                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                               Assigned on Briefs
                               November 28, 2000

 STATE OF TENNESSEE, Department of Children’s Services, v. D. & G. M.

                Direct Appeal from the Juvenile Court for Hamilton County
       No. 142,157; 142,158; 142,840; 142,841; 150,517; 150,518; 154,133; 154,134
                                Hon. Suzanne Bailey, Judge

                                       FILED JANUARY 8, 2001

                                 No. E1999-01359-COA-R3-CV




The Trial Judge terminated mother’s parental rights to her three minor children. We affirm.


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

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


Marty M. Stone, Chattanooga, Tennessee, for Appellant, D.M.

Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Assistant Attorney
General, Nashville, Tennessee, for Appellee, State of Tennessee, Department of Children’s Services.




                                             OPINION


               The Trial Judge terminated the parental rights of both parents to the three minor
children and the mother, D.M., has appealed.

                  The Department removed the three children from the parents on June 12, 1997. The
children were taken from a roach-infested home which had no lights, no water, a malfunctioning
toilet, lack of food and supervision. Additionally, both parents admitted to drug problems, i.e., crack
cocaine and alcohol. Following the removal, a plan of care was developed by DCS for the mother
and father which required them to have an alcohol and drug assessment and complete whatever that
program recommended, as well as releasing information to DCS, to have random drug screens done,
to obtain stable employment and housing, to pay child support and have regular visitation.

                The record reflects that the parents made very little progress on their obligations under
the plan, and the Petition to Terminate Parental Rights was filed in March of 1999 by DCS. After
hearing the evidence, the Trial Judge terminated both parents’ parental rights.

              The standard of review of the Trial Court’s findings of fact is de novo with a
presumption of correctness, unless the preponderance of the evidence is otherwise. Tenn. R. App.
P. 13(d). No presumption of correctness attaches to the a Trial Court’s legal conclusion. Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87 (Tenn. 1993).

                 A parent’s fundamental right to their children may be terminated if there is clear and
convincing evidence justifying such termination under an 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).
However, the issues involving termination of parental rights are premised on the foundation of what
is in the best interest of the child. Tennessee Dept. of Human Services v. Riley, 689 S.W.2d 164
(Tenn. Ct. App. 1984); Tenn. Code Ann. §36-1-113(c).

                In this case, the Trial Court terminated the parental rights relying upon several
statutory grounds, including abandonment for willful failure to pay child support and failure to
substantially comply with the plan of care. The statutory ground of abandonment requires that the
parent willfully failed to support or willfully failed to visit the children for four consecutive months
preceding the termination petition. Tenn. Code Ann. §36-1-102 and 36-1-113(g). The
uncontraverted evidence is that no support was paid by either parent at any time, and that the failure
to pay was willful. The mother admitted that she had worked at least some of the time during the
two years her children were in foster care, and was aware that she was supposed to send support.
She gave no valid reason why she had not paid support, and when asked, she said, “I don’t know,
but I have given them things though.” The Trial Court’s finding of abandonment on this issue is
supported by clear and convincing evidence. Moreover, the evidence established, as found by the
Trial Court that the mother had failed to substantially comply with the plan of care. The mother
presented no documentation to show that she had ever completed the drug/alcohol treatment program
as required by the plan of care. A caseworker testified that the mother had never provided drug
screens or a release so that the information could be obtained. She admitted that she had used drugs
and alcohol after the children were removed, failed to visit the children, failed to maintain
employment, and had not paid any child support. There is clear and convincing evidence to support
termination, as found by the Trial Court. Moreover, the evidence supports the Trial Court’s finding
that the conditions which led to removal of the children still persisted, and would not likely be
remedied in the future. Tenn. Code Ann. §36-1-113(g)(3). The Trial Court found that the children’s
chance of being adopted would diminish as they aged, and the evidence in this regard was not
disputed.

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                 In determining whether termination is in the children’s best interests, the court must
consider such factors as whether the parent has improved circumstances in the home to make it safe
for the children to be there, whether such improvement is lasting, whether the parent has visited
regularly, and whether a meaningful relationship between the parent and child has been established.
Taking into account all the factors set forth in T.C.A. §36-1-113(i), the evidence is clear and
convincing that the best interest of these children requires the termination of the mother’s parental
rights, so that the children can be placed for adoption as soon as possible.

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



                                                       _________________________
                                                       HERSCHEL PICKENS FRANKS, J.




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