                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                     June 14, 2005 Session

                IN THE MATTER OF: C.M.C., C.L.C., and D.A.M.

                  Direct Appeal from the Juvenile Court for Greene County
                           No. 16386    Thomas J. Wright, Judge



                  No. E2005-00328-COA-R3-PT - FILED AUGUST 3, 2005


The trial court terminated Mother’s parental rights based on abandonment, substantial
noncompliance with a permanency plan, persistence of conditions, and a finding that termination was
in the best interests of the children. Mother appeals. We reverse.

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

DAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and ALAN E. HIGHERS, J., joined.

M. Brent Hensley, Greeneville, Tennessee, for the appellant, SAF.

Paul G. Summers, Attorney General and Reporter, and Sharon G. Hutchins, Assistant Attorney
General, for the Petitioner/Appellee, State of Tennessee, Department of Children’s Services.

                                             OPINION

        On December 31, 2002, the trial court removed C.M.C. (born 5/4/1992), C.L.C. (born
7/11/1995), and D.A.M. (born 7/1/1999) (collectively, “the children”) from Mother’s custody upon
a petition for temporary custody filed by the Department of Children’s Services (“DCS”). In its
petition, DCS alleged that Mother had been evicted from her home, had a history of substance abuse,
and was living with a man, Billy McClain (Mr. McClain), who was known by DCS to have been
abusive to Mother. DCS further alleged the children were dependent and suffering from neglect.
The children were returned to Mother’s custody in May 2003 for a 90-day trial period. In its order
granting the trial period, the trial court ordered Mother to have no contact with Mr. McClain. In July
2003, the children were returned to DCS custody after DCS alleged that Mother had left them in Mr.
McClain’s company. Following an August hearing, in October 2003 the trial court entered an order
finding Mother to be in contempt for violating the no contact order and ordering Mother to pay child
support of $75.00 per month to the Child Support Receiving Unit.
        On August 24, 2004, DCS petitioned to terminate the rights of Mother and the fathers of the
children. The trial court heard the matter in December 2004 and terminated Mother’s rights based
on the statutory grounds of abandonment, substantial noncompliance with a permanency plan, and
persistence of conditions and upon finding that termination was in the best interests of the children.
Mother filed a timely notice of appeal to this Court. We reverse.1

                                                Standard of Review

       Our standard of review of a trial court sitting without a jury is de novo upon the record.
Wright v. City of Knoxville, 898 S.W.2d 177, 181 (Tenn.1995). There is a presumption of
correctness as to the trial court’s findings of fact, unless the preponderance of evidence is otherwise.
Tenn. R. App. P. 13(d). However, no presumption of correctness attaches to a trial court’s
conclusions on issues of law. Bowden v. Ward, 275 S.W.3d 913, 916 (Tenn.2000); Tenn. R. App.
P. 13(d).

       Tennessee Code Annotated § 36-1-113 governs the termination of parental rights. The code
provides, in pertinent part:

               (c) Termination of parental or guardianship rights must be based upon:
               (1) A finding by the court by clear and convincing evidence that the grounds
       for termination or parental or guardianship rights have been established; and
               (2) That termination of the parent's or guardian's rights is in the best interests
       of the child.

Tenn. Code Ann. § 36-1-113(c)(2001). This section also provides the grounds on which parental
rights may be terminated. The existence of any statutory ground for termination of parental rights
will support the trial court’s decision to terminate those rights. In re Valentine, 79 S.W.3d 539, 546
(Tenn. 2002).

