                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                 Assigned on Briefs April 15, 2011

                                     IN RE SHAOLIN P. ET AL.

                    Appeal from the Juvenile Court for Rutherford County
                       No. TC1410      Donna Scott Davenport, Judge


                      No. M2010-02549-COA-R3-PT - Filed May 13, 2011


The juvenile court terminated Father’s parental rights on the grounds of abandonment by
willful failure to provide support and substantial noncompliance with the permanency plans.
Because we have concluded that the Department of Children’s Services failed to establish,
by clear and convincing evidence, that Father’s failure to pay support was willful or that the
Department’s efforts to help Father find housing were reasonable, we reverse the juvenile
court’s decision.

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

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

Stephen Mills, Nashville, Tennessee, for the appellant, Reginald P.

Robert E. Cooper, Jr., Attorney General and Reporter; Marcie E. Greene, Assistant Attorney
General; for the appellee, State of Tennessee, Department of Children’s Services.


                                                OPINION

                             F ACTUAL AND P ROCEDURAL B ACKGROUND

        Brenda A. (“Mother”)1 and Reginald P. (“Father”) are the biological parents of
Shaolin P. (born in November 1999) and Melissa A. (born in March 2001). When she was
just an infant, Shaolin began living with Mother’s great aunt. In 2001, Father pled guilty to
aggravated sexual battery and rape; he was incarcerated until August 2008. Upon his release

       1
           Mother previously surrendered her parental rights and is not involved in this appeal.
from prison, Father was put on the sex offender registry. Under the terms of his probation,2
he was required to stay away from children under the age of 18 other than his own children.

       Melissa, who was living with Mother, was brought into the custody of the Department
of Children’s Services (“DCS”) on July 1, 2009, based upon allegations that she had been
sexually abused by Mother’s boyfriend. DCS prepared a permanency plan for Melissa on
July 23, 2009, with a goal of returning her to her parent(s). Father participated in the plan’s
preparation. Under the plan, Father was to take the following actions to achieve the desired
outcomes:

       •          Sign a release of information to allow DCS to review a previous psycho-sexual
                  evaluation and speak to Father’s treatment providers

       •          Participate in a psycho-sexual evaluation with a parenting component

       •          Obtain safe and appropriate housing and provide a copy of the lease agreement
                  to DCS by September 23, 2009

       •          Develop a budget with help from DCS

       •          Participate in visitation with Melissa, with DCS assistance to establish a bond
                  with his daughter

       •          Comply with the terms of his probation

       •          Abstain from any illegal activities that would result in additional charges

       •          Have a medication evaluation to address previous bipolar diagnosis and follow
                  all recommendations

        Shaolin came into DCS custody in late August 2009 after Mother’s great aunt, with
whom Shaolin was living, was arrested for burglary, vandalism, and theft over $500. At a
meeting with DCS to address a placement for Shaolin, Father acknowledged that he was not
in a position to care for Shaolin at that time. On September 18, 2009, DCS developed a
permanency plan for Shaolin with a goal of returning her to her parent(s). Father participated
in the process. His responsibilities under the permanency plan for Shaolin were the same as
under Melissa’s permanency plan with the addition of two more actions: (1) follow the
recommendations from his parenting assessments, and (2) provide documentation that

       2
           Father remained on probation at the time of the termination hearing.

                                                     -2-
chaperone classes would assist in providing permanency (so that DCS could obtain funding
for the classes). Father was to obtain safe and appropriate housing and provide
documentation to DCS by October 23, 2009.

      New permanency plans were developed for both girls on January 11, 2010, with the
added goal of adoption. The plans noted that Father had not yet obtained safe and
appropriate housing.

      On July 20, 2010, Shaolin and Melissa were found by the juvenile court to be
dependent and neglected. The court made the following findings with respect to Father:

       [Father] is unable to provide the necessary residential stability, from his own
       admission, for his Children; also due to his placement on the sex offender
       registry this limits what actions [Father] can take in regard to providing for his
       Children with it being noted that [Father] is on the registry due to his own
       actions; also there is a lack of bond and/or relationship between [Father] and
       his Children due to his past incarceration; lastly [Father’s] housing is not
       appropriate under all of the circumstances for his Children.

The children remained in DCS custody under the care of a foster family.

        DCS filed a petition for termination of parental rights on April 13, 2010. As to Father,
DCS alleged grounds of (1) abandonment by willful failure to contribute to the support of
the children pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102 and (2) substantial
noncompliance with the permanency plans pursuant to Tenn. Code Ann. §§ 36-1-113(g)(2)
and 37-2-403(a)(2).

