In Re:Alyssa Y.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 8, 2013

IN RE ALYSSA Y. ET AL.

Appeal from the Juvenile Court for Knox County
No. 104308 Timothy E. Irwin, Judge

No. E2012-02274-COA-R3-PT - Filed June 17, 2013

This is a termination of parental rights case, focusing on Alyssa Y. and Brian Y. (“the
Children”), the minor twin children of Juanita Y. (“Mother”). When the Children were three
months old, their maternal grandmother filed a petition with the Knox County Juvenile Court,
asserting that the Children were dependent and neglected due to Mother’s drug use. The
Children were placed in the custody of the maternal grandmother by order of the court
entered January 23, 2009. When the maternal grandmother became unable to care for the
Children in November 2010, they were taken into custody by the Tennessee Department of
Children’s Services (“DCS”) and placed in foster care. DCS filed a petition to terminate the
parental rights of Mother on April 26, 2012. The petition alleged several grounds for
termination, including abandonment based on Mother’s willful failure to visit and support
the Children, persistent conditions, and substantial noncompliance with the permanency plan.
Following a bench trial, the trial court granted the petition after finding by clear and
convincing evidence that Mother had abandoned the Children due to her failure to pay child
support. The court also found clear and convincing evidence that Mother had failed to
substantially comply with the permanency plan and that termination of parental rights was
in the Children’s best interest. Mother has appealed. We affirm.

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

T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., P.J., and D. M ICHAEL S WINEY, J., joined.

Heather G. Inman, Knoxville, Tennessee, for the appellant, Juanita Y.

Robert E. Cooper, Jr., Attorney General and Reporter, and Mary Byrd Ferrara, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.

OPINION

I. Factual and Procedural Background

The Children were born on July 7, 2008. At the time, Mother was living with the
Children’s biological father, but the parents were not married.1 When custody of the
Children was removed from Mother in January 2009 and placed with the maternal
grandmother, the court entered a no-contact order against Mother. In July 2009, while the
Children were still in the custody of the maternal grandmother, Mother gave birth to another
child. That child was immediately removed from Mother’s care and custody because Mother
tested positive for cocaine upon the child’s birth. In September 2009, Mother was permitted
to begin supervised visits with the Children. The maternal grandmother provided care for
the Children until November 2010, at which time she was no longer able to continue because
her own mother needed assistance. When the maternal grandmother contacted DCS, the
agency acquired temporary custody of the Children on November 5, 2010. Mother testified
she was unaware that DCS had acquired custody of the Children until the caseworker
contacted her shortly after the Children were placed in DCS custody. Mother met with the
caseworker and other DCS employees on December 3, 2010, thereby participating in the
development of a permanency plan. Mother admitted she was using crack cocaine at that
time.

The initial permanency plan noted that Mother was struggling with the challenge of
drug addiction and listed her freedom from drugs and alcohol as a desired outcome. The
permanency plan established several goals for Mother, including that she have a drug and
alcohol assessment and follow any recommended treatment. The plan also required Mother,
during such treatment, to identify stressors that had led her to abuse drugs and to work with
her therapist to develop a relapse prevention plan. The permanency plan requirements further
obligated Mother to submit to random drug screens, refrain from associating with known
drug users, have a mental health assessment and follow all recommendations, provide a safe
and stable home, maintain contact with DCS, pay child support of $40 per month, visit the
Children regularly, take parenting classes, and demonstrate appropriate parenting skills.

A second permanency plan with similar requirements was developed on September
1, 2011. This plan specifically provided that Mother continue with her substance abuse
program at Helen Ross McNabb until successfully released and follow all aftercare
recommendations. Other plan requirements included Mother maintaining contact with her

1
The parental rights of the biological father were terminated through independent proceedings.

-2-
case manager and allowing the case manager to visit her home to determine if it was
appropriate for the Children. Mother was also required, inter alia, to continue visiting the
Children and paying child support of $40 per month.

At some point in 2011, Mother informed the case manager that she was seriously
dating a person named Brian L. This man was included in Mother’s meetings with DCS.
Brian L. failed a drug screen and was asked to submit to a hair follicle test. He did not
comply. Mother was informed that she could not have the Children around Brian L. until he
was able to demonstrate that he was drug-free.

