                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                             October 28, 2004 Session

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN’S SERVICES v.
    LILLI LOWERY, IN THE MATTER OF M.D.B. (dob 11/18/96)

                 Direct Appeal from the Juvenile Court for Hamblen County
                        No. 13157   Hon. Mindy Norton Seals, Judge



                 No. E2004-00517-COA-R3-PT - FILED JANUARY 10, 2005



The Trial Court determined there were statutory grounds to terminate the mother’s parental rights
and that termination was in the child’s best interest, all by clear and convincing evidence. On appeal,
we affirm.


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


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which D. MICHAEL SWINEY ,
J., and SHARON G. LEE, J., joined.


Scott A. Hodge, Morristown, Tennessee, for Appellant.

Paul G. Summers, Attorney General and Reporter, and
Juan G. Villasenor, Assistant Attorney General, Nashville, Tennessee, for Tennessee Department
of Children’s Services.



                                             OPINION



                 The State filed a Petition for Temporary Custody on September 20, 2002, seeking to
have MDB declared dependent and neglected. A Protective Custody Order was entered, placing the
child in state custody, and appointing a Guardian Ad Litem. On October 3, 2002, a Permanency Plan
was executed, with the stated goal of reunifying the mother and child. The Plan acknowledged that
the mother had substance abuse issues, and stated the mother was to obtain an assessment and that
she would initiate and complete the recommended treatment. The mother was also to attend AA/NA
meetings, with the goal that the mother would be alcohol and drug free. Also, the mother was to
arrange visitation through DCS, for a minimum of 4.3 hours per month, and that she was to initiate
services with a mental health provider to treat major depression and anxiety disorder, and that she
would obtain appropriate housing and provide a safe, stable environment for the child.

               A hearing was then held on November 13, 2002, and a Consent Decree was entered,
where the parties agreed that the child should remain in DCS custody, and the Department would
make reasonable efforts toward reunification.

                 On September 24, 2003, a Petition to Terminate Parental Rights of the Mother was
filed, alleging that since the removal in September 2002, the mother had no suitable home, the
conditions leading to removal still persisted and there was little likelihood of remedy, and the mother
had failed to substantially comply with the Permanency Plan.

                At trial numerous witnesses testified, and following a hearing the Court entered a
Termination of Parental Rights Decree, which incorporated the Court’s Findings and Judgment. In
the Court’s Findings and Judgment, the Court reviewed the evidence that was presented, such as the
fact that the DCS workers explained the requirements of the Plan to the mother repeatedly, that the
mother was progressing until May 2003, when she was observed returning from a visit with the child
sitting on her lap driving the car, with no seatbelt, and from that time only supervised visits were
allowed. The Court found that the DCS representative repeatedly asked the mother if she was
attending the AA/NA meetings involving her counseling, but the mother refused to sign a release
for her counseling and only provided AA/NA documentation through December, 2002. Further, in
September 2003, the mother informed the representative that she did not need to be in a treatment
program and could “do it herself”.

                The Court found that Pam Hill, the case manager, was concerned because the mother
would leave messages on her voice mail in the middle of the night, and in May 2003 the mother did
not appear in court and later explained that she overslept. The Court found that the mother told Hill
that four drug dealers had been in her house and had left a gun there, which she gave to the police.
The Court found that Hill was concerned because the mother’s behavior was strange and the mother
said that people in her neighborhood were giving her drugs. Further, that the mother visited the child
on July 17, 2003, and used crack cocaine the next day. The Court outlined that the mother went to
detox at Peninsula for four or five days and then entered a year long program through Stepping Out
Ministries, but dropped out of that program after 13 days. The Court reiterated the mother admitted
that she had not been in therapy since December 2002, and had lived in 8 places and worked at 9
jobs since February 2003. Further, that the mother had two criminal charges (telephone harassment
and bad checks) since the removal. Finally, the Court found that the child was thriving in his foster
placement, and that his foster parents wanted to adopt him.

               The Court concluded that the Department had proven the persistency of the conditions


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by clear and convincing evidence, and that the conditions would likely cause the child to be
subjected to further abuse and neglect if he was returned to the mother’s care. The Court further
found that there was little likelihood that the conditions would be remedied in the near future. The
Court concluded that termination of parental rights was in the child’s best interest.

               The issues raised by the mother on appeal are:

               1.      Whether clear and convincing evidence supports the trial court’s decision to
                       terminate mother’s parental rights on any of several statutory grounds?

               2.      Whether clear and convincing evidence supports the trial court’s
                       determination that termination of mother’s rights was in the child’s best
                       interests?

