                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                        Assigned on Briefs December 10, 2014

                                   IN RE: BRYCE F.

                   Appeal from the Juvenile Court for Knox County
                           No. 51735    Tim Irwin, Judge


            No. E2014-01380-COA-R3-PT-FILED-DECEMBER 30, 2014


The State of Tennessee Department of Children’s Services (“DCS”) filed a petition seeking
to terminate the parental rights of Lori D.F.P. (“Mother”) to the minor child Bryce F. (“the
Child”). After a trial the Juvenile Court for Knox County (“the Juvenile Court”) terminated
Mother’s parental rights to the Child after finding and holding, inter alia, that grounds had
been proven by clear and convincing evidence to terminate Mother’s parental rights for
abandonment by willful failure to pay child support pursuant to Tenn. Code Ann. § 36-1-
113(g)(1) and Tenn. Code Ann. § 36-1-102(1)(A)(i); for failure to substantially comply with
the permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2); and for severe child
abuse pursuant to Tenn. Code Ann. § 36-1-113(g)(4), and that the termination was in the
Child’s best interest. Mother appeals to this Court. We find that the evidence does not
preponderate against the Juvenile Court’s findings made by clear and convincing evidence,
and we affirm.

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

D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which J OHN W. M CC LARTY,
and T HOMAS R. F RIERSON, II, JJ., joined.

Anne Greer, Knoxville, Tennessee, for the appellant, Lori D.F.P.

Herbert H. Slatery, III, Attorney General and Reporter; and Ryan L. McGehee, Assistant
Attorney General, for the appellee, State of Tennessee Department of Children’s Services.
                                         OPINION

                                        Background

               The Child was born drug exposed in February of 2013. He was removed from
Mother’s custody and placed in foster care in March of 2013. DCS filed the petition seeking
to terminate Mother’s parental rights to the Child on February 25, 2014, and the case
proceeded to trial in October of 2014. The parental rights of the Child’s legal father were
terminated prior to trial, and the Child’s biological father was deceased. The Child’s
biological father died of a drug overdose. The Child was approximately nineteen months old
at the time of trial and had been in the same foster home since he entered State custody.

               Brianna Monroe testified that she had been the Child’s DCS case manager
since the Child entered foster care in March of 2013. Ms. Monroe testified that Mother had
five children, four of whom were living at the time of trial. The three oldest of Mother’s
children were living with their great-grandparents. The fourth child had been born drug
exposed, discharged from the hospital to Mother’s care, and died in October of 2010. After
the death of their sibling, Mother’s three oldest children were removed from Mother’s care
and placed with their great-grandparents. The Child is the youngest of Mother’s children.

              Ms. Monroe testified that in November of 2011, Mother appeared to be doing
well and further testified that Mother “had completed the requirements that are asked of her
with her mental health assessment and she was doing fine. She reported that she wasn’t on
Methadone.” Mother testified in court at that time that she was not using methadone.

             The Child was born drug exposed in February of 2013 and tested positive for
methadone and benzos. Ms. Monroe testified that even though Mother had testified she was
not using methadone, Mother had been using methadone continuously. Ms. Monroe was
asked how the Child has done with regard to being born drug exposed, and she stated:

       [The Child] has done okay. He is thriving in his current foster home. But
       there are concerns - - there have been concerns with possible seizures in terms
       of being - - they are currently concerned with his growth. He is having to see
       a neurologist, a GI doctor, a nutritionist. They were able to rule out seizures.
       I think he still has an appointment for a follow-up there. He is seeing a GI
       regularly.




                                             -2-
              A permanency plan was developed for the Child in April of 2013 (“the Plan”)1 .
Pursuant to the Plan, Mother was to obtain and maintain stable housing, remain law abiding,
obtain an A&D assessment and follow all recommendations, submit to random drug screens,
follow all previous orders regarding her participation in methadone clinics, and pay child
support, among other things. Mother reported to Ms. Monroe that she was working. Mother
made a child support payment in October of 2013 and an IRS intercept was made in February
of 2014 for child support.

             Mother completed an alcohol and drug assessment with Solution Source in July
of 2013. The assessment recommended that Mother continue compliance with her
methadone treatment, medication management, case management and therapy, and individual
therapy. DCS paid for Mother to have therapy at Solution Source. Ms. Monroe testified that
Mother “complied [with the therapy] minimally and was discharged noncompliant September
26th, 2013.”

                Mother was to continue with her methadone program and develop a weaning
plan. Ms. Monroe testified that Mother did so initially, but that Mother quit the methadone
clinic at the end of November of 2013. Mother was working on stepping down her drug use
when she was in the methadone program. Mother reported that she was attending NA
meetings. Ms. Monroe asked Mother for documentation of this attendance, but did not
receive anything until a few days before trial.

              In March or April of 2014, after the Juvenile Court released DCS from making
reasonable efforts, Ms. Monroe received a call from Solution Source asking if DCS would
again pay for Mother’s treatment. Solution Source reported that Mother was noncompliant
with therapy in September of 2013 and noncompliant with case management in January of
2014.

                Ms. Monroe testified that she drug screened Mother during the four months
prior to trial. Ms. Monroe testified that Mother cooperated with three of the drug tests, and
failed to cooperate with three other drug tests. Mother tested positive for methadone at a
court hearing on December 10, 2013. Mother had a clean drug screen a few days later on
December 13, 2013, and then tested positive for methadone again at her next drug screen on
December 18, 2013.

             Since December 10, 2013, Ms. Monroe has attempted to drug screen Mother
four times. One of those times Ms. Monroe went to Mother’s home to drug test Mother and


       1
        A second permanency plan was created for the Child in October of 2013. The second plan
contained substantially the same requirements for Mother as the initial plan.

