the plans of care. The mother admitted to using drugs in the last two years, to
checking herself into a facility for stress and suicidal thoughts, and admitted that she had not visited
nor had any contact with the child. She admitted that her current living conditions were not suitable
for the children. The evidence was clear and convincing of the persistent conditions, and this
argument is also without merit.

                The mother argues that the Trial Court erred in terminating her rights based on
abandonment for willful failure to visit, because mother testified she had contacted Ms. Elliott at
DCS and Elliott would not return her calls. Elliott testified that she tried for months to locate mother
and was unsuccessful, and that each time she obtained a lead on the mother’s whereabouts, she
would try to contact the mother there and would find that the mother had moved. Elliott admitted
that mother left one message with a room number at Whitewater Lodge, but when she tried to reach
the mother there, she was told the mother had moved. The Court discredited the mother’s testimony,
and found that the mother had failed to visit the child. The mother admitted that she knew where
the child was, and she knew where the DCS office was, but she made no effort to go there, stating
she was without transportation. She also said she was going back and forth to work during this time
frame, and also claimed to have tried to take clothes to the child on one occasion when she was
rebuffed by Ms. Aubrey. Ms. Aubrey disputed this occurrence.

                 The record shows the mother gave no reasonable explanation for why she failed to
visit the child for more than 18 months prior to trial. The evidence clearly established a basis for a
finding of abandonment. “Abandonment” is defined in Tenn. Code Ann. § 36-1-102, as a parent’s
willful failure to visit or pay child support for four months immediately preceding the filing of the
Petition to Terminate, or where the child has been removed and the Court finds that DCS has made
reasonable efforts to assist the parent in maintaining a stable home for the child, but the parent has
failed to do so over a period of four months, and has demonstrated a lack of concern for the child,
such that it appears unlikely the parent will provide a stable home at an early date. The mother’s
issue is without merit.

                Having determined that there was clear and convincing evidence of grounds for
termination, the issue thus becomes whether termination was in the child’s best interest. The statute
requires that the best interest analysis be based on 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;



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                (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.

Tenn. Code Ann. § 36-1-113(I).

                 The evidence in this case militates in favor of termination on all of the above-listed
factors. Mother has failed to provide a safe home for the child, has failed to establish a meaningful
relationship with the child, has failed to visit, and has failed to effect a meaningful change in her life
or take advantage of the services offered. The evidence is the child is happy and thriving in her
current placement, and a return to mother would be detrimental to her well-being. Termination is
clearly in the child’s best interests, in order that she may be adopted and have a sense of permanency
and stability. The Trial Court properly found termination was warranted in this case.

               We affirm the Judgment of the Trial Court and remand, with the cost of the appeal
assessed to the appellant.




                                                         ______________________________
                                                         HERSCHEL PICKENS FRANKS, P.J.


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