                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                         Assigned on Briefs November 18, 2010

                                 IN RE ELIJAH B., ET AL.

                   Appeal from the Juvenile Court for Greene County
                     No. J21376     Kenneth N. Bailey, Jr., Judge




            No. E2010-00387-COA-R3-PT - FILED DECEMBER 29, 2010


Eric B. (“Father”) appeals the termination of his parental rights with respect to his two minor
children. The Department of Children’s Services (“DCS”) petitioned to terminate Father’s
rights based upon allegations of abandonment, substantial noncompliance with a permanency
plan, and persistence of conditions. Following a hearing, which Father failed to attend, the
trial court granted the petition upon finding, by clear and convincing evidence, that all of the
alleged grounds were established and that termination was in the best interest of the children.
On appeal, Father asserts that his due process rights were violated. He also challenges the
weight of the evidence supporting the court’s decision to terminate his parental rights. We
reject both challenges. Accordingly, we affirm.

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

C HARLES D. S USANO J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.

Sandy Phillips, Johnson City, Tennessee, for the appellant, Eric B.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Joshua Davis Baker, Assistant Attorney General; Nashville, Tennessee, for the appellee,
Tennessee Department of Children’s Services.

                                          OPINION
                                                     I.

        Two children were born to Father and his wife, Crystal B. (“Mother”)1 – a son, Elijah,
on May 22, 2000, and a daughter, Abigail, on January 7, 2006. In May 2006, DCS filed a
petition seeking an adjudication that the children were dependent and neglected. The petition
stemmed from an incident in which Father and Mother were arrested when they, with both
of the children present, were observed stealing some $738 in electronic goods from a
WalMart store and secreting them in a diaper bag. During a search incident to both parents’
arrest, officers discovered in Mother’s purse two spoons and two syringes containing residue
that appeared to be cocaine. Father claimed that these items belonged to him. Father pleaded
guilty to charges of theft over $500 and possession of drug paraphernalia and was sentenced
to 11 months and 29 days in jail with all but four days suspended. Father was already on
probation at the time of the offenses. In the ensuing DCS investigation, Father admitted to
being a drug addict in need of help. He admitted he had used crack cocaine and morphine
in the children’s presence the night before his arrest. Although Father claimed Mother no
longer used drugs, the investigator observed needle tracks on both of their arms.

       In further support of the petition, the DCS case manager noted that DCS had received
a referral the previous month from officials at Elijah’s school regarding possible medical
neglect – the child was hearing impaired and was supposed to be wearing a hearing aid in one
ear but had repeatedly come to school without it. More recently, the child had stopped
attending school. The petition further alleged that the children were in need of immediate
protection because the family had no stable housing – they had recently resided at the
Andrew Johnson motel. The parents said they were in the process of getting a trailer when
both were jailed. At that time, Child Protective Services “completed a safety plan and placed
the children temporarily with [a grandmother]. However, after a DCS records check, the
children were moved to a DCS foster home.”

        The children were brought into the protective custody of DCS on May 23, 2006. At
a status hearing the following month, the court found, by clear and convincing evidence, that
the children were dependent and neglected; the parents remained in jail and stipulated to the
allegations. The court noted that DCS had created a permanency plan for the children and
was using reasonable efforts to meet the stated dual goals of reuniting the family or having
the children exit custody to live with a relative. Father was ordered to submit to random drug
screens; if he passed them, he would be allowed to have supervised visits with the children.
In addition, Father was to undergo an alcohol and drug assessment and his attendance in an
in-patient drug treatment program was recommended. To this end, DCS arranged for Father


        1
         Mother voluntarily surrendered her parental rights prior to the hearing below. She is not a party on
this appeal and we mention her only as is necessary to flesh out the underlying facts.

                                                    -2-
to complete an alcohol and drug assessment. The plan also charged Father with the task of
completing a mental health assessment and following all recommendations; maintaining
sobriety while the children were in state custody; securing employment and adequate
housing; and abiding by all laws and the conditions of his probation. Father acknowledged
his participation in the plan’s development, reviewed its terms, and agreed to them. In
addition, Father signed a statement acknowledging that he had received a copy of the
“Criteria & Procedures for Termination of Parental Rights” and that its contents had been
explained to him.