        A court’s determination to terminate parental rights must be supported by clear and
convincing evidence. Id. Clear and convincing evidence is “evidence in which there is no serious
or substantial doubt about the correctness of the conclusions drawn from the evidence.” Id. (quoting
Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn.1992)). In describing what constitutes
clear and convincing evidence, this Court has stated:

       [a]lthough it does not require as much certainty as the “beyond a reasonable doubt” standard,
       the “clear and convincing evidence” standard is more exacting than the “preponderance of
       the evidence” standard. O’Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn. App. 1995);
       Brandon v. Wright, 838 S.W.2d 532, 536 (Tenn. App. 1992). In order to be clear and
       convincing, the evidence must eliminate any serious or substantial doubt about the
       correctness of the conclusions to be drawn from the evidence. Hodges v. S.C. Toof & Co.,


       1
           The fathers of the children have not appealed termination of their parental rights.

                                                           -2-
       833 S.W.2d 896, 901 n.3 (Tenn. 1992); O’Daniel v. Messier, 905 S.W.2d at 188. Such
       evidence should produce in the fact-finder’s mind a firm belief or conviction as to the truth
       of the allegations sought to be established. O’Daniel v. Messier, 905 S.W.2d at 188;
       Wiltcher v. Bradley, 708 S.W.2d 407, 411 (Tenn. App. 1985). In contrast to the
       preponderance of the evidence standard, clear and convincing evidence should demonstrate
       that the truth of the facts asserted is “highly probable” as opposed to merely “more probable”
       than not. Lettner v. Plummer, 559 S.W.2d 785, 787 (Tenn. 1977); Goldsmith v. Roberts, 622
       S.W.2d 438, 441 (Tenn. App. 1981); Brandon v. Wright, 838 S.W.2d at 536.

In re C.W.W., N.W.W., Z.W.W., & A.L.W., 37 S.W.3d 467, 474 (Tenn. Ct. App. 2000).

                                               Analysis

        We begin our analysis by reiterating that “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). Further,
“[f]ew consequences of judicial action are so grave as the severance of natural family ties.” Santosky
v. Kramer, 455 U.S. 745, 787 (1982)(Rehnquist, J., dissenting). In light of the fundamental nature
of parental rights and the gravity of the termination of those rights, “[t]he federal and state
constitutions require the opportunity for an individualized determination that a parent is either unfit
or will cause substantial harm to his or her child before the fundamental right to care and custody
of the child can be taken away.” In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999). A parent’s right
to the care, custody, and control of his or her child may be terminated only if clear and convincing
evidence justifies termination under the applicable statutes. Santosky v. Kramer, 455 U.S. at 769.

       The Tennessee Code provides the following grounds on which parental rights may be
terminated:

                (1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
       occurred;
                (2) There has been substantial noncompliance by the parent or guardian with
       the statement of responsibilities in a permanency plan or a plan of care pursuant to
       the provisions of title 37, chapter 2, part 4;
                (3)(A) The child has been removed from the home of the parent or guardian
       by order of a court for a period of six (6) months and:
                (i) The conditions which led to the child's removal or other conditions which
       in all reasonable probability would cause the child to be subjected to further abuse
       or neglect and which, therefore, prevent the child's safe return to the care of the
       parent(s) or guardian(s), still persist;
                (ii) There is little likelihood that these conditions will be remedied at an early
       date so that the child can be safely returned to the parent(s) or guardian(s) in the near
       future; and




                                                  -3-
                (iii) The continuation of the parent or guardian and child relationship greatly
       diminishes the child's chances of early integration into a safe, stable and permanent
       home.
                (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;
                (5) The parent or guardian has been sentenced to more than two (2) years'
       imprisonment for conduct against the child who is the subject of the petition, or for
       conduct against any sibling or half-sibling of the child or any other child residing
       temporarily or permanently in the home of such parent or guardian, which has been
       found under any prior order of a court or which is found by the court hearing the
       petition to be severe child abuse, as defined in § 37-1-102(b)(21). Unless otherwise
       stated, for purposes of this subdivision, "sentenced" shall not be construed to mean
       that the parent or guardian must have actually served more than two (2) years in
       confinement, but shall only be construed to mean that the court had imposed a
       sentence of two (2) or more years upon the parent or guardian;
                (6) The parent has been confined in a correctional or detention facility of any
       type, by order of the court as a result of a criminal act, under a sentence of ten (10)
       or more years, and the child is under eight (8) years of age at the time the sentence
       is entered by the court.
                (7) The parent has been convicted of or found civilly liable for the intentional
       and wrongful death of the child's other parent or legal guardian.