                                             -3-
Mother told her that she was about to call a cab to go to the ER because she was ill. Ms.
Monroe gave Mother a ride to the ER and did not drug screen her on that day. On April 7,
2014, Ms. Monroe called and texted Mother requesting that Mother come in for a drug test.
Mother responded to the text with a text message stating “hey,” but did not appear for testing.
Mother failed to show up for a drug screen on April 29, 2014. Ms. Monroe testified that she
had spoken to Mother, but Mother failed to show up. Ms. Monroe was able to drug screen
Mother three times during this time period. On one of those drug screens, Mother tested
positive for benzos, and did produce a prescription pill bottle.

              The Child entered foster care in March of 2013. During the time the Child has
been in foster care, Mother was drug tested with the following results:

On May 10, 2013, Mother tested positive for cocaine, benzos, opiates, and methadone.
On July 25, 2013, Mother tested positive for methadone, for which she had a prescription.
On August 15, 2013, Mother tested positive for methadone.
On September 23, 2013, Mother tested positive for methadone.
On October 9, 2013, Mother tested positive for methadone.
On October 30, 2013, Mother tested positive for methadone.
On December 10, 2013, Mother tested positive for methadone.
On December 13, 2013, Mother had a clean drug screen.
On December 18, 2013, Mother tested positive for methadone.
On January 15, 2014, Mother had a clean drug screen.
On February 4, 2014, Ms. Monroe took Mother to the ER and was unable to drug test
Mother.
On April 7, 2014, Ms. Monroe received the “hey” text in response to her request for Mother
to submit to a drug test, and Mother did not appear for testing.
On April 11, 2014, Mother had a clean drug screen.
On April 29, 2014, Mother failed to respond to the request for a drug test.
On May 13, 2014, Mother tested positive for benzos and produced a prescription.
On June 23, 2014, Mother had a clean drug screen.

               Ms. Monroe testified that Mother received new criminal charges in Anderson
County in September of 2013 and was arrested in Knox County in March of 2014. Neither
of these arrests involved child support.

               Liz Priode testified that she is an in-home counselor with Camelot Care Center,
a therapeutic foster care agency. Ms. Priode sees the Child in the foster home or at medical
appointments at least once a week and does visitation with Mother. Ms. Priode testified that:




                                              -4-
       [The Child] had many issues, which the foster parents could even elaborate on
       that. Of course he was born addicted, which he was on medications to help
       him get through that. He has weekly [Tennessee Early Intervention Services],
       which Ms. Monroe mentioned. He has had a lot of nutritional problems.

When asked about the Child’s nutritional problems, Ms. Priode stated: “He was on the low
scale and had - - I mean, he had many nutritional issues because of the developmental delays
with the drug abuse.” Ms. Priode testified that the Child has some special dietary needs and
is allergic to milk.

               The Child’s foster mother (“Foster Mom”) testified at trial. She explained that
her household consists of her, her husband, her two sons who are 15 and 9 years old, and five
foster children who are 8 years old, 5 years old, 2 years old, 17 months old, and 9 months old.
Foster Mom testified that she and her husband are prepared to adopt the Child if he becomes
available for adoption.

              Foster Mom was asked how they handle all the children in her household, and
she stated:

       Everybody has a buddy. The two newest ones [the 2 year old and the 9 month
       old] just came in Friday night, so we are adjusting a little bit. But every big
       kid has a little kid buddy. [The Child’s] buddy is actually my 15-year-old.
       That seems to be who he would rather be a buddy with than anybody else. So
       he gets him out of the car, walks him in to wherever we are going. But every
       big buddy has a little buddy and everybody has somebody’s hand when we go.

              Foster Mom was asked about the Child’s issues, and she stated:

       He came home on phenobarbital, so we weaned him off of that the way that
       they told us to. He actually does really, really well with all of his
       developmental milestones. TEIS comes and sees him once a week.

              I was the one who became concerned about the seizures but the
       neurologist has said that he is just thinking really hard. I didn’t know that one
       year olds think really hard but they do. And I guess the first time that I was
       worried about that was in August of 2013, because he was really little when
       he was thinking really hard. And so he has had two EEGs to make sure that
       he does not have seizures.




                                              -5-
               He came home on soy and you keep that at home. It is pre-made. But
       when we tried to transition to powder his GI tract didn’t tolerate that. He had
       diarrhea really bad. So we had to continue on concentrate as opposed to
       powder. And he did okay with that, but it was soy. Then when we tried to
       transition to regular milk, at one year of age, he didn’t tolerate that transition
       either, and that is how we became aware that he is allergic to all dairy
       products.

                And it’s not just milk, it’s everything. So even if he goes somewhere,
       and they fry chicken tenders that are battered with buttermilk in a fryer, then
       they fry his french fries in that same fryer, he will react. And that initially just
       started as GI symptoms, but now his face breaks out if he gets into something
       that is dairy based.

              Foster Mom was asked about the Child’s medical appointments, and she stated:

       We see Dr. Weinstein every three months. She suggested that that take place
       until he is three years of age unless he makes leaps and bounds. He has TEIS
       once a week. He sees the nutritionist every four to six weeks and a GI, the GI
       doctor that’s connected to the nutritionist every four to six weeks also. And
       they schedule opposite of each other, so we are there about every three weeks.

              He saw an endocrinologist because the GI specialist was worried that
       his bone age study was in the young range of where he would be normal, but
       the endocrinologist doesn’t want to follow up unless one of the other
       specialists say that he needs to come back.

              We have seen the neurologist once to confirm that the EEG says that he
       is not having seizures. And we have seen the urologist when he was
       circumcised in June.

               Mother testified that she was 33 years old at the time of trial. Mother admitted
that she spent time in prison for robbery and theft, and stated: “I went to prison at the age of
19. And I did go to prison for three years, about three and half [sic] years, then I paid my
debt to society.” Mother stated that the theft was of a car and the robbery was of a
convenient store with a pharmacy.

              Mother testified that her oldest child was 16 years old at the time of trial, and
that the Child was the youngest of her children. Mother admitted that she and the Child
tested positive for benzos at the time of the Child’s birth. Mother was enrolled in a

                                               -6-
methadone clinic at that time. When asked why the Child was born positive for benzos,
Mother stated: “Because I have serious panic attacks since I’ve been 12 and I’ve been on
medication. I had a panic attack and I took it, and I am not going to sit here and say I didn’t
because I did.” Mother was asked if she took any benzos prior to that time, and she stated:
“No. Twice, once right before [the Child] was born and I think two or three weeks,
something like that before he was born.”