         One year into the children’s foster care placement, DCS family services case manager
Kimberly Shirley completed an “Affidavit of Reasonable Efforts” in which she concluded,
“[a]t this juncture, it is unlikely the children could ever be reunified with their parents” and
noted that DCS was pursuing the termination of their rights. She noted that services were
at first provided to both parents, but that they were “noncompliant and did not keep [DCS]
notified of their whereabouts.” Because of the parents’ noncompliance and failure to notify,
DCS services were terminated. By January 2008, Ms. Shirley reported that the children
remained in a foster home “where all their needs are being met” and that DCS had had no
contact with Father.

       At an October 2008 hearing, the trial court found that it would be detrimental to the
children and not in their best interest to be removed from their current foster home and
placed in the custody of their paternal grandmother who had sought custody of them. At the
same hearing, Father was ordered to submit to a hair follicle drug test. He was advised that
if he passed two drug screens, a “no-contact” order then preventing his visitation with the
children would be lifted. DCS records showed that Father submitted to the drug test and
passed it on December 11, 2008.

        On January 27, 2009, DCS petitioned to terminate Father’s parental rights. The
petition alleged four grounds for termination: abandonment by failure to visit, abandonment
by failure to provide child support, substantial noncompliance with the permanency plan, and
the persistence of conditions that caused the children to be removed, with little likelihood of
those conditions being remedied in the foreseeable future.

        Father had supervised visits with the children on December 31, 2008, and February
6, 28, 2009. During that time, Elijah attended 2nd grade; he had exhibited some behavior
problems affecting his grades. He was diagnosed with mild mental retardation for which he
was receiving special education services. In addition, he received speech therapy three times
a week for his partial deafness.




                                              -3-
         A bench trial was held on December 8, 2009. At the time of the hearing, the children
were nine and three and had been in state custody for nearly three years. At the start of the
trial, the court noted Father’s absence. Father’s counsel, Ms. Luther, advised the court that
she had notified Father of the hearing date but had no contact with him in the past two
months. In its termination order, the court expressly found that “[Father] was properly served
and this matter is properly before this Court.” Ms. Luther was permitted to withdraw and the
hearing proceeded. Ms. Shirley, the only witness, essentially recited the procedural and
factual history of the children’s case and answered additional questions from the court. At
the conclusion of the trial, the court terminated Father’s rights.

      Father filed a timely notice of appeal. He asserts that neither the law nor the evidence
supports the trial court’s decision; he moves us to restore his parental rights.

                                             II.

       Father raises the following issues for our review:

              1. Were Father’s due process rights violated by not being
              provided appropriate notice of the hearing for the termination of
              parental rights?

              2. Were Father’s due process rights violated when he was not
              provided counsel at the hearing for the termination of parental
              rights?

              3. Was the judgment contrary to the weight of the evidence?

                                             III.

       Our review of this non-jury case is de novo. The trial court’s findings of fact,
however, come to us with a presumption of correctness that we must honor unless the
evidence preponderates against those findings. Tenn. R. App. P. 13(d). In weighing the
preponderance of the evidence, great weight is accorded the trial court’s decisions regarding
witness credibility; such determinations will not be reversed absent clear and convincing
evidence to the contrary. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). No
presumption of correctness attaches to the trial court’s conclusions of law. Langschmidt v.
Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002); Jahn v. Jahn, 932 S.W.2d 939, 941
(Tenn. Ct. App. 1996).




                                             -4-
        A parent has a fundamental right to the care, custody, and control of the parent’s
children. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re
Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988). While parental rights are superior to the
claims of other individuals and the government, they are not absolute, and can be terminated
upon appropriate statutory grounds. See Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn.
2002). A parent’s rights may be terminated only upon a finding by the court (1) “that the
grounds for termination of parental or guardianship rights have been established; and (2)
[t]hat termination of the parent’s or guardian’s rights is in the best interests of the child.”
Tenn. Code Ann. § 36-1-113(c)(Supp. 2007); In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn.
2006). Both of these elements must be established by clear and convincing evidence. See
Tenn. Code Ann. § 36-1-113(c)(1); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
Evidence satisfying the clear and convincing evidence standard establishes that the truth of
the facts asserted is highly probable, State v. Demarr, No. M2002-02603-COA-R3-JV, 2003
WL 21946726, at *9 (Tenn. Ct. App. M.S., filed August 13, 2003), and eliminates any
serious or substantial doubt about the correctness of the conclusions drawn from the
evidence. In re Valentine, 79 S.W.3d at 546; In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct.
App. 2004).