Tenn. Code Ann. § 36-1-113(g)(1)-(7)(Supp. 2004). In this case, the trial court terminated Mother’s
parental rights pursuant to sections 36-1-113(g)(1), (2) and (3)(A).

                                            Abandonment

        We first turn to whether clear and convincing evidence supports termination of Mother’s
parental rights based on abandonment under section 36-1-113(g)(1). The Tennessee Code provides,
in pertinent part:

       (1)(A) "Abandonment" means, for purposes of terminating the parental or guardian
       rights of parent(s) or guardian(s) of a child to that child in order to make that child
       available for adoption, 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 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



                                                  -4-
or have willfully failed to support or have willfully failed to make reasonable
payments toward the support of the child;
         (ii) The child has been removed from the home of the parent(s) or guardian(s)
as the result of a petition filed in the juvenile court in which the child was found to
be a dependent and neglected child, as defined in § 37-1-102, and the child was
placed in the custody of the department or a licensed child-placing agency, that the
juvenile court found, or the court where the termination of parental rights petition is
filed finds, that the department or a licensed child-placing agency made reasonable
efforts to prevent removal of the child or that the circumstances of the child's
situation prevented reasonable efforts from being made prior to the child's removal;
and for a period of four (4) months following the removal, the department or agency
has made reasonable efforts to assist the parent(s) or guardian(s) to establish a
suitable home for the child, but that the parent(s) or guardian(s) have made no
reasonable efforts to provide a suitable home and have demonstrated a lack of
concern for the child to such a degree that it appears unlikely that they will be able
to provide a suitable home for the child at an early date;
         (iii) A biological or legal father has either willfully failed to visit or willfully
failed to make reasonable payments toward the support of the child's mother during
the four (4) months immediately preceding the birth of the
child; provided, that in no instance shall a final order terminating the parental rights
of a parent as determined pursuant to this subdivision (iii) be entered until at least
thirty (30) days have elapsed since the date of the child's birth;
         (iv) A parent or guardian is incarcerated at the time of the institution of an
action or proceeding to declare a child to be an abandoned child, or the parent or
guardian has been incarcerated during all or part of the four (4) months immediately
preceding the institution of such action or proceeding, and either has willfully failed
to visit or has willfully failed to support or has willfully failed to make reasonable
payments toward the support of the child for four (4) consecutive months
immediately preceding such parent's or guardian's incarceration, or the parent or
guardian has engaged in conduct prior to incarceration which exhibits a wanton
disregard for the welfare of the child; or
         (v) The child, as a newborn infant aged seventy-two (72) hours or less, was
voluntarily left at a facility by such infant's mother pursuant to § 68-11- 255; and, for
a period of thirty (30) days after the date of voluntary delivery, the mother failed to
visit or seek contact with the infant; and, for a period of thirty (30) days after notice
was given under § 36-1-142(e), and no less than ninety (90) days cumulatively, the
mother failed to seek contact with the infant through the department or to revoke her
voluntary delivery of the infant.
         (B) For purposes of this subdivision (1), "token support" means that the
support, under the circumstances of the individual case, is insignificant given the
parent's means;
         (C) For purposes of this subdivision (1), "token visitation" means that the
visitation, under the circumstances of the individual case, constitutes nothing more


                                            -5-
       than perfunctory visitation or visitation of such an infrequent nature or of such short
       duration as to merely establish minimal or insubstantial contact with the child;
               (D) For purposes of this subdivision (1), "willfully failed to support" or
       "willfully failed to make reasonable payments toward such child's support" means the
       willful failure, for a period of four (4) consecutive months, to provide monetary
       support or the willful failure to provide more than token payments toward the support
       of the child;
               (E) For purposes of this subdivision (1), "willfully failed to visit" means the
       willful failure, for a period of four (4) consecutive months, to visit or engage in more
       than token visitation;
               (F) Abandonment may not be repented of by resuming visitation or support
       subsequent to the filing of any petition seeking to terminate parental or
       guardianship rights or seeking the adoption of a child; and
               (G) "Abandonment" and "abandonment of an infant" do not have any other
       definition except that which is set forth in this section, it being the intent of the
       general assembly to establish the only grounds for abandonment by statutory
       definition. Specifically, it shall not be required that a parent be shown to have
       evinced a settled purpose to forego all parental rights and responsibilities in order for
       a determination of abandonment to be made. Decisions of any court to the contrary
       are hereby legislatively overruled;