              Mother testified that the last time she used methadone was December 2, 2013.
Mother was asked if she had used any since that day, and she stated: “No, ma’am.” Mother
was asked why she stopped going to the methadone clinic, and she stated: “Because Jennifer
came out in November and told me I would not have my kids back unless I was off the clinic.
So I took my last two weeks and I lowered myself down myself and got off of it. . . . And
it was hell.”

              When asked what she was doing to follow up with aftercare from her
methadone treatment, Mother stated: “I have got a sponsor and I go to NA meetings.”
Mother produced some sign-in sheets from NA meetings and stated that she tries to attend
two or three NA meetings a week. Mother produced a sign-in sheet for NA meetings
showing that she began attending meetings in March of 2014. Mother testified: “I didn’t just
start NA meetings in March. That’s the only ones I could find. And also, I didn’t know I
was supposed to be signing them in.” Mother then was asked if signing in to the meetings
was optional, and she stated: “Well, no. I signed their thing.” Mother was asked if she had
requested the NA records back to August of 2013, and she stated: “I didn’t know I could.”

               Mother was asked why she did not show up for the requested drug screen on
April 7th, and she stated: “If I am correct, April 7th I think I was at work and I told her I
would try to come the next day. And I came in and she wasn’t there, because that was the
exact date I am thinking of. And I did call her and texted.” Mother was asked why she did
not go on April 29th, and she stated: “Give me just one second. I am trying to remember.
If anything, I was working and - - .”

               Mother was asked about her arrest on March 31st, and she testified that it was
for driving on a suspended license. Mother stated that it was resolved because she pled guilty
for a first offense of driving on a suspended license. When questioned further, Mother
admitted that her license still is suspended. Mother testified that she got to court for the trial
by driving herself. Mother also admitted that she still owes fines.

              Mother testified that her arrest in Anderson County in September was for
“[p]ossession of Schedule II which was my Methadone. It was Methadone.” Mother then
stated that she was driving Bobby’s car, and the methadone was his “which he told my

                                               -7-
attorney. But my attorney passed away, so that was hearsay, so - - .” Mother was expecting
those charges to be dismissed. Mother testified that the methadone was in the car with her.
Mother was asked why the car was stopped, and she stated: “Because I have no driver’s
license. . . . I was at the bottom of my friend’s driveway.” Mother was questioned further,
and she stated:

       They stopped my car because I had - - I was setting there. . . . I was setting
       there waiting. I had a bad headache and I took some Benadryl. Every time I
       tell you-all the truth you-all make it - - . . . . This is what happened. I was - -
       I had a headache for three days. I thought it was sinuses. So I got some
       Benadryl. I took the Benadryl. And obviously it make me sleepy. So I was at
       the bottom of the driveway, in park, and fell asleep. And all of that stuff was
       in there, which I didn’t know.

Mother was asked if she was charged with vandalism based on impact that caused damage
to the police car, and she stated: “They hit my car obviously, because my car was rolling.”
When questioned further, Mother admitted that she had her methadone in a bottle in the car
and stated “but the rest of it was Bobby’s.” Mother testified that she does not remember
hitting the police car, but admitted that she remembers being charged with possession of a
Schedule II drug, evading arrest, and driving on a suspended license.

            Mother was asked about her arrest in March, and she stated that it was for
speeding. Mother then was shown a document, and she stated:

       This is not right. I was not asleep at a gas pump. I was texting at a gas pump,
       because I don’t text and drive. I was looking down. And the officer knew me,
       because he is my cousin’s friend. They knew I had no driver’s license. So
       when he come up to me, I said I don’t have a driver’s license. I am not going
       to lie to an officer that I have a driver’s license when I don’t.

             My driver’s license are [sic] suspended for failure to satisfy a citation.
       This did occur in Knox County, Tennessee. The citation was not issued
       because likely the offense will continue.

Mother then was asked why she had just stated she was speeding, and she stated: “Well, I
thought - - I have got another driving on suspended where I was speeding or something. . .
. Last year sometime.” When questioned further Mother stated: “I forgot. Yeah. But I am
not trying to lie. I have so much stuff going on that I have to literally keep a book of
appointments and issues going on that I have to keep a book.”



                                               -8-
               Mother was asked about how she gets to the Child’s visitations and
appointments, and she stated that she drove. She stated: “I know I’m not supposed to, but
I want to make it to my kids’ appointments.” Mother was asked if she was working on
getting her license back, and she stated that she owes thirteen hundred more dollars. She
stated that she is paying on it and tries to pay at least $50 per month.

               Mother testified that she has a job doing commercial cleaning of cabins and
that she is paid $9.75 per hour. Mother testified that she works “anywhere from 25 to 35 to
40 hours a week,” and that she works every week. Mother testified that she provided a letter
from her employer that stated that she had worked for them since 2008.

              Mother testified that she did make child support payments while the Child was
in State custody. According to Mother’s testimony, she paid $10 on August 27, 2013; $20
on October 7, 2013; $20 on February 25, 2014; $140 on May 16, 2014; and $220 on July 16,
2014. She further stated: “on that day of 5/16/2014 I paid 60 more dollars. And July 16th,
2014, I paid 220. And I paid more but I can’t find the receipts on those.” Mother testified
that she was trying to make payments “[a]s much as I can.”

             Mother was asked why she did not make regular child support payments from
October of 2013 to February of 2014, and she stated:

       Well, I was making as much as I could in October. I wasn’t getting that many
       hours due to all of the appointments I have. And losing Bobby - - you know,
       me and him split up in October. Actually, yeah, October. I didn’t have that
       much money, so I was trying to, how do you say it, pay my bills and take care
       of the other children. I don’t just have [the Child], I have obligations to my
       other children also and I, of course, try to give money to them too.