       On our review, we proceed mindful of our duty “to determine whether the trial court’s
findings, made under this clear and convincing standard, are supported by a preponderance
of the evidence.” In re F.R.R., III, 193 S.W.3d at 530.

                                               IV.

        In his first two issues, Father alleges that the termination hearing was held in violation
of his due process rights. More specifically, he contends that he was not properly notified
of the hearing date and was denied his right to counsel. We address these issues together.

        As relevant to both issues, Father was deemed indigent and Ms. Luther was appointed
as his counsel in April 2009. See Tenn. S. Ct. R. 13, Sec. 1 (2)(b) (providing that counsel
shall, upon request, be appointed to an indigent party in an action which may result in
termination of the party’s parental rights). The order of appointment expressly provides that
counsel would represent Father to the conclusion of trial and on any subsequent appeals in
this case. On August 18, 2009, the original hearing date, Father was present when the hearing
was rescheduled to October 13 on motion of the children’s guardian ad litem. On October
13, the parties appeared at court. Before the case was called, counsel met in the hall outside
the courtroom and agreed to reschedule the hearing to December 8, 2009.

       At the start of the hearing on December 8, the trial court questioned Father’s counsel
regarding Father’s absence:

                                               -5-
       The Court: Ms. Luther, your client?

       Counsel: I don’t know where he is, Your Honor. I haven’t, in
       all candor, spoken with him since October. I haven’t been able
       to reach him and I would like to withdraw from the case.

       The Court: Okay. I will permit your withdrawal. Hum . . . I’m
       shocked that he’s not here because he’s . . .

       Counsel: Yeah, he’s always been to court hearings before, but
       I haven’t been able to get a hold of him in almost a month and
       a half.

       The Court: Okay. And he was present the previous Court
       hearing when this was set for today, I believe?

       Counsel: I believe we reset without coming actually into the
       Courtroom, but I did notify him that day.

                                     *   *     *

       The Court: [A]nd the case was set at 8:30. The clock on the
       wall now says it is 8:58, so . . . [Bailiff], if you’ll just call
       [Father’s] name out in the hall to . . . confirm he’s not present.

       Counsel: Your Honor, I know in the past he’s expressed
       concerns about having to take off from work. I don’t know if
       that was an issue today.

       The Court: [Father] has not answered.

In its termination order, the trial court addressed Father’s failure to attend the hearing:

       The Court also wants to state that this morning Ms. Luther,
       [Father’s] attorney was present, and she stated that he has not
       contacted her since October, has failed to assist her in preparing
       for this case. The Court did permit Ms. Luther to withdraw
       since [Father] did not appear here this morning, and she said she
       had notified him of today’s Hearing, and the Court has reviewed
       the notes from the . . . August Hearing and the case had been

                                         -6-
              reset till October, and in October it had to be reset until today,
              and Ms. Luther said that [Father] was present in the hall in
              October, and she had advised him the case was reset until today,
              December 8, 2009, and he has failed to show.

        “Basic due process requires ‘notice reasonably calculated under all the circumstances,
to apprise interested parties of the pendency of the action and afford them an opportunity to
present their objections.’ ” Keisling v. Keisling, 92 S.W.3d 374, 377 (Tenn. 2002)(citing
State v. Pearson, 858 S.W.2d 879, 884 (Tenn. 1993) (quoting Mullane v. Central Hanover
Bank & Trust Co., 339 U.S. 306, 314, 94 L. Ed. 865, 70 S. Ct. 652 (1950)). Further, “[d]ue
process is a flexible concept that ‘calls for such procedural protections as the particular
situation demands.’ ” Id. (quoting Wilson v. Wilson, 984 S.W.2d 898, 902 (Tenn. 1998)).