Tenn. Code Ann. § 36-1-102(1)(Supp. 2004).

        The trial court in this case found abandonment based on willful failure to visit and willful
failure to support. The trial court found that Mother had failed “without good cause or excuse, to
make reasonable and consistent payments for the support of the children in accordance with the child
support guidelines promulgated by the Tennessee Department of Human Services pursuant to T.C.A.
36-5-101" and “to seek reasonable visitation with the children, and if visitation has been granted, has
failed to visit altogether or has engaged in only token visitation as defined in T.C.A. 36-1-
102(1)(D).”

        The element of willfulness is essential to the court’s determination of abandonment. See In
re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999). Although willfulness in the context of the statutes
governing the termination of parental rights does not require a finding of malice or ill will, it does
require clear and convincing evidence of choice of action, free from coercion, made by a free agent.
In re Adoption of Kleshinski, No. M2004-00986-COA-R3-CV, 2005 WL 1046796, at *18 (Tenn.
Ct. App. May 4, 2005)(no perm. app. filed)(citations omitted). A custodial parent’s or third party’s
conduct excuses a parent’s willful failure to visit only where that conduct actually prevents or
significantly hinders the parent from doing so. In re DMD, No. W2003-00987-COA-R3-PT, 2004
WL 1359046, at *3 (Tenn. Ct. App. June 17, 2004).

      In this case, the revised permanency plan dated December 11, 2003, states that Mother “ha[d]
made several request[s] to visit with her children” despite visitation being at the discretion of the


                                                 -6-
foster parents and despite requests from two of the children for no contact. Mr. M., DAM’s paternal
grandfather and foster care provider, testified that Mother visited with DAM in the spring of 2004
and that Mother had spoken to DAM when he answered the telephone three or four months prior to
the December 2004 hearing. Mr. M. also testified that Mother had telephoned two or three times in
the three months prior to the December hearing to inquire about DAM, but that she had not asked
to see him. As Mr. M. further testified, however, Mother was under a court order to have no contact
with her children from the date of the previous review hearing of April 20, 2004.

        The technical record in this case reflects that the trial court held a hearing to “review the
progress of the parties” on April 20, 2004, and that it ordered that “the children are to have no
contact with the Mother.” This order was entered by the trial court on June 2, 2004, but the no
contact order apparently was understood by the parties to be effective from the date of the hearing.
The petition to terminate Mother’s parental rights was filed on August 24, 2004, four months
subsequent to the trial court’s no contact order.

        “[T]he willful failure to visit, support, or make reasonable payments toward the support of
the child must have occurred in the four months immediately preceding the filing of the petition
currently before the court.” In re D.L.B., 118 S.W.3d 360, 366 (Tenn. 2003). In light of the trial
court’s no contact order of April 2004, we can hardly agree that Mother willfully failed to visit her
children in the four months immediately preceding the filing of the August 2004 termination petition.
Indeed, Mother would have been in contempt of court had she attempted to contact her children
during this period. It is undisputed, however, that Mother contacted both Mr. M. and DCS to inquire
about the welfare of her children. Mr. James Denney (Mr. Denney), the DCS county case manager
who managed this case from its inception in December 2002, testified that Mother had telephoned
his offices on a number of occasions requesting visitation prior to the no contact order and that she
had continued to contact his office following entry of the April no contact order. Moreover, it is
undisputed that prior to the no contact order, Mother’s visitation with her children was at the
discretion of DCS and the foster care providers. In light of the foregoing, we reverse the finding of
abandonment based on the willful failure to visit.