Mother admitted that in February there was a tax intercept for child support for the Child in
the amount of $1,025.

              Rebecca Murphy testified that she is Mother’s NA sponsor. Ms. Murphy met
Mother at a NA meeting at the end of August of 2013. Ms. Murphy stated that she and
Mother talk daily or every other day, and she sees Mother once a week at NA meetings. Ms.
Murphy testified that Mother had shared with her that one of Mother’s triggers was
depression and that Mother became an addict by using street drugs to treat depression. Ms.
Murphy testified that Mother has done all twelve steps of the program since August. When
asked what she does for Mother, Ms. Murphy stated: “I am a shoulder to cry on. I help her
through her daily struggles. . . . As well as she helps me through mine at times.”



                                             -9-
                Ms. Murphy testified that she and Mother have been in constant contact since
August of 2013. Despite testifying that she had almost daily contact with Mother since
August, Ms. Murphy admitted “I can’t recall about the relationship with her and Bobby; I
apologize.” Ms. Murphy did not know anything about who Mother was living with. Ms.
Murphy knew that Mother had been in methadone treatment, but when asked when the
treatment stopped, Ms. Murphy stated: “Oh, my goodness. Honestly I don’t know. I can’t
recall that. I don’t know.”

              Carolyn B. (“Great-Grandmother”), who has had custody of Mother’s three
oldest children, testified at trial. Great-Grandmother testified that she drove to trial, and that
Mother’s oldest child and Pamela F., who is Mother’s mother, rode in the car with Great-
Grandmother. Great-Grandmother was asked what she knows about Pamela F., and she
stated:

       Well, I know that she was supposed to not be allowed to take care of the kids.
       I don’t know about these, I am talking about some other kids. And - - because
       she tested positive for drugs - - this was in - - I don’t know what year it was - -
       and - - but since then she has only been doing what medication was prescribed
       to her.

When questioned further, Great-Grandmother admitted that she only knows what Pamela F.
tells her about whether Pamela F. still is using un-prescribed drugs. Great-Grandmother
testified that Pamela F. needed a ride to court because she was supposed to attend a hearing
regarding some of Great-Grandmother’s other great-grandchildren, whose mother went to
jail for driving without a license. Great-Grandmother was asked how much contact she has
allowed Pamela F. to have with Mother’s children, and she stated:

       Like maybe once every month or two she’ll come out for a few minutes. But
       she doesn’t have any supervision over them. . . . She usually just comes over
       there to say hi or something. I don’t know what she comes for. . . . I know,
       but she just visits. She don’t do anything.

Great-Grandmother was asked if she knew there was a no contact order preventing Pamela
F. from having contact with Mother’s children, and Great-Grandmother stated: “Well, I
thought it was just that she - - I didn’t know that she couldn’t like be around.”

              Great-Grandmother admitted that she had learned that Mother had a history of
delivering children who had been drug exposed in utero, but testified that she did not know
that Mother was using drugs during pregnancy. Great-Grandmother admitted that when two
of Mother’s older children went back to Mother’s custody for a period of time, the oldest of

                                              -10-
Mother’s children stayed with Great-Grandmother because this child and Mother would fight
and argue and couldn’t get along with one another.

               Mother’s oldest child (“Daughter”), who was sixteen years old at the time of
trial and pregnant, testified on Mother’s behalf. Daughter testified that she has seen the
Child only twice. Daughter would like for the Child to be a sibling to her and Mother’s other
children. When asked how Mother was doing, Daughter stated: “I think she is doing
excellent for her situation.”

              After trial, the Juvenile Court entered its detailed Termination of Parental
Rights and Final Decree of Guardianship order on August 28, 2014 after finding and holding,
inter alia:

       1. [The Child] was born during the marriage of [Mother] and [James W.P.] .
       . . . The child’s birth certificate shows [Bobbie D.F., Jr.] as the child’s father
       rather than his mother’s husband. The temporary custody of this child was
       awarded to the State of Tennessee, Department of Children’s Services, on
       March 20, 2013, by order of the Juvenile Court of Knox County, Tennessee;
       he has been in foster care continuously since that date. An order finding the
       child dependent and neglected was issued by this Court following a hearing on
       July 31, 2013. The termination petition was filed against [Mother] on
       February 25, 2014.

                                               II

       1.     This child was removed from [Mother’s] custody due to her substance
       abuse. [The Child] is [Mother’s] fifth child. Her fourth child, Audiona, was
       born on July 17, 2010. She had been exposed to methadone and
       benzodiazepines in utero and died a few months after being released from the
       hospital to her mother’s care. [Mother] was indicated for severe abuse (neglect
       death) by the Department of Children’s Services.

       2.     After Audiona’s death, [Mother’s] three older children (two of whom
       had also been born exposed to methadone in utero [sic]) were removed from
       her care and placed with relatives. She cooperated with services recommended
       by the Department of Children’s Services and pass [sic] random drug screens.
       At a hearing on November 30, 2011, she testified that she was no longer using
       methadone or any non-prescribed medication. She agreed that she would not
       take any methadone or suboxone, prescribed or otherwise, and that was part
       of this Court’s order. Over the objection of the Department of Children’s

                                              -11-
Services, custody of two children was returned to her on that date. [Mother’s]
oldest child remained in the custody of the child’s maternal great-grandparents.

3.     When [the Child] was born on February 20, 2013, he too was found to
have been exposed to methadone and benzodiazepines in utero and required
hospitalization for more than one month for treatment of Neonatal Abstinence
Syndrome. [Mother] had actually resumed using methadone in August 2011,
several months prior to her testimony in November 2011, and had used it
continuously thereafter. [The Child] was removed into foster care prior to his
discharge from the hospital; the children’s great-grandmother regained custody
of the other two children in [Mother’s] care at that time. [Mother] has not
regained custody of any of those children.