        Father asserts that the failure to “formally” reschedule the October 13 hearing, on the
record and in open court, effectively denied him the chance to defend his fundamental right
to the care and custody of the children. We cannot agree. Whether the agreed continuance
took place outside or inside the courtroom is, in our view, irrelevant to the question of
whether Father in fact was given proper notice of the rescheduled hearing. Ms. Luther
informed the court that she personally notified Father of the new hearing date on the day it
was rescheduled. Father does not dispute his counsel’s assertion that she notified him of the
rescheduled hearing; he simply asserts that the notice he was given was not “appropriate
notice.” Father argues that “[t]here is no evidence that [his] attorney or the court clerk wrote
the court date down for [Father] or took any other steps besides a passing reference in the
hallway to insure [that Father] would know and remember the court date.”

        Father has conceded that he appeared for the October 13, 2009, hearing and that his
attorney verbally notified him at that time that the hearing had been rescheduled for
December 8. We conclude that due process principles requiring notice and the opportunity
to be heard were satisfied in this case when Father was personally notified of the new hearing
date.

        Next, Father asserts that his due process rights were violated when the trial court
allowed his counsel to withdraw prior to the hearing without Father’s “knowledge or
permission.” He concludes that the absence of counsel materially and adversely affected his
interest because there was no one to present any argument or introduce any evidence on his
behalf.

      As we discussed earlier in this opinion, there is no question that Father was entitled
to and provided with appointed counsel in preparation for the termination hearing. In
seeking permission to withdraw at the start of the hearing, Ms. Luther advised the court that

                                              -7-
she had no knowledge of Father’s whereabouts and had not been able to reach him “in almost
a month and a half” since the hearing was continued from its October setting. The issue
becomes whether Father effectively waived his right to counsel by failing to communicate
with Ms. Luther in the months leading up to the hearing and then leaving her to appear
without him. “One who is entitled to be represented by appointed counsel can waive that
right. Failure to cooperate with appointed counsel can constitute a waiver of the right to
appointed counsel.” In re M.E., No. M2003-00859-COA-R3-PT, 2003 WL 1838179, at *12,
(Tenn. Ct. App. M.S., filed August 16, 2004).

        This Court was confronted with a situation factually similar to the present case in
Tenn. Dept. of Children’s Svcs. v. Agbigor, No. M2000-03214-COA-R3-JV, 2002 WL
31528509, at *6 (Tenn. Ct. App. Nov. 15, 2002) (perm. app. denied). Therein, Mr. Agbigor,
the defendant in a termination action, decided to take a month-long trip out of the country
and returned only two weeks before his trial date. Upon his return, he failed to contact his
attorney in preparation for the hearing. When the hearing began, Mr. Agbigor’s attorney,
who had represented him in the case for three years, advised the court that Mr. Agbigor had
not contacted him in several months and the attorney had been unable to contact Mr.
Agbigor. Upon arriving at the hearing an hour later, Mr. Agbigor was questioned by the
court regarding his attorney’s motion to withdraw; he did not dispute counsel’s assertions.
As a result, counsel was allowed to withdraw and Mr. Agbigor was advised that he would
have to represent himself. Under these facts, this Court concluded that Mr. Agbigor’s due
process rights were not violated: “His own conduct in refusing to cooperate with the attorney
who had represented him since August 25, 1997, is the sole reason he had no attorney at the
final termination hearing. By his own conduct, he effectively waived his less than absolute
right to appointed counsel.” Id. at *6.

        Returning to the present case, Father did not attend the hearing on December 8, 2009
– obviously, then, he did not directly respond to his attorney’s statements to the court that
day, i.e., that she had informed Father of the hearing, but had not heard from him, had been
unable to contact him, and did not know where to find him in preparation for the hearing.
Neither, however, does Father, in his brief, address his failure to contact or communicate
with his counsel or offer any real reason for his absence at the December 8 hearing. Again,
a “defendant in a termination of parental rights case has no absolute right to be represented
by counsel.” Agbigor, 2002 WL 31528509 at *5 (citing Lassiter v. Department of Social
Serv., 452 U.S. 18, 68 L. Ed. 2d 640, 101 S. Ct. 2153 (1981); In re: K.D.D., No.
M2000-01554-COA-R3-JV, 2001 WL 219669 (Tenn. Ct. App. Mar. 7, 2001)). On our
considered review, we conclude that Father, like Mr. Agbigor, did not suffer a due process
violation, but rather effectively waived his right to appointed counsel by failing to assist his
counsel or communicate with her at all in the two months before the hearing. Furthermore,
we find no due process violation in the trial court’s decision to proceed with the hearing in

                                              -8-
the absence of Father. The record clearly reflects that he knew of the hearing date. He has
failed to adequately explain his absence. The trial court did not abuse its discretion in
proceeding without him.