         We next turn to whether the record supports a finding of abandonment based on the willful
failure to support. This Court recently has noted that,

       [t]erminating parental rights based on failure to support presupposes (1) that the
       parent is aware of his or her duty to support, (2) that the parent is able to provide
       financial support, either through income from private employment or qualification
       for government benefits, and (3) that the parent has voluntarily and intentionally
       chosen not to provide financial support without a justifiable excuse.

In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004).

        Merely demonstrating that a parent failed to provide support is not sufficient to establish
willful failure to support. Id. at 655. As this court repeatedly has held, a parent’s failure to support


                                                  -7-
their child because he or she is financially unable to do so does not constitute a willful failure to
support. E.g., O'Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn. Ct. App.1995); In re Adoption of
Kleshinski, No. M2004-00986-COA-R3CV, 2005 WL 1046796, at *18 (Tenn. Ct. App. May 04,
2005)(no perm. app. filed). Further, where a child has been placed in DCS custody pursuant to a
dependent-neglect proceeding, the duty to support may be established by external factors, including
the permanency plan for the child or by a court order defining the support obligation. In re M.J.B.,
140 S.W.3d at 655. However a third party’s interference with a parent’s attempts at visitation does
not excuse the parent from his obligation to support the child financially. In re DMD, No.
W2003-00987-COA-R3PT, 2004 WL 1359046, at *3 (Tenn. Ct. App. June 17, 2004).

        In her brief to this Court, Mother’s argument, as we perceive it, is that she was unsure of her
child support obligation and that she was unable to pay child support because “among other
reasons[,]” she had a history of seizures and was unable to work after a seizure in July 2004.
However, following a hearing on August 26, 2003, in October 2003 the trial court ordered Mother
to pay child support of $75 per month to the Child Support Receiving Unit. Mother testified to being
aware of the court’s order and to having failed to pay child support for the four months preceding
the December hearing. Thus, any assertion by Mother that she was unsure of her obligation is
without merit.

        It is undisputed that Mother failed to pay the child support ordered by the court and specified
on the revised permanency plan for DAM. We must determine, however, whether Mother’s failure
to pay child support for the four months preceding the filing of the petition to terminate her parental
rights was willful. Whether a parent’s failure to support was willful must be determined under the
particular facts and circumstances of each case. See In re Swanson, 2 S.W.3d 180, 184-85
(Tenn.1999). Additionally, when determining whether a parent has willfully failed to support his
child, we must consider the four months immediately preceding the filing of the petition currently
before the court. In re D.L.B., 118 S.W.3d 360, 366 (Tenn. 2003).

        Mother asserts that she was unable to work following the onset of seizures on July 28, 2004.
Mother testified that, prior to experiencing seizures, she had been doing “tree work” and “pulling
brush” and that she had her first seizure on the job on July 28. She further testified that she had
worked in “probably March maybe” of 2004 and had applied for social security disability benefits
following her July seizure. The Social Security Administration approved Mother’s application for
disability benefits on October 25, 2004.

        The burden is on DCS to prove by clear and convincing evidence that Mother had the means
but willfully failed to support her children in the four months immediately preceding the termination
petition currently before the court. Although Mother testified that, prior to her first seizure on July
28, 2004, she worked intermittently doing “tree work” in 2004, the record does not reflect how much
Mother actually earned in the four months preceding the August 2004 petition to terminate her
parental rights. As DCS observes, Mother also testified that she earned $125 per week over a three
or four-month period in the later part of 2003 or early 2004 and that, for the two-year period
preceding the termination hearing, she had lived in her sister’s home contributing only food stamps,


                                                 -8-
some food, and household chores to the household. Further, as DCS also asserts in its brief to this
Court, it is undisputed that, despite intermittent employment and virtually no household expenses,
Mother made little or no effort to fulfill any of her child support obligation as ordered by the court
in October 2003. However, it is the four month period of April 24 to August 24, 2004, that is
relevant to our inquiry here.