As Mother had shown great progress toward her permanency plan requirements by
late 2011, a trial home placement began on December 2, 2011. At the time, Mother was
renting a home in Oak Ridge, which the case manager deemed an appropriate residence for
the Children. The maternal grandmother also was living with Mother, and was available to
provide care for the Children while Mother was at work. The evidence reflects that Mother
was working thirty-five to forty hours per week at Bread Box during this period.

On December 11, 2011, the DCS case manager, Ms. Lawrence, made a random visit
to Mother’s home to check on the Children. She found that they had been left there alone
with Brian L. Ms. Lawrence was told by Brian L. that the maternal grandmother had been
called away on a family emergency and had contacted him to care for the Children until
Mother returned home from work. Ms. Lawrence called Mother, instructing her to come
home immediately. Mother complied. Because Mother claimed to have no knowledge that
Brian L. had been asked to stay with the Children, Ms. Lawrence allowed the trial home
placement to continue.

Several days later, Ms. Lawrence made another home visit to deliver Christmas gifts
for the Children. At this time, Ms. Lawrence requested that Mother submit to a drug screen,
the results of which were positive. Mother claimed she had taken a hydrocodone that was
left from a prescription. Ms. Lawrence directed that Mother proceed to the laboratory for an
additional screen. The laboratory screen similarly showed that Mother tested positive for
hydrocodone and hydromorphone. As a consequence, the trial home placement was
disrupted, and the Children were returned to foster care on December 19, 2011.

DCS convened a Child and Family Team Meeting on December 21, 2011, during
which Mother was told that she needed to present three months of clean drug screens in order
to regain custody. Thereafter, Mother did not maintain contact with Ms. Lawrence. She also
did not appear for a scheduled court hearing or her visit with the Children in January 2012.
Mother admitted that she relapsed in January 2012, blaming her regression on the stress of
having the Children removed at Christmas and her father’s recent death. Despite Ms.

-3-
Lawrence’s attempt to locate Mother by phone and through family members, she was unable
to do so. Ms. Lawrence did not hear from Mother until March 21, 2012, at which time
Mother called, indicating she desired the Children’s return. A meeting was scheduled
between Mother and DCS on April 4, 2012. By agreement, Mother was allowed to begin
visiting the Children again on April 11, 2012. DCS subsequently filed the petition seeking
termination of Mother’s parental rights on April 26, 2012.

A bench trial was conducted over the span of three non-consecutive days. Following
the trial, the court entered an order that included extensive findings of fact with reference to
termination of Mother’s parental rights. The court found that the statutory grounds of
abandonment for failure to support and substantial noncompliance with the permanency plan
had been proven by clear and convincing evidence. The court also found, based on clear and
convincing evidence, that termination was in the Children’s best interest. Mother timely
appealed.

II. Issues Presented

Mother presents the following issues for our review:

1. Whether the trial court properly concluded that Mother failed to
substantially comply with the requirements of the permanency plan.

2. Whether the trial court properly concluded that Mother abandoned her
children by failing to pay child support for four months prior to the
filing of the termination petition.

3. Whether the trial court properly concluded that DCS made reasonable
efforts to assist Mother in the completion of the tasks identified by her
permanency plan.

4. Whether the trial court properly concluded that it was in the best
interest of the Children to terminate Mother’s parental rights.

III. Standard of Review

In a termination of parental rights case, this Court has a duty to determine “whether
the trial court’s findings, made under a clear and convincing standard, are supported by a
preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The
trial court’s findings of fact are reviewed de novo upon the record, accompanied by a
presumption of correctness unless the evidence preponderates against those findings. Id.;

-4-
Tenn. R. App. P. 13(d). Questions of law, however, are reviewed de novo with no
presumption of correctness. In re Bernard T., 319 S.W.3d 586 (Tenn. 2010). The trial
court’s determinations regarding witness credibility are entitled to great weight on appeal and
shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling, 92
S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not absolute
and parental rights may be terminated if there is clear and convincing evidence justifying
such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599
(1982)). As our Supreme Court has instructed:

In light of the constitutional dimension of the rights at stake in
a termination proceeding under Tenn. Code Ann. § 36–1–113,
the persons seeking to terminate these rights must prove all the
elements of their case by clear and convincing evidence. Tenn.
Code Ann. § 36–1–113(c); In re Adoption of A.M.H., 215
S.W.3d at 808–09; In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The purpose of this heightened burden of proof is to
minimize the possibility of erroneous decisions that result in an
unwarranted termination of or interference with these rights. In
re Tiffany B., 228 S.W.3d 148, 155 (Tenn. Ct. App. 2007); In re
M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005). Clear and
convincing evidence enables the fact-finder to form a firm belief
or conviction regarding the truth of the facts, In re Audrey S.,
182 S.W.3d 838, 861 (Tenn. Ct. App. 2005), and eliminates any
serious or substantial doubt about the correctness of these
factual findings. In re Valentine, 79 S.W.3d at 546; State Dep’t
of Children’s Servs. v. Mims (In re N.B.), 285 S.W.3d 435, 447
(Tenn. Ct. App. 2008).

In re Bernard T., 319 S.W.3d at 596.

IV. Substantial Noncompliance with Permanency Plan

The trial court terminated Mother’s parental rights, inter alia, on the ground that she
failed to substantially comply with the reasonable responsibilities set out in her permanency
plan. Tennessee Code Annotated § 36-1-113(g)(2) (Supp. 2012) provides, as relevant to this

-5-
action, 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:

...

(2) There has been substantial noncompliance by the parent or
guardian with the statement of responsibilities in a permanency
plan pursuant to the provisions of title 37, chapter 2, part 4.

In its findings regarding Mother’s efforts under the permanency plan, the trial court
stated in relevant portion:

Permanency plans were developed for the mother and the children on
December 3, 2010 and September 1, 2011. Among other things, the
permanency plans required the mother to: (a) complete an alcohol and drug
assessment, comply with resulting treatment recommendations, identify
stressors that led to substance abuse, work with a therapist to develop a relapse
prevention plan, refrain from associating with known drug users, and
demonstrate sobriety by passing random drug screens; (b) complete a mental
health assessment, comply with any resulting treatment recommendations, and
address domestic violence issues in counseling along with any other issues
identified during the assessment; (c) have a legal source of income and safe,
stable housing free from environmental hazards, illegal activity, drug use,
domestic violence, or other risks to the children; and (d) attend and
successfully complete age-appropriate parenting classes and demonstrate
appropriate parenting and the ability to provide a structured environment for
the children. With the assistance of DCS, the mother substantially complied
with the tasks on the plan; Case Manager Lawrence assisted the mother with
referrals for Alcohol and Drug assessments, urine drug screening, hair follicle
drug screening, referrals for mental health treatment, referrals for parenting
classes, visitation, on-going case management, in-home services and a trial
home placement.

A trial home placement was started with the mother and the children on
December 2, 2011.

-6-
...

The trial home placement was disrupted on December 21, 2011. Respondent
was advised, during a Child and Family Team Meeting held that day, that she
needed to have clean drug screens for three months, cease any use of narcotic
pain medication, advise her physician of her addiction and provide copies of
any prescriptions to the Department and maintain her progress that she had
otherwise made on the plan. Case Manager [Lawrence] discussed Alcohol and
Drug treatment with the mother and referred her to Child and Family of
Tennessee and Hope of East Tennessee.

A visit was subsequently scheduled via text message for January 201[2] and
the mother failed to appear for that scheduled visitation. The mother then
failed to respond to communication with Case Manager Lawrence and failed
to appear at scheduled Court hearings and other meetings regarding the
children. Case Manager Lawrence attempted to contact the mother through
her contacts with the family and through the contact information that she had
for the mother. Respondent’s family was also concerned about the mother’s
whereabouts and condition. Respondent relapsed on cocaine in January 2012.

...