                                              V.

      In the present case, the trial court terminated Father’s parental rights pursuant to Tenn.
Code Ann. § 36-1-113 (g)(1),(2), and (3)(2010). These statutory provisions provide as
follows:

              (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;

              (2) There has been substantial noncompliance by the parent or
              guardian with the statement of responsibilities in a permanency
              plan. . . ;

              (3) 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:

              (A) The conditions that led to the child’s removal or other
              conditions that in all reasonable probability would cause the
              child to be subjected to further abuse or neglect and that,
              therefore, prevent the child’s safe return to the care of the
              parent(s) or guardian(s), still persist;

              (B) 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

              (C) 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;



                                              -9-
       As relevant to the present case, Tenn. Code Ann. § 36-1-102 (2010) – as referenced
in subsection (g)(1) above – provides for the termination of parental rights on the ground of
abandonment as follows:

              (1)(A) 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, “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 parent(s) or guardian(s) of the child who
              is the subject of the petition for termination of parental rights or
              adoption, that the parent(s) or guardian(s) either have willfully
              failed to visit or have willfully failed to support or have willfully
              failed to make reasonable payments toward the support of the
              child;

                                           *    *     *

              (C) For purposes of this subdivision (1), “token visitation”
              means that the visitation, under the circumstances of the
              individual case, constitutes nothing more 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;

                                               -10-
See Tenn. Code Ann. § 36-1-102(1)(A)(i), (C),(D), and (E).

                                              VI.

                                               A.

      Father challenges the trial court’s conclusion that each of the relied upon grounds for
terminating his rights was established by clear and convincing evidence. We address those
grounds in turn.

                                               B.

      The trial court found that Father abandoned the children by willfully failing to visit
and willfully failing to support them:

              In particular, as for grounds, the abandonment, failure to visit[,]
              the Court finds that [in] the four months prior to the filing of this
              Petition . . . in January of ‘09, [Father] had visited one time, and
              that was a token visitation which was not sufficient and,
              therefore, he abandoned the [C]hildren by failing to visit during
              the months prior [to] this Petition being filed.

              The Court acknowledges that the Circuit Court has recently
              reinstated some visitation for [Father], and he has begun visiting
              again. So it is possible the Court of Appeals looks at this and
              that they may find that that ground has not been met, but be that
              as it may, the Court is confident the other three grounds will
              stand.

              The abandonment, failure to support, there has been no proof or
              evidence that [Father] ever paid child support. He was ordered
              to pay $75.00 a month beginning in October of 2007. There is
              no evidence that he has made any payments in child support for
              these [C]hildren.

        For purposes of establishing either form of abandonment – failure to visit or failure
to provide support – the relevant four-month period in this case is September 27, 2008
through January 27, 2009. The proof at trial showed that Father visited only once during this
four-month period – on December 31, 2008. Father’s last visit before then was over a year
earlier. The case manager characterized this single visit as “token” in nature; we agree.

                                              -11-
Father suggests that this ground was not established because there was a “no-contact” order
in place for part of the relevant period. However, the proof indicated that the court advised
Father at an October 2008 hearing that if he passed a drug test, visitation would be permitted.
The DCS case manager testified that Father did not submit to the drug test until December
2008 and thereafter had the one visit with the children later that same month. Father also
emphasizes that since the filing of the petition, he began exercising his right to visit the
children more regularly. While commendable, this does not change the fact of his earlier
abandonment of the children. “Abandonment may not be repented of by resuming visitation
or support subsequent to the filing of any petition seeking to terminate parental . . . rights .
. . .” See Tenn. Code Ann. Sec. 36-1-102(1)(F).