         The trial court found that Mother made no child support payments during this period. Mr.
Denney, however, testified that, although he had a “hard time” reading the computer print out report
in the record, it appeared that Mother made two support payments totaling $85 in June 2004. Mother
testified that she made at least one payment during this period. Additionally, in the absence of any
evidence regarding what Mother actually earned in this period, we cannot determine that a payment
of $85 was not reasonable considering Mother’s income during the four months preceding the
termination petition. Moreover, it is undisputed that the Social Security Administration determined
that Mother was unable to work and became eligible for, but had not yet received, disability benefits
following the on-set of seizures in July 2004. Thus, Mother’s failure to support clearly was not
willful after July 28, 2004.

        In light of the foregoing, we cannot say that clear and convincing evidence establishes that
Mother had the ability to fulfill her child support obligation but willfully failed to do so during the
four months immediately preceding the August 24, 2004, petition to terminate her parental rights.
DCS simply has failed to carry its burden of proof on this issue. Accordingly, we reverse the trial
court’s finding of grounds based on willful abandonment.

                     Substantial Noncompliance with the Permanency Plan

        The trial court found that grounds existed for termination of Mother’s parental rights based
on substantial noncompliance with the requirements of the permanency plan. In order to determine
that a parent has not substantially complied with the requirements of a permanency plan, the trial
court must find that the requirements are “reasonable and related to remedying the conditions which
necessitate foster care placement” as required by Tenn. Code Ann. § 37-2-403(a)(2)(C). In re
Valentine, 79 S.W.3d 539, 547 (Tenn. 2002). These conditions include conditions “related both to
the child’s removal and to family reunification.” Id. Further, a parent’s noncompliance must be
“substantial.” Id. at 548. “In the context of the requirements of a permanency plan, the real worth
and importance of noncompliance should be measured by both the degree of noncompliance and the
weight assigned to that requirement.” Id. Substantial noncompliance is a question of law which we
review de novo with no presumption of correctness. Id.

        In the absence of limited circumstances not present in this case, DCS must make “reasonable
efforts” to make it “possible for the child to return” safely to the child's home. Tenn. Code Ann. §§
37-1-166(a)(2),-166(g)(2). Additionally, DCS may delay termination proceedings if it has not had
sufficient opportunity to make reasonable efforts to provide services which would enable the child
to return home safely. Tenn. Code Ann. § 36-1-113(h)(2)(C). DCS has made “reasonable efforts”



                                                 -9-
where, “in the exercise of reasonable care and diligence” it has “provide[d] services related to
meeting the needs of the child and the family.” Tenn. Code Ann. § 37-1-166(g)(1).

        Whether DCS has made reasonable efforts to provide services to enable a child to return
safely to the home must be decided on a case-by-case basis in light of the circumstances of the case.
When determining whether DCS has made reasonable efforts, the court may consider factors such
as:

       (1) the reasons for separating the parent from his or her child or 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 separation, (5) the
       resources available to the Department, (6) the duration of the parent's remedial
       efforts, and (7) the closeness of the fit between the conditions that led to the initial
       separation, the requirements in the permanency plan, and the Department's efforts.

In re C.M.M. & S.D.M., No. M2003-01122-COA-R3-PT, 2004 WL 438326, at * 7 (Tenn. Ct. App.
Mar. 9, 2004)(no perm. app. filed). Certainly, parents must also make reasonable efforts to
substantially comply with the requirements of the permanency plan. DCS, however, bears the
burden of proving, by clear and convincing evidence, substantial noncompliance despite DCS’s
reasonable efforts to provide appropriate services. Tenn. Code Ann. § 36-1-113(C); e.g. In re
C.M.M. & S.D.M., No. M2003-01122-COA-R3-PT, 2004 WL 438326, at * 7.

