STATE OF TENNESSEE           )
DEPA RTME NT OF CHILD REN’S  )
SERVICES,                    )

           Plaintiff,
                             ) Appeal No.
                             ) 01A01-9809-JV-00460
                                                          FILED
                             )
                                                     July 16, 1999
v.                           )
                             ) Davidso n Juvenile  Cecil Crowson, Jr.
REBECCA PHILLIPS,            )                    Appellate Court Clerk
                             )
           Defend ant,       )
                             )
IN THE MATTER OF: KELLY      )
GOOCH, LULA GOOCH, AND LORI )
PHILLIPS, CHILDREN UNDER THE )
AGE OF 18 YEARS.             )


                    COURT OF APPEALS OF TENNESSEE
                     MIDDLE SECTION AT NASHVILLE


APPEALED FROM THE JUVENILE COURT OF DAVIDSON COUN TY
AT NASHVILLE, TENNESSEE

THE HONORABLE ANDREW J. SHOOKOFF, JUDGE


KATH LEEN G. MO RRIS
P.O. Box 128091
Nashville, Tennessee 37212
      Attorney for Defendant

PAUL G. SUM MERS, Attorney General and Reporter and
DOU GLA S EAR L DIM OND , Assistant A ttorney Gene ral,
General Civil Division
Cordell Hull Building, 2nd Floor
425 Fifth Avenu e North
Nashville, Tennessee 37243-0699
       Attorney for Plaintiff


                        AFFIRMED AND REMANDED




                                             HERSCHEL P. FRANKS, JUDGE




CONCUR:
GODD ARD, P.J.
SUSAN O, J.
                                      O P I N IO N

              On petition of the D epartment of Ch ildrens Services, the Trial Cou rt

terminated the parental rights of Rebecca Ruth Phillips for her three minor children,

Kelly Louis Gooch, Lula May Gooch, and Lori Ann Phillips. The mother has

appea led.

              Following an evidentiary hearing, the Trial Court found:

                     Ms. Phillips’ emotion, psychological and physical problems have
              been compounded by her very limited economic resources and by the
              lack of a co nsistent socia l support system . Ms. Phillips ’ relationship
              with her own mother has been so unhealthy for here that it has been a
              source of problems rather than a support for dealing with problems. Ms.
              Phillips h as ha d a numb er of relat ions hips with men . Unfortunately,
              those relationships did not prove to be the positive, stable, supportive
              relationships she had b elieved they w ould be w hen she e ntered into
              them.

                     Ms. Phillips has for a variety of reasons had difficulty following
              throug h with t he requ iremen ts of the plan of care in a consiste nt man ner.
              She wo uld periodic ally make pro gress in the a rea of hou sehold
              cleanliness, personal hygiene and household safety, but she has had
              difficulty sustaining this progress and would slide back. Follow through
              on paren ting classes an d counse ling has also been inco nsistent. Des pite
              the fact that she has long acknowledged the unhealthy nature of her
              relationship with her mother, Ms. Phillips continued to live with her
              mother. Ms. Phillips at a previous hearing lied to the Court saying that
              she had separated from her mother when she had not. She has since
              established a househo ld separate and apart from her mother.

                      The Court therefore appreciates the progress that Ms. Phillips has
              made in recent months - the fact that she has moved into a better living
              situation, that she has become less dependent on others by learning how
              to use the bus system, and that she took action to terminate a
              relationship with a boyfriend who had become abusive, and that she now
              has a boyfriend with whom she is hopeful she will be in a committed
              and positive relationship.

              ...

                     The critical question in this case is whether Ms. Phillips has made
              enough progress toward alleviating the conditions that have prevented
              her from being able to provide a safe and nurturing home for her
              children su ch that reun ification w ith her childre n could sa fely occur in
              the foreseeable future.

                    It is with great sadness and regret that the Court must conclude
              that Ms. Phillips simply has not made sufficient progress, despite her

                                             2
              efforts and the conside rable efforts of the D epartment of Ch ildren’s
              Services to assist her.

                      Ms. Phillips’ testimony regarding her present situation - the
              stable and s upportive r elationship w hich she b elieves she e njoys with
              her present boyfriend - is reminiscent of previous testimony regarding
              other relationships that Ms. Phillips believed were going to be good for
              her and the children but which later turned out not to be positive.