        As to child support, Father was ordered to begin paying $75 a month beginning on
October 25, 2007.2       At trial, Ms. Shirley testified that Father had maintained stable
employment working for a temporary employment service “with some gaps in between” for
the past year to year and a half. Nonetheless, he made no child support payments during the
critical four-month period and none at all until May 2009, some five months after he was at
risk of having his rights terminated on this ground alone.

                                                    C.

       As we have noted, Father participated in the creation of the permanency plan and
agreed that its objectives and requirements toward the goal of reunifying him with the
children were reasonable. Regarding Father’s progress, the trial court found as follows:

                He did complete a drug rehab which was positive, however,
                [Father] relapsed and has continued to have drug issues.

                As far as the mental health assessment, there has been evidence
                introduced that he had an intake, but there has been no evidence
                introduced . . . that he followed through with mental health
                counseling and has continued to go to mental health counseling.

                Further, [Father] has failed to show that he has proper and
                adequate housing and . . . , once the [C]hildren were in custody,
                he continued to commit criminal offenses, and . . . and the
                majority of those offenses involved drugs which further proves


        2
         At trial, Ms. Shirley testified that Father was to begin paying child support on October 25, 2006.
We are unable to ascertain the correct date because the order establishing support is not before us; however,
the discrepancy is not relevant to our analysis.

                                                    -12-
              that [Father] failed to address his drug issues. So the Court
              finds by clear and convincing evidence [that Father] has
              substantially failed to comply with the Permanency Plan.

       The proof showed that of his stated responsibilities under the plan developed in 2006,
Father had obtained employment in part of 2008-09 and completed the required mental health
and alcohol & drug assessments. In addition, the case worker indicated that Father “actually
completed an inpatient [alcohol & drug] program,” but relapsed – after exiting treatment,
Father did not remain sober as reflected by the new drug-related criminal charges he
incurred. There was no evidence that Father had obtained stable housing adequate for the
children. DCS records reflected that at the time of the hearing, Father had a two-bedroom
apartment that he was sharing with a girlfriend and her child. According to Ms. Shirley of
DCS, there was no room for the children at the residence. The evidence showed that while
the children remained in DCS custody, Father continued to incur new criminal charges –
driving under the influence and leaving the scene of an accident with property damages in
one incident in March 2007; possession of drug paraphernalia in May 2007; theft under $500
and public intoxication in September 2007; and possession of drug paraphernalia in
September 2007 – for all of which he was convicted pursuant to his pleas of guilty.

        Lastly, regarding the permanency plan, Ms. Shirley testified that Father had never
filed any objections to any of the court orders regarding custody of the children, had never
contacted her to discuss or question what he needed to do to have the children returned to
him, and had never noted any objection to the affidavits entered by DCS reciting their
reasonable efforts to reunite the family.

                                             D.

       The trial court found that the final ground, commonly referred to as “persistent
conditions,” was also established:

              As to ground number four, persistent conditions, the Court finds
              that the conditions which caused the [C]hildren to come into
              custody, which was [Father’s] drug use . . . , [and] lack of stable
              housing. Those conditions continue to exist. [Father], based
              upon the Testimony of Ms. Shirley, is living with a girlfriend
              and a child, and there is no proof that that’s adequate housing,
              but he would have to come forward to show that he has an
              adequate house or could provide an adequate house, and he has
              failed to do that. Furthermore, there continue to be some drug



                                             -13-
                  charges. So the Court finds by clear and convincing evidence
                  that these conditions continue to exist.

       Father’s drug abuse was a challenge and presumably the most significant obstacle he
faced in regaining custody of the children. Among other problems, his drug use led to the
children’s removal and, despite completing inpatient drug treatment, Father had been
repeatedly arrested for drug-related offenses while the children were living in foster care.
At trial, Ms. Shirley testified that she felt Father’s conduct displayed a “total wanton
disregard for the welfare of the children.” We agree. Other problematic conditions also
remained – there was no proof of housing suitable for the children and, obviously, Father had
broken laws and violated the conditions of his earlier probation by his additional arrests.