         As noted above, DCS stated in its December 2002 petition for temporary custody that it was
seeking removal of the children from Mother because Mother had a history of alcohol abuse and
because the family had been evicted from its home and was living in an unsafe environment with Mr.
McClain, who was known by DCS to be abusive to Mother. The goal of the initial permanency plan
of January 2003 was the return of the children to Mother. The plan required Mother to: continue
counseling to help her address her issues and for coping; obtain and maintain employment for at least
four months; obtain clean, safe, adequate housing; attend and participate in parenting classes at one
of the local agencies that offers classes; submit to alcohol and drug assessment and comply with the
results of the assessment and submit to random drug screens; obtain reliable transportation which
would permit her to meet her obligations and maintain employment. Mother was not present when
the permanency plan was developed, but signed it at a permanency hearing held on February 18,
2003. Additionally, in August 2003 Mother was ordered to have no contact with Mr. McClain as
a condition of a 90-day trial home placement.

        Mr. Denney testified that Mother had obtained housing by Spring 2003 and that during the
period of February to May, 2003, she was in compliance with the permanency plan, was “doing a
real good job,” and “making some strides.” He testified that “she showed a genuine care and concern
for her children” at this time. The children were returned to Mother for a 90-day trial period in May
2003, but were returned to DCS custody on July 28 because, according to Mr. Denney, Mother “was
maintaining a relationship with a gentleman whom she was court ordered to stay away from, and
through verification with the Sheriff’s Department and through a co-worker who was on call that


                                                 -10-
night, they picked the children up at the Sheriff’s Department, and the Sheriff’s Department
indicated that they had been left alone at the boyfriend’s home.”

       A revised permanency plan was developed in December 2003. This plan revised the
permanency goal to “exit custody to live with relative.” In April 2004, the goal was again revised
to “adoption.” The goal of adoption was handwritten on the December plan. The revised
permanency plan included no requirements for Mother and was not signed by her.

        At the December 2004 hearing, Mother testified that she was living in a three bedroom home
with her sister and her sister’s family. She testified that she planned to obtain independent housing
for herself and her children once they were returned to her care. Although she had maintained only
intermittent employment, Mother had successfully secured disability benefits from the Social
Security Administration. The record does not reflect, however, the amount of these benefits or when
they were to commence. Although Mother had been given a car by Mr. M., it had been severely
damaged by friends in a brawl. However, the record reflects that Mother had completed an
educational program in parenting skills taught by the University of Tennessee Agricultural Extension
Service in June 2003; had sought and received treatment, including prescription medication for bi-
polar disorder, from the Nolachuckey-Holston Area Mental Health Center; had received and
continues to receive counseling and therapy at the Church Street Pavillion; and had received
counseling from mental health-care professionals at the Nolachuckey-Holston Area Mental Health
Center approximately ten times in 2004. Additionally, Mother testified that she had attended several
AA meetings but that she could not “get anybody to sign [her] paper” and stopped going after five
or six meetings.

        Mr. Denney, on the other hand, testified that he had no knowledge of whether Mother had
attended parenting classes, that he had never seen Mother intoxicated, and that he had not asked her
to submit to drug screens. He further testified that he did not know anything about her housing
conditions after July 2003, and that he had no knowledge of whether she was homeless at the time
of the December 2004 hearing. He also testified that he did not recall whether Mother had told him
she was living on Hemlock Drive with her sister, despite the fact that Mother previously had given
the Hemlock Drive address in court. Mr. Denney testified that he was aware that Mother had been
receiving counseling at Church Street Pavillion, although he did not recall exactly what the
counseling entailed. He testified that he recalled discussing Mother’s AA meetings with her and that
he did not tell her that attending the meeting would not be sufficient for assessment. Additionally,
Mr. Denney testified that he did not recall telling Mother about agencies and resources which might
be available to her for counseling or drug and alcohol assessment. Mr. Denney testified that,
although Mother had telephoned numerous times, he did not document all of her calls but would
“sometimes” try to return her calls. He also testified that he had not seen Mother since August 26,
2003. Finally, Mr. Denney testified that, regarding Mother’s relationship with Mr. McClain, he
knew “only [knew] what [he] heard through rumors.”