                      Ms. Phillips testimony regarding her recent move to a home
              which she believes is safe and sanitary has to be weighed in the context
              of the past yea r that has seen continuing problems with hou sehold
              cleanliness despite periodic but unsustained improvements.

                     Ms. Phillips’ testimony of her recent commitment to pursue
              counseling must again be measured against the past year of lack of
              follow through. This lack of follow through is especially concerning
              because Ms. Phillips was aware of the critical importance of making
              progress on the Plan of Care, given the Court’s previous action
              terminating parental rights of her other two children.

              ...

                      The Court does appreciate the special problems and obstacles
              confronting Ms. Phillips that have made progress so inconsistent and
              slow. But, when progress has been so slow and halting, the law requires
              that the Court consider whether the progress is occurring at a pace that
              wou ld all ow r eturn of custody in the f ores eeab le fu ture. Unfortunately,
              the proof in this case is clear and convincing that sufficient progress has
              not been made to alleviate those conditions that led to the neglect of the
              children and that there is little likelihood for progress to be made on the
              order that it would need to to allow return of the children to Ms. Phillips
              in the foreseeable future. The state has established grounds for
              termination of Ms. Phillips’ parental rights based on persistence of
              conditions.

                       The state’s proof also establishes that it is in the children’s best
               interest for M s. Phillips’ pare ntal rights to be terminated. T hey need to
               move toward permanency which can only reasonably be assured through
               termination of parental rights and adoption.

               The mother’s first issue is that the Trial Court erred in finding clear and

convincing evidence that the persistence of conditions which led to the removal of the

children from her would continue with little likelihood of early remediation. The

mother’s argument essentially concedes that the conditions which led to the removal

existed, but th at she has ch anged an d is and w ill in the future m aintain a ho me with

good conditions fo r the children in accordanc e with the plan. But the T rial Court

                                              3
found, in accordance with the statute, that there is little likelihood that these

conditions w ill be remedie d at an early date so that the ch ildren could be safely

returne d to M s. Phillips . See T.C.A. § 36-1-113 (g)(3)(a)(ii). Th e State, in resp onse to

this contention, asserts that Ms. Phillips had failed over two years to remedy the

conditions in her life that prevented the children’s return, and that evidence had

established her home remained unfit for the children by reason of filth and pest

infestation, until at least March of 1998. The State also stresses Ms. Phillips’

persistent relatio nships w ith people w ho presen ted actual an d threatenin g danger s to

the children. While Ms. Phillips had made some progress in the three months

immediately preceding the hearing, as the Trial Judge acknowledges, there is clear and

convincing evidence that the conditions in the home leading to the children’s removal

will continu e. Accord ingly, we affirm the judgm ent of the T rial Court, find ing that it

is not in the be st interest of the children to re main in the home en vironmen t.

               The statute requires that a fter a Cou rt has determ ined grou nds to

terminate parental rights, it must also find by clear and convincing evidence that the

termination is in the child’s best interest. T.C.A. §36-1-113(c). We also conclude

there is clear and convincing evidence that termination is in the children’s best

interest.

               On appeal, Ms. Phillips confronts the best interest issue only as to one

child, Lori. The record reveals that at trial Ms. Phillips proposed, as an alternative,

that the Court terminate her righ ts to Kelly and Lula, but allow h er to rear Lori. In

response to this appeal, the Trial Judge said:

               Lori has considerable special needs. Ms. Phillips has not shown the
               ability to meet the very basic requirements of providing a safe, healthy
               household for children, let alone provide the very skills and care that
               Lori w ill require to over come the spe cial diff iculties sh e is exp eriencin g.

The reco rd establishes by clear and c onvincing evidence that Lori is de velopme ntally

and beha viorally the need iest of the ch ildren, and th at Ms. Ph illips would be unable to

                                               4
handle the task of atten ding to Lori’s s pecial n eeds.

               Accord ingly, we affirm the judgm ent of the T rial Court an d remand with

cost of the a ppeal asses sed to the ap pellant.




                                              ________________________
                                              Herschel P. Franks, J.


CONCUR:




___________________________
Houston M. Godd ard, P.J.




___________________________
Charles D. Susano, Jr., J.




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