                                               The hearing

      The case was heard on October 19 and 20, 2010. Testimony was heard from
employees of DCS and its contractors, as well as the foster mother and Father.

       The DCS caseworker since July 30, 2010, Amanda McKinney, opined that Father had
violated the rule prohibiting him from having contact with children under the age of 18
except his own children. Her opinion was based largely upon a telephone message she
received from Father in which she could hear children in the background.3




       3
           Father only saw his own children during supervised visitation.

                                                     -3-
       Father testified that he was still living in the same apartment that DCS had originally
determined to be inappropriate for the children, a determination with which he had previously
agreed. He stated that he and his landlord had “talked about [the landlord] letting me have
his apartment for $150 more, and I’ve looked at other places.” Father stated that he had not
gotten an appropriate apartment for the first five months after the children were taken into
custody because his monthly disability benefits had been barely enough to pay his current
rent, but then his benefits were increased. In addition, because he was a registered sex
offender, he had to follow the rules of the registry and people often did not want to rent to
him. Father testified about his efforts to find appropriate housing, including looking in the
newspaper and on Craigslist, having a friend drive him around to look for signs, and going
to apartment complexes.

        Father admitted that he had not provided support for the children since they had been
in DCS custody except that he gave each child an allowance of five dollars a week. Father
received disability benefits of $674 per month and food stamps of $200 per month.4 His
current rent was $460 a month (including utilities). In the new apartment he hoped to get
from his landlord, his rent would be $590 a month. Father had no vehicle and had never
gotten a driver’s license. He currently lived across the hall from his wife; the two could not
live together because she had two children living with her.

       Father testified that he had been looking for a job.5 He had never been employed.
According to Father, a computer store had “talked about hiring” him to repair computers, but
he had to get the job approved through his probation officer. Father testified that he was
physically able to work at the computer store. Father could not remember the name of the
store and did not have any documentation of the prospective job or the new lease agreement
with his landlord.

       Father testified that he had asked DCS for help with paying for a new place to live and
was told that he would have to get into the place and pay rent for two months before DCS
could help him. His caseworker had told him that she would help him with housing, but the
only place she ever asked him about was in the housing projects, and Father said he could
not live there. That was the only help Father recalled getting with housing. He denied
receiving a list of possible housing.

       In his testimony, Father denied having violated the rule against being around children
under the age of 18. He admitted associating with a woman who was 18 years old.


       4
           Father’s food stamp allotment had recently been raised from $80 a month to $200 a month.
       5
           According to Father, he was allowed to earn about $100 a month with his disability benefits.

                                                     -4-
       Father stated that his medications had recently been reevaluated and he was able to
function better on the new medications. Before that, his bipolar disorder made him paranoid
around people.

        Christy Bush, an employee of Omni Visions, was the resource coordinator for Shaolin.
She and Brandy Word, another Omni Visions employee, supervised Father’s visits with
Melissa and Shaolin. She described the interactions she observed and expressed concern that
the children did not typically respond to Father when he attempted to discipline them. Father
would bring dinner and some type of activity to the visits.

        Brandy Word with Omni Visions was the next witness. She had been assigned to the
case in August of 2010, so she had only supervised three of Father’s visits with his two
daughters. Ms. Word observed that “the quality of [the visits] was kind of lacking in that the
girls didn’t seem to be interested unless they were getting something from him . . . . Other
than that, they were kind of uninterested.” According to Ms. Word, Father would attempt
to parent or discipline the children; sometimes they would respond immediately, but if they
did not Father “tended to have a hard time redirecting them from the behavior.” Ms. Word
testified that Melissa had counseling for sexual abuse (which did not have anything to do
with Father) and Shaolin had counseling as well. She did not consider the bond between the
girls and Father to be a strong one.

         The children’s foster mother testified that she and her husband wanted to adopt the
girls.

        Shirley Key, the family service worker for Melissa and Shaolin through July 31, 2010,
testified that when the children came into custody, one of the major barriers to their going
home with Father was his housing. When asked if she had made additional efforts to help
Father find appropriate housing (other than helping with rent after he had been in a place for
a month or two), Ms. Key stated that she had called several places and received confirmation
that they would not lease to Father because of his sex offender status. According to Ms. Key,
when she returned to see Father in September 2009, he informed her that he would be
inheriting some money from his grandfather and planned to use that money to purchase a
home. He anticipated receiving the inheritance within a couple of months. Ms. Key returned
to see Father in December 2009 and they talked about other options, including staying with
family members, who could share expenses and help with the children. None of the family
members were in a position to help Father at that time. Father never provided Ms. Key with
documentation that he had attempted to find housing.