      The trial court determined that Mother had chosen not to avail herself of social services
which would have helped her to address her substance abuse programs. However, upon review of


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the permanency plans and the testimony in the record, we agree with Mother that she was given little
in the way of guidelines or advice on how or where to receive the required services, how often she
was to receive them, or what was expected in the way of satisfactory completion. The record
contains neither testimony nor documentary evidence of services or assistance provided by DCS.

        It is clear to this Court that DCS made very little effort to assist Mother to avail herself of
necessary services or to reunify this family. As we have noted, reasonable efforts on the part of DCS
“entail more than simply providing parents with a list of service providers and sending them on their
way.” In re C.M.M. & S.D.M., No. M2003-01122-COA-R3-PT, 2004 WL 438326, at *7. In this
case, DCS failed to even provide Mother with a list. Essentially, DCS told Mother to get a job, a
home, and counseling but gave her no guidance or assistance on how to comply or what resources
might be available to her. After July 2003, moreover, DCS made no attempt to assist Mother and
virtually no attempt even to return her telephone calls. The evidence simply does not support a
finding of substantial noncompliance with a permanency plan despite reasonable efforts. Certainly,
it does not support such a finding by clear and convincing evidence. Accordingly, we reverse
termination of Mother’s parental rights based on substantial noncompliance with a permanency plan.

                                     Persistence of Conditions

         As this Court previously has noted, the efforts of DCS to assist a parent to correct the
conditions which led to the removal of his or her child is often intertwined with the likelihood of the
parent’s success. In re C.M.M. & S.D.M., No. M2003-01122-COA-R3-PT, 2004 WL 438326, at *9.
As noted above, in this case, DCS apparently made very little effort to assist Mother.
Notwithstanding DCS’s lack of effort, the evidence supports a finding that Mother was not homeless
at the time of the hearing of this matter, but had been living with her sister for nearly two years.
Certainly, clear and convincing evidence does not support a finding that Mother was homeless in
light of Mr. Denney’s testimony that he had not spoken with Mother and did not know whether she
was homeless. Additionally, it is undisputed that Mother will have at least some means to support
her children financially through social security disability payments. Although a drug screen taken
on the day of the termination hearing was positive for benzodiazepines and opiates, there was neither
evidence nor suggestion that this result was not caused by Mother’s prescription medication. On the
contrary, Mr. Denney testified that Mother had difficulty with alcohol and not illegal drugs. The
breathalyzer monitor for alcohol registered 0.0.

         We finally turn to the presence of Mr. McClain in Mother’s life. Mother’s connection to Mr.
McClain, and certainly any potential contact between Mr. McClain and the children, appears to have
been of considerable concern to the trial court. Mother does not dispute that she violated the trial
court’s order by permitting contact between Mr. McClain and the children during the trial home
placement in Spring 2003. However, it is undisputed that Mother secured an order of protection
against Mr. McClain in April 2004, and she testified to no longer associating with him. Mother also
testified that she agreed Mr. McClain was not an appropriate person to have in the children’s
company. Additionally, we note that there is nothing in the record to support a finding that Mr.
McClain was abusive toward the children, and Mr. Denney testified that all he knew about Mother’s


                                                 -12-
relationship with Mr. McClain was “through rumors.” Speculation based on rumor clearly is not
clear and convincing evidence. We reverse termination of Mother’s parental rights based on
persistence of conditions.

                                               Holding

        In light of the foregoing, we reverse the judgment of the trial court terminating Mother’s
parental rights to C.M.C., C.L.C., and D.A.M. DCS has failed to prove by clear and convincing
evidence the existence of any statutory grounds for termination. Because DCS has failed to carry
its burden to prove grounds, we do not reach the question of whether termination of Mother’s
parental rights is in the best interests of the children. Costs of this appeal are taxed to the Appellee,
the State of Tennessee, Department of Children’s Services.



                                                         ___________________________________
                                                         DAVID R. FARMER, JUDGE




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