4.     Following a hearing on June 17, 2013, this Court found that “[the
Child] was the victim of SEVERE ABUSE, as defined in TCA §
37-l-102(b)(23)(A), by [Mother] based on

       a.      his mother’s awareness, during her pregnancy with this
       child, that her use of illicit benzodiazepine in combination with
       her prescribed methadone could cause severe bodily injury or
       death to her baby. The mother was provided with written
       warning by her methadone treatment program on November 6,
       2007, that methadone is transmitted to her unborn child and that
       using unauthorized drugs in addition to her prescribed
       methadone could harm her unborn child. She was provided with
       additional written warning on June 10, 2009, that combining
       benzodiazepine with methadone treatment could have serious
       health risks including decreased respiration, heart complications
       and potential death and that withdrawal syndrome might require
       hospitalization. The mother was aware that she had been
       indicated for severe abuse by the Department in 2010 after
       another of her children, [Audiona] (deceased), was exposed to
       methadone and benzodiazepines in utero. [The Child] had to be
       placed in the NICU for over a month, experienced symptoms of
       withdrawal, included [sic] an excessive high pitch cry, moderate
       to severe tremors, excessive sucking, poor feeding, and loose
       stools, and nasal stuffiness, and had to be treated with Diluted
       Oral Morphine and Phenobarbital while in the NICU and to be
       released home with Phenobarbital Elixir taper to address his
       withdrawal symptoms. This is evidence to the Court that the

                                      -12-
       child suffered as the result of the mother’s use of drugs that the
       mother knew could be harmful to the child; and
       b.     her use, despite this knowledge, of illicit benzodiazepine
       in combination with her prescribed methadone during her
       pregnancy with [the Child], leading him to test positive for
       benzodiazepine and methadone, to suffer though drug
       withdrawal, and resulting in the need for his admission to the
       NICU and treatment with morphine and phenobarbital.

5.      The permanency plan was developed at a Child & Family Team
Meeting on April 17, 2013, with [Mother’s] presence and participation.
Among other things, the plan required that [Mother] (a) complete an alcohol
and drug assessment, follow resulting recommendations, comply with all
previous orders regarding her participation in methadone clinics, and pass
random drug screens to demonstrate sobriety; (b) complete a mental health
assessment and follow resulting recommendations including taking any
medication as prescribed; (c) obtain and maintain safe, suitable housing free
from environmental hazards, domestic violence, illegal activity, or other risks
to the child; (d) obtain and maintain a legal source of income to support her
family; and (e) maintain her status as a law-abiding citizen. She was also
expected to visit regularly and to pay child support.

6.     [Mother] completed a mental health and alcohol and drug assessment
at The Solution Source on July 16, 2013, paid for by the Department of
Children’s Services. Based on her self-report, the evaluator recommended that
[Mother] continue compliance with her methadone treatment provider, receive
medication management, case management, and individual therapy. She was
to develop a weaning plan. [Mother] began all recommended services through
Solution Source, again at no cost to her. She testified that she was discharged
from therapy after five to seven sessions due to lack of insurance. The child’s
case manager disputed this version, insisting that [Mother] was discharged
from both individual therapy (in September 2013) and from case management
services (in January 2014) for non-compliance, facts known to the case
manager because the Department of Children’s Services was being billed for
[Mother’s] treatment. This Court previously resolved that issue at a hearing
on February 24, 2014, where the Court found that [Mother] was not in
compliance with the plan, in part, because she was not participating in mental
health counseling and had been released from her mental health services due
to non-compliance. As part of that order, this Court relieved the Department
of Children’s Services from making further reasonable efforts to reunify this

                                      -13-
child with his mother. When [Mother] subsequently attempted to resume
mental health services, she was advised that the Department would no longer
pay for them.

7.      During the first several months of this foster care episode, [Mother]
reported that she was continuing to cooperate with a methadone clinic in
Georgia and that she had developed a long-term weaning plan. Her positive
screens for methadone were consistent with the report. At a hearing in this
Court on December 10, 2013, [Mother] testified that she had quit treatment
and that her last use was a “take-home” dose of 10 mgs. on December 2, 2013.
She was nevertheless positive for methadone on a drug screen obtained by
Court staff, a drug that should not be present more than 72 hours after use.
She was ordered by the Court to return for urine drug screens on December 13,
2013, and December 18, 2013. The first of those screens was clean; the
second was again positive for methadone. Although [Mother] has failed to
appear for several requested drug screens, she has not had a “dirty” screen
during this calendar year. It appears to the Court that she is now off
methadone. If so, she is one of the very, very few; it’s a difficult thing to do.
But it’s very, very late.

8.     The Court is not particularly concerned about the issue of housing. It
is not exactly clear how she is managing to stay in this home, but the
Department’s testimony was that she had been there for an extended period of
time and there are no safety issues. She has maintained employment for
several years.

9.      [Mother] currently has criminal charges pending in both Anderson and
Knox Counties. She was arrested in Anderson County in September 2013 and
again in Knox County in March 2014. She initially testified that she had been
charged in Anderson County with possession of a Schedule II substance
(methadone) in her car. Upon further questioning, she related that she had
been found slumped over the wheel in a car, blocking the bottom of a
driveway, with methadone pills and liquid methadone in the car, and that she
had been charged with Possession of Schedule II Drugs, Evading Arrest, and
Driving on a Suspended License. Those charges are set for trial. She initially
testified that her March arrest was for driving on a suspended license after she
had been stopped for speeding, that she had resolved that matter by a guilty
plea, and that her license remained suspended. Upon for further questioning,
she stated that she had been arrested while texting at a gas pump and that her
Knox County charges are also still pending and set for trial. She said she must

                                      -14-
have gotten those particular charges confused with another recent arrest for
driving on a suspending [sic] license after being stopped for speeding. She
continues to drive.

10.  Upon those facts, the Court finds that [Mother] been found [sic] to have
committed severe child abuse against this child.