Respondent provided documentation of an Alcohol and Drug Assessment
conducted by Mike Stickford, which she submitted to on July 23, 2012.
Respondent did not disclose her relapse in January and February 2012. The
documentation showed that she stated that she had not used any substances in
the previous eighteen months. Mr. Stickford testified that this relapse
information would have been important to his assessment of Respondent’s
needs. Respondent provided documentation of a second Alcohol and Drug
Assessment conducted by John West on August 16, 2012. Respondent did
disclose her relapse in February 2012, but failed to disclose her omissions
during the previous assessment with Mr. Stickford and failed to disclose that
she had refused to provide a urine sample for drug screening on July 25, 2012.

Respondent was ordered to submit to a urine drug screen on July 25, 2012, to
be performed by the Knox County Juvenile Court staff, Shanna Cheatam.
Respondent initially indicated that she was ready to provide the sample;
however, when instructed on how to provide said sample, Respondent could
not urinate. Respondent failed to provide a urine sample for drug screening
on that date, which the Court found to be a “failed” drug screen. . . .

-7-
 [T]he Court finds that Respondent has failed to comply in a substantial manner
with those reasonable responsibilities set out in the permanency plans related
to remedying the conditions which necessitate foster care placement.

(Paragraph numbers omitted.)

Regarding a parent’s substantial noncompliance with a permanency plan, as this Court
has previously explained:

Terminating parental rights based on Tenn. Code Ann. § 36-1-113(g)(2)
requires more proof than that a parent has not complied with every jot and tittle
of the permanency plan. To succeed under Tenn. Code Ann. § 36-1-113(g)(2),
the Department must demonstrate first that the requirements of the permanency
plan are reasonable and related to remedying the conditions that caused the
child to be removed from the parent’s custody in the first place, and second
that the parent’s noncompliance is substantial in light of the degree of
noncompliance and the importance of the particular requirement that has not
been met. Trivial, minor, or technical deviations from a permanency plan’s
requirements will not be deemed to amount to substantial noncompliance.

In re M.J.B., 140 S.W.3d 643, 656-57 (Tenn. Ct. App. 2004) (internal citations omitted).

Mother’s latest permanency plan, developed on September 1, 2011, provided that
Mother needed to be alcohol and drug free in order to parent the Children appropriately. This
plan recognized that Mother had completed outpatient treatment at Helen Ross McNabb for
her substance abuse issues and required that she continue with the program until successfully
released. Mother’s responsibilities under the plan also included her following all aftercare
recommendations, including the attendance of two NA meetings per week. Mother was also
required to submit to and pass random drug screens.

The plan further noted that Mother had not parented the Children in two years and
therefore would need to demonstrate appropriate parenting skills. Mother’s responsibilities
under the permanency plan also required her to maintain her employment and housing, allow
the case manager to visit her home to determine if it was appropriate for the Children, get her
driver’s license reinstated, continue visiting the Children, and remain in contact with the case
manager. Mother was further responsible for following the mental health recommendations
and paying child support of $40 per month. The trial court found, and the evidence supports
such finding, that all of these requirements were “reasonable and related to remedying the
conditions that caused the child to be removed from the parent’s custody in the first place.”
See M.J.B., 140 S.W.3d at 656-57.

-8-
 One of the essential goals of the parenting plan was for Mother to demonstrate that
she was free of drugs so that she could appropriately parent the Children. Mother attended
an outpatient drug rehabilitation program at Helen Ross McNabb in 2011 but failed some of
the drug screens administered by that program in March and April 2011. Despite those failed
drug screens, Mother successfully completed the program and was released to pursue
aftercare in June 2011. Mother was allowed to have a trial home placement with the
Children in December 2011, but that placement was disrupted after Mother failed two drug
screens. Mother admittedly relapsed thereafter, resuming her use of cocaine. Ms. Lawrence
was unable to locate Mother from January 1, 2012, to March 21, 2012. At the time of trial,
Mother had allegedly been drug-free since February 2012. A hair follicle test administered
to Mother on May 17, 2012, with a ninety-day time frame, was positive for cocaine. A
subsequent hair follicle test administered on June 5, 2012, incorporating a sixty-day time
frame, was negative.