               3.      Whether DCS made reasonable efforts on behalf of mother?

                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, and may be
terminated if there is clear and convincing evidence justifying termination under the 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). Further, the court must 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).

                We are required to affirm the Order of Termination if the record contains clear
and convincing evidence to support any of the bases found by the trial court. In re C.W.W., 37
S.W.3d 467 (Tenn. Ct. App. 2000). We have also previously explained that "clear and
convincing evidence" is a more stringent requirement than a preponderance of the evidence, but
less stringent than "beyond a reasonable doubt." O’Daniel v. Messier, 905 S.W.2d 182 (Tenn.
Ct. App. 1995).

               In this case, the trial court terminated the parental rights of the mother on these
statutory grounds:

               1)      failure to substantially comply with the plan of care; and

               2)      that the child had been removed for more than six months, and the conditions
                       requiring removal still persisted and would not likely be remedied in the near
                       future, and continuation of the parent/child relationship diminished the
                       child’s chances for integration into a permanent home.

See Tenn. Code Ann. §36-1-113(g). Additionally, the Court found that termination of parental rights
was in the child’s best interest.


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               While the mother contends that there was not clear and convincing evidence to
terminate the relationship on statutory grounds, she admitted that she never completed any of the
drug treatment programs she was in, and had not been to counseling since December 2002. The
mother testified that she attended AA/NA meetings, but her records show that her attendance was
quite sporadic up until the time of the filing of the petition. She admitted that she had not refrained
from using drugs and alcohol, and had not refrained from criminal behavior. She claimed at trial that
she had suitable housing, even though she had lived in multiple places in the previous year.

                The record establishes that the mother understood her responsibilities under the Plan,
and had agreed to comply. However, her efforts at compliance were minimal and she wasted
numerous opportunities, including the year long program which had been paid for by others, but she
left this program after only 13 days. Essentially, the mother made no real progress in the 16 months
that the child had been in custody, and at trial she demonstrated no plan for making progress in the
future. Clear and convincing evidence established that the mother failed to substantially comply with
the plan.

                 Regarding persistence of conditions, this ground was established by clear and
convincing evidence, based on the above findings. The mother’s situation was not dramatically
different than it had been 16 months before, and there was no indication that it would change for the
better in the near future.

                 The mother further asserts that the termination was not in the child’s best interests,
but the mother’s unremedied addiction and alcohol problems, and the fact that she was not doing
anything to address these problems, would subject the child to an environment which would upset
the stability he has found in the foster placement. The evidence showed that the child was happy
with the foster parents, and he often did not want to visit with the mother. Clearly, the child’s best
interest is to allow him to be adopted so that he can be in a stable, permanent home.

                Finally, the mother argues that DCS did not make reasonable efforts to help her,
which is required by Tenn. Code Ann. §36-1-113(I)(2).1 This statutory section states that when
determining whether a termination is in the child’s best interests, the court should consider whether
the parent 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." Id. This statute requires a showing that reasonable efforts were made by DCS to help the
parent make a change, but that the parent failed. We have previously recognized, DCS must make
"reasonable" efforts, not "herculean" efforts. DCS v. Malone, 1998 WL 46461 (Tenn. Ct. App. Feb.
5. 1998). The requirement of reasonable efforts is contained in Tenn. Code Ann. §36-1-113(I). Any
efforts by the Department and the results are only one factor of many which the Trial Court must

       1
        See DCS V. Malone, 1998 WL 46461 (Tenn. Ct. App. Feb. 5, 1998) (Tenn. Code Ann. §36-
1-113 provides the proper framework for this issue in a termination proceeding); see also DCS v.
Short, 2003 WL 21338699 (Tenn. Ct. App. June 10, 2003).

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consider. In this case, the Trial Court found that DCS had made reasonable efforts to help the
mother and was not required to “hold her hand” or supervise her 24/7. This finding is supported by
the proof.2

               We conclude that a statutory basis for terminating parental rights was established by
clear and convincing evidence and termination was shown to be in the child’s best interest based
upon the statutory criteria. We affirm the Trial Court’s Judgment terminating the parental rights of
the mother.

               The cause is remanded, with the cost of the appeal assessed to the mother.




                                                      ______________________________
                                                      HERSCHEL PICKENS FRANKS, P.J.




       2
         Since the enactment of Tenn. Code Ann. §36-1-113(h)(1)(A), a petition to terminate parental
rights, “shall” be filed by the department when a child has been in custody for 15 of the last 22
months.

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