11.     The Court further finds that [Mother] has abandoned this child in that
[Mother] has willfully failed to support or make reasonable payments toward
the support of the child for four (4) consecutive months immediately preceding
the filing of the petition in this cause. [Mother] testified that she is employed
cleaning cabins 25 to 35 to 40 hours per week, every single week, and that she
has worked for this same employer since 2008. She provided a letter from her
employer confirming that testimony and noting her hourly rate of $9.75. On
that income, she made token payments toward the support of this child in July,
August, and September, and on October 7, 2013 (beginning the month after her
appearance in the Child Support Division of this Court). She then made no
further payments at all until after the termination petition was filed. That same
week, an IRS intercept obtained more than One Thousand Dollars. Since the
termination petition was filed, [Mother] has resumed her modest payments.
During the time period relevant to this petition, [Mother] had the ability to
work and had employment, as she testified. If she had not been working, there
would have been no refund for IRS to intercept. She simply chose to use her
funds for other purposes.

12.    The Court further finds that [Mother] has failed to comply in a
substantial manner with those reasonable responsibilities set out in the
permanency plan related to remedying the conditions which necessitate foster
care placement. She completed the required assessments but not the
recommended treatment. She got off methadone, although the procedure she
used may not have been the one envisioned when the plan was developed. She
was supposed to be law-abiding and resolve any legal issues. She hasn’t done
that. She has criminal charges pending and she is still driving around without
a license.

13.    Because the Court believes that [Mother] has managed to get off
methadone and is not using other illicit drugs, the Court cannot find the ground
of persistence of conditions.




                                      -15-
                                        III

1.     [Mother] has not made such an adjustment of circumstance, conduct,
or conditions as to make it safe and in the child’s best interest to be in her
home despite reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear possible.
In addition to her own issues, she is surrounded by a family of addicts, none
of whom are available to her as an appropriate support system. She has
maintained regular visitation with the child, at least recently, and he knows
who she is. But he has been living in the same foster home since his discharge
from the hospital in March 2013 and is well integrated into that family. He has
multiple issues secondary to his in utero drug exposure, including feeding
difficulty and multiple food allergies. He participates in therapy with
Tennessee Early Intervention Services weekly and is followed by a
gastroenterologist, a nutritionist, and a pediatric physiatrist. He was evaluated
by a neurologist for possible seizure activity and by an endocrinologist due to
issues regarding bone development. A change of caretakers and physical
environment is likely to have a detrimental effect on the child’s emotional,
psychological and medical condition. [Mother] has committed severe child
abuse toward this child. She continues to engage in criminal activity. And
[Mother] has not paid child support consistent with the child support
guidelines promulgated by the Department of Human Services pursuant to
T.C.A. 36-5-101.

2.    The child’s alleged biological father is deceased. Any parental rights
of [Mother’s] husband have been terminated by prior order of this Court.

3.    The Department of Children’s Services has made reasonable efforts
toward achieving permanency for this child.

4.     The child is entitled to a safe, secure and loving home. He is now
thriving in the care of the only family he has ever known and has the chance
to achieve permanency through adoption.

5.     It is, therefore, in the best interest of [the Child] and the public that all
of [Mother’s] parental rights to this child be terminated and the complete
custody, control, and full guardianship of the child be awarded to the State of
Tennessee, Department of Children’s Services, with the right to place him for
adoption and to consent to such adoption in loco parentis.



                                       -16-
Mother appeals the termination of her parental rights to the Child to this Court.

                                          Discussion

               Although not stated exactly as such, Mother raises four issues on appeal: 1)
whether the Juvenile Court erred in finding that clear and convincing evidence was shown
of grounds to terminate Mother’s parental rights to the Child for abandonment by willful
failure to pay support pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann.
§ 36-1-102(1)(A)(i); 2) whether the Juvenile Court erred in finding that clear and convincing
evidence was shown of grounds to terminate Mother’s parental rights to the Child for
substantial non-compliance with a permanency plan pursuant to Tenn. Code Ann. § 36-1-
113(g)(2) ; 3) whether the Juvenile Court erred in finding that clear and convincing evidence
was shown of grounds to terminate Mother’s parental rights to the Child for severe abuse
pursuant to Tenn. Code Ann. § 36-1-113(g)(4); and, 4) whether the Juvenile Court erred in
finding by clear and convincing evidence that it was in the Child’s best interest for Mother’s
parental rights to be terminated.

              Our Supreme Court reiterated the standard of review for cases involving
termination of parental rights stating:

              This Court must review findings of fact made by the trial court de novo
       upon the record “accompanied by a presumption of the correctness of the
       finding, unless the preponderance of the evidence is otherwise.” Tenn. R.
       App. P. 13(d). To terminate parental rights, a trial court must determine by
       clear and convincing evidence not only the existence of at least one of the
       statutory grounds for termination but also that termination is in the child’s best
       interest. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Tenn. Code
       Ann. § 36-1-113(c)). Upon reviewing a termination of parental rights, this
       Court’s duty, then, is to determine whether the trial court’s findings, made
       under a clear and convincing standard, are supported by a preponderance of the
       evidence.

In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006).

              In Department of Children’s Services v. D.G.S.L., this Court discussed the
relevant burden of proof in cases involving termination of parental rights stating:

       It is well established that “parents have a fundamental right to the care,
       custody, and control of their children.” In re Drinnon, 776 S.W.2d 96, 97
       (Tenn. Ct. App. 1988) (citing Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208,

                                             -17-
       31 L. Ed. 2d 551 (1972)). “However, this right is not absolute and parental
       rights may be terminated if there is clear and convincing evidence justifying
       such termination under the applicable statute.” Id. (citing Santosky v. Kramer,
       455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)).

               Termination of parental or guardianship rights must be based upon a
       finding by the court that: (1) the grounds for termination of parental or
       guardianship rights have been established by clear and convincing evidence;
       and (2) termination of the parent’s or guardian’s rights is in the best interests
       of the child. Tenn. Code Ann. § 36-1-113(c). Before a parent’s rights can be
       terminated, it must be shown that the parent is unfit or substantial harm to the
       child will result if parental rights are not terminated. In re Swanson, 2 S.W.3d
       180, 188 (Tenn. 1999); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct.
       App. 1998). Similarly, before the court may inquire as to whether termination
       of parental rights is in the best interests of the child, the court must first
       determine that the grounds for termination have been established by clear and
       convincing evidence. Tenn. Code Ann. § 36-1-113(c).