        In short, the evidence showed that Father had made some progress, but fell far short
of remedying the underlying causes for the children’s removal from his custody. Moreover,
the limited proof gave no indication that the persistent conditions would be remedied at an
early date. In summary, the evidence does not preponderate against the trial court’s finding
that each of the grounds alleged in support of terminating Father’s parental rights was clearly
and convincingly established.

                                                     VII.

       Having concluded that the evidence does not preponderate against the trial court’s
“clear and convincing” finding of grounds for termination, we next consider whether the
decision is also in the best interest of the children. We are guided in our review by the
relevant statutory factors set forth in Tenn. Code Ann. § 36-1-113(c).3


       3
           The factors are as follows:

                  (1) Whether the parent or guardian has made such an adjustment of
                  circumstance, conduct, or conditions as to make it safe and in the child’s
                  best interest to be in the home of the parent or guardian;

                  (2) Whether the parent or guardian has failed to effect a lasting adjustment
                  after reasonable efforts by available social services agencies for such
                  duration of time that lasting adjustment does not reasonably appear
                  possible;

                  (3) Whether the parent or guardian has maintained regular visitation or
                  other contact with the child;

                  (4) Whether a meaningful relationship has otherwise been established
                                                                                                 (continued...)

                                                     -14-
       The trial court set forth its best interest analysis as follows:

                  The Court finds that these children have been in custody now for
                  approximately over three years, that they have been, are
                  currently in a stable home, and they should remain there, and it’s
                  in their best interest that [Father’s] rights be terminated. The
                  mother has previously surrendered her rights, and the State of
                  Tennessee has partial guardianship, and the Court finds that it
                  would be in the best interest that [Father’s] right be terminated
                  and they be allowed to be adopted. So therefore, the Court is
                  finding that the State has met its burden on the Petition to
                  Terminate.

        As the trial court’s findings suggest, at the time of the trial, the children had remained
in the same pre-adoptive foster home they were placed in for more than three years. To his
credit, Father had begun to visit the children since the termination petition was filed and had


       3
           (...continued)
                   between the parent or guardian and the child;

                  (5) The effect a change of caretakers and physical environment is likely to
                  have on the child’s emotional, psychological and medical condition;

                  (6) Whether the parent or guardian, or other person residing with the parent
                  or guardian, has shown brutality, physical, sexual, emotional or
                  psychological abuse, or neglect toward the child, or another child or adult
                  in the family or household;

                  (7) Whether the physical environment of the parent’s or guardian’s home
                  is healthy and safe, whether there is criminal activity in the home, or
                  whether there is such use of alcohol or controlled substances as may render
                  the parent or guardian consistently unable to care for the child in a safe and
                  stable manner;

                  (8) Whether the parent’s or guardian’s mental and/or emotional status
                  would be detrimental to the child or prevent the parent or guardian from
                  effectively providing safe and stable care and supervision for the child; or

                  (9) Whether the parent or guardian has paid child support consistent with
                  the child support guidelines promulgated by the department pursuant to §
                  36-5-101.



                                                      -15-
recently began paying child support, albeit months after the petition was filed and years after
the court ordered him to do so. However, there was nothing to show that Father had made
“such an adjustment of circumstance, conduct, or conditions as to make it safe and in the
child’s best interest to be in [his] home. . . .” Father’s continued issues with drug and alcohol
abuse had led to new criminal charges since the children were taken from his custody. As
to housing, there was no indication that the apartment in which he lived with a girlfriend and
her child had adequate space and was otherwise suitable for the children. Meanwhile, the
children were in a stable home and all of their needs were being met by their foster parents.
The older child was partially deaf and mildly mentally challenged and was receiving special
education services as well as in-home services. According to their case manager, he had
“drastically improved just over the last couple of months” before the hearing. The younger
child had no developmental issues and both were otherwise healthy and doing well. The
foster parents were willing to adopt both children. Our review of the record leads to the
conclusion that termination of Father’s parental rights is in the best interest of the children.

                                             VIII.

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,
Eric B. This case is remanded to the trial court, pursuant to applicable law, for enforcement
of the court’s judgment and for the collection of costs assessed below.




                                            _______________________________
                                            CHARLES D. SUSANO, JR., JUDGE




                                              -16-