       Ms. Key later testified that she had told Father on several occasions that if he could
find appropriate housing, DCS would assist him with the first month’s rent. Ms. Key

                                             -5-
testified that “[p]art of his treatment with the guidance center6 is case management services,
and when I spoke with him in May of this year, he said that Justina from the guidance center
was also working with him to help him find housing.”

       On cross-examination, Ms. Key was asked to be more specific about the information
she provided to Father as to community resources regarding housing:

        A. Community Helpers in an agency in Murfreesboro. Greenhouse Ministries
        is another agency that sometimes helps with finances.

        Q. Did you just give him those names, or did you arrange for a contact over
        there?

        A. I’m not sure. I know we discussed it several different times. I know I had
        given him phone numbers of contact places.

        Q. Okay. But did you contact these agencies and find out if they were willing
        to help [Father]?

        A. Not Greenhouse or Community Helpers.

        Q. Okay. So you don’t really know whether they would have been in a
        position to help him?

        A. He told me that Community Helpers had stated that they would help him
        pay his electricity deposit if he got into a place.

        Q. And then did you inquire as to this other place, how they would help him?

        A. No.

        Q. So from what you were aware of then, that [Father] might have help with
        an electric bill, but do you know if there was any assistance in helping him get
        into the place?

        A. Not that I’m aware of, and I know Justina with the guidance center was
        also helping him with that.


        6
        It appears that the “guidance center” provided Father with his medications and other services, but
there was no testimony from anyone at the guidance center.

                                                   -6-
       Q. Now, did you coordinate with Justina?

       A. That was part of his services that he receives through the guidance center.
       That was something that I spoke to him on a monthly basis and encouraged
       him to schedule that appointment.

       Q. My question was did you coordinate with Justina.

       A. No.

       Q. And is there any reason why you didn’t do that?

       A. There’s no reason for it. She’s trained in what she does, and that’s her job,
       is to help.

       Q. Do you think it might have been important to understand what she was
       doing for him?

       A. I do understand what she was doing for him.

       Q. And how–without talking with her, how were you able to understand?

       A. I’ve worked with her on other cases. I know that her job is assisting
       clients, linking them with resources in the community. That’s her job. She’s
       an adult case manager. So she would help [Father] gain housing, employment,
       anything he needs to succeed in life.

       Q. But that’s just your speculation, though, correct?

       A. That’s what she’s explained to me in the past is her job.

       Q. Okay. But not as it related to [Father]?

       A. No.

       Later in her testimony, Ms. Key acknowledged that, because of his diagnosis of
bipolar, Father would require a little more hand-holding than someone without a mental
health diagnosis. When asked what additional services and assistance she provided to Father,
Ms. Key answered that she went to his home to talk to him on several occasions about getting
over the hurdles he faced with respect to housing. She further testified that “a lot of it, he–he

                                               -7-
receives a lot of services already through counseling in the community and through mental
agencies.” Ms. Key admitted that she did not coordinate with those community resources.

       Ms. Key testified that, earlier in 2010, Father’s visitation had been changed from
unsupervised to supervised because of concerns that the girls could be exposed to
inappropriate activities there. Father had missed his curfew three times and had been
associating with an 18-year-old girl, and there were people coming in and out of the home
who had just been released from jail.

                                     Trial court decision

       The trial court entered its decision on December 6, 2010, and ordered that Father’s
parental rights as to Shaolin and Melissa be terminated on the grounds of (1) abandonment
by willful failure to support and (2) substantial noncompliance with the permanency plans.
Father appeals from this decision.

                   S TANDARDS FOR T ERMINATION OF P ARENTAL R IGHTS

        A parent has a fundamental right to the care, custody, and control of his or her child.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170,
174 (Tenn. 1996). Thus, the state may interfere with parental rights only if there is a
compelling state interest. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer,
455 U.S. 745 (1982)). Terminating a person’s parental rights “has the legal effect of
reducing the parent to the role of a complete stranger.” In re W.B., IV, No. M2004-00999-
COA-R3-PT, 2005 WL 1021618, at *6 (Tenn. Ct. App. Apr. 29, 2005). Pursuant to Tenn.
Code Ann. § 36-1-113(l)(1), “[a]n order terminating parental rights shall have the effect of
severing forever all legal rights and obligations of the parent or guardian of the child against
whom the order of termination is entered and of the child who is the subject of the petition
to that parent or guardian.”