Dep’t of Children’s Servs. v. D.G.S.L., No. E2001-00742-COA-R3-JV, 2001 Tenn. App.
LEXIS 941, at **16-17 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed. Clear
and convincing evidence supporting any single ground will justify a termination order. E.g.,
In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

             We first consider whether the Juvenile Court erred in finding that clear and
convincing evidence was shown of grounds to terminate Mother’s parental rights to the Child
for abandonment by willful failure to pay support pursuant to Tenn. Code Ann. § 36-1-
113(g)(1) and Tenn. Code Ann. § 36-1-102(1)(A)(i). In pertinent part, Tenn. Code Ann. §
36-1-113(g) provides:

       (g) Initiation of termination of parental or guardianship rights may be based
       upon any of the grounds listed in this subsection (g). The following grounds
       are cumulative and non-exclusive, so that listing conditions, acts or omissions
       in one ground does not prevent them from coming within another ground:

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

Tenn. Code Ann. § 36-1-113(g)(1) (2014). As pertinent, Tenn. Code Ann. § 36-1-102
provides:



                                             -18-
       (1)(A) For purposes of terminating the parental or guardian rights of a parent
       or parents or a guardian or guardians of a child to that child in order to make
       that child available for adoption, “abandonment” means that:

               (i) For a period of four (4) consecutive months immediately preceding
       the filing of a proceeding or pleading to terminate the parental rights of the a
       [sic] parent or parents or a guardian or guardians of the child who is the
       subject of the petition for termination of parental rights or adoption, that the
       a [sic] parent or parents or a guardian or guardians 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) (2014).

              With regard to this issue, the Juvenile Court specifically found and held:

               The Court further finds that [Mother] has abandoned this child in that
       [Mother] has willfully failed to support or make reasonable payments toward
       the support of the child for four (4) consecutive months immediately preceding
       the filing of the petition in this cause. [Mother] testified that she is employed
       cleaning cabins 25 to 35 to 40 hours per week, every single week, and that she
       has worked for this same employer since 2008. She provided a letter from her
       employer confirming that testimony and noting her hourly rate of $9.75. On
       that income, she made token payments toward the support of this child in July,
       August, and September, and on October 7, 2013 (beginning the month after her
       appearance in the Child Support Division of this Court). She then made no
       further payments at all until after the termination petition was filed. That same
       week, an IRS intercept obtained more than One Thousand Dollars. Since the
       termination petition was filed, [Mother] has resumed her modest payments.
       During the time period relevant to this petition, [Mother] had the ability to
       work and had employment, as she testified. If she had not been working, there
       would have been no refund for IRS to intercept. She simply chose to use her
       funds for other purposes.

              The evidence in the record on appeal shows that other than the IRS intercept,
Mother made minimal and sporadic payments of child support during the entire time that the
Child has been in State custody, including the relevant four month period. As this Court
noted in In re: Alyssa Y.:




                                             -19-
       The fact that Mother’s tax refund was intercepted and applied to her child
       su p p o rt o b lig a tio n is n ot relevant.         In re L avanie L .,
       E2008-02622-COA-R3-PT, 2009 Tenn. App. LEXIS 673, 2009 WL 3231091
       at *6 (Tenn. Ct. App. Oct. 8, 2009). As this Court noted in Lavanie, the
       interception of a tax refund does not constitute a voluntary payment of child
       support. Id. Further, the fact that Mother was due a tax refund shows that she
       had earnings from which support could have been paid. Id.

In re: Alyssa Y., No. E2012-02274-COA-R3-PT, 2013 Tenn. App. LEXIS 391, *27 (Tenn.
Ct. App. June 17, 2013), no appl. perm. appeal filed.

                The evidence in the record on appeal shows, as found by the Juvenile Court,
that Mother has been employed since 2008 with the same employer, and Mother herself
testified that she works “anywhere from 25 to 35 to 40 hours a week,” every week and is paid
$9.75 per hour.

               DCS filed the petition seeking to terminate Mother’s parental rights on
February 25, 2014. Thus, the relevant four month period preceding the filing of the petition
ran from October 25, 2013 through February 24, 2014. Mother’s own testimony established
that the only child support payment made during the statutorily relevant period was the IRS
intercept on February 21, 2014. Mother herself made no voluntary child support payments
whatsoever during that four month period. The evidence in the record on appeal does not
preponderate against the Juvenile Court’s finding by clear and convincing evidence that
grounds were proven to terminate Mother’s parental rights to the Child for willful failure to
support pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-
102(1)(A)(i).

               We next consider whether the Juvenile Court erred in finding that clear and
convincing evidence was shown of grounds to terminate Mother’s parental rights to the Child
for substantial non-compliance with a permanency plan pursuant to Tenn. Code Ann. § 36-1-
113(g)(2). Parental rights may be terminated upon a finding by clear and convincing
evidence that: “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(g)(2) (2014).

              With regard to this issue, the Juvenile Court found and held, inter alia:

              The Court further finds that [Mother] has failed to comply in a
       substantial manner with those reasonable responsibilities set out in the
       permanency plan related to remedying the conditions which necessitate foster

                                            -20-
       care placement. She completed the required assessments but not the
       recommended treatment. She got off methadone, although the procedure she
       used may not have been the one envisioned when the plan was developed. She
       was supposed to be law-abiding and resolve any legal issues. She hasn’t done
       that. She has criminal charges pending and she is still driving around without
       a license.

               We need not reiterate in full the Juvenile Court’s findings relative to this issue
as they are quoted fully above. We find particularly telling Mother’s own testimony when
questioned about her arrests wherein she stated: “I forgot. Yeah. But I am not trying to lie.
I have so much stuff going on that I have to literally keep a book of appointments and issues
going on that I have to keep a book.” The record also contains Mother’s admission that
despite her multiple arrests for driving on a suspended license, Mother continues to drive
and, in fact, even drove to court on the day of trial. The evidence in the record on appeal
does not preponderate against the Trial Court’s findings made by clear and convincing
evidence relative to this issue.

              Next, we consider whether the Juvenile Court erred in finding that clear and
convincing evidence was shown of grounds to terminate Mother’s parental rights to the Child
for severe abuse pursuant to Tenn. Code Ann. § 36-1-113(g)(4). As pertinent, Tenn. Code
Ann. § 36-1-113(g)(4) provides grounds for termination as follows:

       (4) The parent or guardian has been found to have committed severe child
       abuse as defined in § 37-1-102, under any prior order of a court or is found by
       the court hearing the petition to terminate parental rights or the petition for
       adoption to have committed severe child abuse against the child who is the
       subject of the petition or against any sibling or half-sibling of such child, or
       any other child residing temporarily or permanently in the home of such parent
       or guardian;

Tenn. Code Ann. § 36-1-113(g)(4) (2014).

              In her brief on appeal, Mother argues and raises as an issue that DCS cannot
rely upon this ground to terminate Mother’s parental rights because DCS entered into a
permanency plan with Mother. Mother, however, did not raise this issue at trial. A careful
and thorough review of the record on appeal reveals that during final argument at trial
Mother’s attorney stated: “As to the ground of severe child abuse, obviously I don’t have
much to argue about there. There is an order that has been entered.” Because Mother never




                                              -21-
raised this issue until appeal, we find that Mother has waived the issue2 . See In re: Keara
J., 376 S.W.3d 86, 104 (Tenn. Ct. App. 2012) ( holding, inter alia, that because the parent
never raised until appeal the issue of whether DCS could rely upon the ground of severe
abuse even though DCS had entered into a permanency plan with the parent, the parent had
waived the issue).

             With regard to the ground of severe abuse, the Juvenile Court specifically
found and held:

        Following a hearing on June 17, 2013, this Court found that “[the Child] was
        the victim of SEVERE ABUSE, as defined in TCA § 37-l-102(b)(23)(A), by
        [Mother] based on

                a.      his mother’s awareness, during her pregnancy with this
                child, that her use of illicit benzodiazepine in combination with
                her prescribed methadone could cause severe bodily injury or
                death to her baby. The mother was provided with written
                warning by her methadone treatment program on November 6,
                2007, that methadone is transmitted to her unborn child and that
                using unauthorized drugs in addition to her prescribed
                methadone could harm her unborn child. She was provided with
                additional written warning on June 10, 2009, that combining
                benzodiazepine with methadone treatment could have serious
                health risks including decreased respiration, heart complications
                and potential death and that withdrawal syndrome might require
                hospitalization. The mother was aware that she had been
                indicated for severe abuse by the Department in 2010 after
                another of her children, [Audiona] (deceased), was exposed to
                methadone and benzodiazepines in utero. [The Child] had to be
                placed in the NICU for over a month, experienced symptoms of
                withdrawal, included [sic] an excessive high pitch cry, moderate
                to severe tremors, excessive sucking, poor feeding, and loose
                stools, and nasal stuffiness, and had to be treated with Diluted
                Oral Morphine and Phenobarbital while in the NICU and to be


        2
         Even if we found that Mother had not waived this issue, clear and convincing evidence supporting
any single ground will justify a termination order and, as discussed fully above, we affirm the Juvenile
Court’s finding of the existence two other separate grounds for termination. E.g., In re Valentine, 79 S.W.3d
539, 546 (Tenn. 2002).


                                                    -22-
              released home with Phenobarbital Elixir taper to address his
              withdrawal symptoms. This is evidence to the Court that the
              child suffered as the result of the mother’s use of drugs that the
              mother knew could be harmful to the child; and
              b.     her use, despite this knowledge, of illicit benzodiazepine
              in combination with her prescribed methadone during her
              pregnancy with [the Child], leading him to test positive for
              benzodiazepine and methadone, to suffer though drug
              withdrawal, and resulting in the need for his admission to the
              NICU and treatment with morphine and phenobarbital.

Mother admitted that she and the Child tested positive for benzos at the time of the Child’s
birth. She further admitted that she took benzos “[t]wice, once right before [the Child] was
born and I think two or three weeks, something like that before he was born.” The Juvenile
Court also found, as pertinent to the ground of severe abuse:

       [Mother’s] fourth child, Audiona, was born on July 17, 2010. She had been
       exposed to methadone and benzodiazepines in utero and died a few months
       after being released from the hospital to her mother’s care. [Mother] was
       indicated for severe abuse (neglect death) by the Department of Children’s
       Services.

The evidence in the record on appeal does not preponderate against the Juvenile Court’s
findings made by clear and convincing evidence relative to this issue.

              Finally, we consider whether the Juvenile Court erred in finding by clear and
convincing evidence that it was in the Child’s best interest for Mother’s parental rights to be
terminated. When considering whether termination is in a child’s best interest, a court is to
consider the non-exclusive list of factors contained in Tenn. Code Ann. § 36-1-113(i). Our
careful and thorough review of the record on appeal reveals that the Juvenile Court did
consider the relevant factors when making its determination that clear and convincing
evidence existed that it was in the Child’s best interest for Mother’s parental rights to be
terminated. We need not reiterate the Juvenile Court’s detailed findings as they are quoted
fully above. The evidence in the record on appeal does not preponderate against the Juvenile
Court’s findings made by clear and convincing evidence relevant to this issue.

               As grounds for termination were proven by clear and convincing evidence and
it was shown by clear and convincing evidence that the termination of Mother’s parental
rights was in the Child’s best interest, we affirm the Juvenile Court’s August 28, 2014 order
terminating Mother’s parental rights to the Child.

                                             -23-
                                        Conclusion

               The judgment of the Juvenile Court is affirmed, and this cause is remanded to
the Juvenile Court for collection of the costs below. The costs on appeal are assessed against
the appellant, Lori D.F.P.




                                                    _________________________________
                                                    D. MICHAEL SWINEY, JUDGE




                                             -24-