        Our termination statutes identify “those situations in which the state’s interest in the
welfare of a child justifies interference with a parent’s constitutional rights by setting forth
grounds on which termination proceedings can be brought.” In re W.B., 2005 WL 1021618,
at *7 (citing Tenn. Code Ann. § 36-1-113(g)). To support the termination of parental rights,
petitioners must prove both the existence of one of the statutory grounds for termination and
that termination is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). A trial court is only required to find one
statutory ground in order to terminate parental rights. In re D.L.B., 118 S.W.3d 360, 367
(Tenn. 2003).



                                              -8-
        Because of the fundamental nature of the parent’s rights and the grave consequences
of the termination of those rights, courts must require a higher standard of proof in deciding
termination cases. Santosky, 455 U.S. at 769; In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn.
Ct. App. 1998). Thus, both the grounds for termination and the best interest inquiry must be
established by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c); In re
Valentine, 79 S.W.3d at 546. Clear and convincing evidence “establishes that the truth of
the facts asserted is highly probable, and eliminates any serious or substantial doubt about
the correctness of the conclusions drawn from the evidence.” In re M.J.B., 140 S.W.3d 643,
653 (Tenn. Ct. App. 2004) (citations omitted). Such evidence “produces in a fact-finder’s
mind a firm belief or conviction regarding the truth of the facts sought to be established.”
Id.

        In light of the heightened standard of proof in these cases, a reviewing court must
adapt the customary standard of review set forth by Tenn. R. App. P. 13(d). Id. at 654. As
to the trial court’s findings of fact, our review is de novo with a presumption of correctness
unless the evidence preponderates otherwise, in accordance with Tenn. R. App. P. 13(d). Id.
We must then determine whether the facts, as found by the trial court or as supported by the
preponderance of the evidence, clearly and convincingly establish the elements necessary to
terminate parental rights. Id.

                                          A NALYSIS

                                 I. Willful failure to support

       One of the statutory grounds for termination of parental rights is abandonment. Tenn.
Code Ann. § 36-1-113. One of the definitions for abandonment for purposes of terminating
parental rights is as follows:

       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). The first ground found by the trial court in this case
was the willful failure to support.

      For the purposes of this provision, “willfully failed to support” or “willfully failed to
make reasonable payments toward the support of the child” means the willful failure to

                                              -9-
provide monetary support or provide more than token payments toward the support of the
child for a period of four consecutive months. Tenn. Code Ann. § 36-1-102(1)(D). “Token
support” refers to support that is insignificant given the parent’s means under the
circumstances. Tenn. Code Ann. § 36-1-102(1)(B).

        Willfulness is an essential element of a determination of abandonment in the context
of parental termination. In re M.L.P., 281 S.W.3d 387, 392 (Tenn. 2009); In re C.T.B., No.
M2009-00316-COA-R3-PT, 2009 WL 1939826, at *4 (Tenn. Ct. App. July 6, 2009). A
person’s failure to support a child is willful when that person is “aware of his or her duty of
support, has the capacity to provide the support, makes no attempt to provide support, and
has no justifiable excuse for not providing support.” In re M.L.D., 182 S.W.3d 890, 896
(Tenn. Ct. App. 2005) (quoting In re Adoption of T.A.M., No. M2003-02247-COA-R3-PT,
2004 WL 1085228, at *4 (Tenn. Ct. App. May 12, 2004)). A parent who fails to support his
or her child(ren) because the parent is financially unable to provide support is not willfully
failing to provide support. O’Daniel v. Messier, 905 S.W.2d 182, 188-89 (Tenn. Ct. App.
1995).

       For purposes of Tenn. Code Ann. § 36-1-102(1)(A)(i), the relevant time period for
proof of abandonment is the four months preceding the filing of the petition, in this case the
period from December 13, 2009 through April 13, 2010. Father admitted that he had not
provided financial support for the children during this period, except for giving them an
allowance of five dollars a week.

        There is no proof in the record concerning Father’s income or ability to work during
the relevant time period. It is undisputed that Father was receiving disability benefits. He
testified that his disability stems from a hemangioma in his left leg and a bipolar disorder.
Father testified that, as of the time of the filing of the termination petition, his disability
benefits were barely enough to pay for his apartment; he was getting $447 a month in
disability benefits and $80 a month in food stamps. His rent was $460 per month. At the
time of the hearing, Father’s disability benefits had been increased to $674 a month and his
food stamps had been increased to $200 a month. Father testified that he had been looking
for employment to supplement his disability benefits. According to Father, he could make
up to $100 more a month and still receive disability benefits. He claimed to have found a
possible position at a computer store but had not yet received approval from his probation
officer.

       Based upon the evidence in the record, we must disagree with the trial court’s finding,
by clear and convincing evidence, that Father “has had the ability to increase his earnings and
has intentionally and willfully failed to obtain or even attempt employment which he knew
was needed to supplement his disability from December 13, 2009, until the filing of the

                                             -10-
petition.” As stated above, Father’s income at the time of the filing of the petition was not
enough to pay his rent. DCS did not put on any proof to establish that, during the four
months prior to the filing of the petition, Father was able, despite his disabilities, to earn
sufficient money to pay support for the children. In light of Father’s tight financial
predicament during the relevant time period and the absence of proof in the record of
Father’s ability to earn more during that time, we cannot agree with the court’s conclusion
that he “willfully and intentionally failed to financially support his children.”

                     II. Substantial noncompliance with permanency plans

        Pursuant to Tenn. Code Ann. § 36-1-113(g)(2), termination of parental rights may be
based upon “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.”7 With respect to this termination ground, DCS must generally prove by clear and
convincing evidence that “it made reasonable efforts to reunite the family and that these
efforts were to no avail.”8 In re Giorgianna H., 205 S.W.3d 508, 518 (Tenn. Ct. App. 2006).

       The key deficiency identified by DCS with regard to father’s compliance with the
permanency plans is his failure to find safe and appropriate housing. Father has
acknowledged the need to find safe and appropriate housing for his children and does not
dispute the reasonableness of this requirement. He does, however, challenge the
reasonableness of DCS’s efforts to help him find appropriate housing.

       Factors to be considered by courts in determining the reasonableness of DCS’s efforts
include the following:

        (1) the reasons for separating the parent from his or her children, (2) the
        parent’s physical and mental abilities, (3) the resources available to the parent,
        (4) the parent’s efforts to remedy the conditions that required the removal of
        the children, (5) the resources available to the Department, (6) the duration and
        extent of the parent’s remedial efforts, and (7) the closeness of the fit between


        7
         Tenn. Code Ann. § 37-2-403(a)(2) sets out the requirements for permanency plans. Subsection
(a)(2)(C) states that substantial noncompliance by the parent with the responsibilities listed in the
permanency plan provides grounds for termination of parental rights “if the court finds the parent was
informed of its contents, and that the requirements of the statement are reasonable and are related to
remedying the conditions that necessitate foster care placement.”
        8
        There are exceptions to the requirement of proving reasonable efforts, but they do not apply in this
case. See In re C.M.M., No. M2003-01122-COA-R3-PT, 2004 WL 438326, at *7 (Tenn. Ct. App. Mar. 9,
2004).

                                                   -11-
       the conditions that led to the initial removal of the children, the requirements
       of the permanency plan, and the Department’s efforts.

Id. at 519. For purposes of evaluating DCS’s efforts at reunification, those services required
to resolve the parents’ most pressing deficits should receive priority. See In re Randall B.,
Jr., No. M2006-00055-COA-R3-PT, 2006 WL 2792158, at *8 (Tenn. Ct. App. Sept. 28,
2006); In re J.L.E., No. M2004-02133-COA-R3-PT, 2005 WL 1541862, at *14-15 (Tenn.
Ct. App. June 30, 2005).

       While arguing in its brief that Father failed to substantially comply with the
requirements of the permanency plans and that the plans’ requirements were reasonable, DCS
does not address the reasonableness of its own efforts to assist Father. With regard to
Father’s most pressing need, safe and appropriate housing, we do not find clear and
convincing evidence that DCS made reasonable efforts. Ms. Key testified that she had talked
to Father on several occasions regarding his efforts to find housing and had suggested a few
organizations for him to call. She did not know whether these organizations could, in fact,
help Father find housing. For the most part, Ms. Key deferred to efforts purportedly made
by Justina at the guidance center, but acknowledged that she had not talked with the guidance
center about housing services for Father. DCS presented no testimony from anyone at the
guidance center to establish the housing services that may have been provided by that
organization.

       This court has previously stated that DCS “must do more than simply provide the
parents with a list of services and send them on their way.” In re Giorgianna H., 205 S.W.3d
at 519. The burden is on DCS to prove, by clear and convincing evidence, that it made
reasonable efforts. In this case, involving a parent with mental impairments who is on the
sex offender registry, the services documented by DCS hardly amount to reasonable efforts.
Standing aside and assuming other agencies are assisting the parent is neither reasonable nor
an effort.

                                        C ONCLUSION

       For all of these reasons, we reverse the decision of the juvenile court terminating
Father’s parental rights. Costs of appeal are assessed against DCS.


                                                       ______________________________
                                                            ANDY D. BENNETT, JUDGE




                                             -12-