At the conclusion of the first day of testimony in the termination hearing on July 25,
2012, Mother was ordered by the trial court to submit to a drug screen. With reference to
the screen, Mother claimed she was unable to urinate. The court officer who was
administering the test stated in pertinent part:

When we initially went to the bathroom, there was an urgency to go, and then
[Mother] sat down on the toilet and put her hands between her legs, but I
didn’t see a stream . . . so I asked her to remove her hands and to squat over
the toilet initially, so I could see a urine stream into the cup. At that point, she
couldn’t go.

When questioned regarding the significance of being able to view the urine stream, the
witness explained that this ensured that the urine stream was natural, rather than coming from
a condom or other object placed in the woman’s body. When Mother refused to provide a
urine sample, the trial court considered the refusal to be a failed test.

In addition, the trial court afforded little credence to Mother’s eleventh-hour drug and
alcohol assessments obtained on the eve of trial as she had not been completely honest with
the providers. At the time of trial, Mother’s most recent efforts toward dealing with her
addiction were to attend weekly NA meetings and two sessions with Mr. West. Mother
testified that she felt she no longer had a drug problem. Given the severity and longevity of
Mother’s drug problem, her efforts appear minimal at best.

An additional permanency plan goal required Mother to have safe and stable housing.
She testified, however, that she was in the process of moving from her prior home in Oak
Ridge. Mother had recently resumed visitation in April 2012, having last visited the Children

-9-
in December 2011. Mother did not maintain contact with Ms. Lawrence, the latter being
unable to find Mother from January to March 2012. In addition, Mother failed to get her
driver’s license reinstated and failed to maintain stable employment, instead moving from
job to job. Mother also failed to make any child support payments whatsoever.

As this Court has previously stated with reference to substantial noncompliance with
permanency plan requirements:

All of these requirements were in place to achieve one ultimate goal: for
Mother to provide a safe and stable environment to properly raise her children.
In fact, the permanency plan listed as an expected goal that Mother “will have
a suitable home life for her children. [Mother] will demonstrate that she can
provide a stable home life for her children by maintaining stability in her own
life and complying with this plan of care until permanency is achieved.” It
makes no difference how many parenting classes are completed if the parent
is incapable or unwilling to learn anything from the classes and adjust his or
her behavior accordingly. While we believe Mother did complete many of the
physical requirements of the plan by attending parenting classes and the like,
she did not accomplish any of the goals of the plan. In addition, as noted
above there were several important specific requirements of the plan that
Mother did not comply with, such as staying drug and alcohol free. The
evidence does not preponderate against the factual findings of the Juvenile
Court. We further conclude that the facts as found by the Juvenile Court are
such that we cannot conclude the Juvenile Court erred when it held there was
clear and convincing evidence that Mother had failed to substantially comply
with the terms of the permanency plan.

State Dep’t of Children’s Servs. v. C.D.W., E2004-00623-COA-R3-PT, 2005 WL 94468 at
*10 (Tenn. Ct. App. Jan. 11, 2005).

Similarly, in the case at bar, Mother complied with some of the requirements of her
permanency plan but fell far short of achieving the plan’s ultimate goal. Mother obtained
alcohol and drug assessments and followed through with the recommended treatment, but she
relapsed thereafter. Mother obtained safe and stable housing, but she was in the process of
moving at the time of trial. Mother maintained a job at the time of trial, but she had changed
employers no less than four times in the previous year. Mother did exercise periods of
coparenting that were successful, but she also presented occasions when she failed to visit
and could not be found by the case manager. Mother’s trial home placement lasted only a
matter of days before being disrupted due to her drug use. These Children were four years
old at the time of trial and had only been parented by Mother for a total of approximately

-10-
three months of their lives. In short, while Mother completed some of the requirements of
the plan, she failed to demonstrate accomplishment of the plan’s overriding objective, which
was that she provide a safe and stable environment to properly raise her children.

Mother contends that the trial court failed to consider the serious nature of drug
addiction and relies upon the case of In re M.J.M., Jr., M2004-02377-COA-R3-PT, 2005 WL
873302 (Tenn. Ct. App. Apr. 14, 2005). Mother asserts that, like the parent in M.J.M., Jr.,
she worked her plan vigorously and continued to do so until the time of trial, such that her
efforts should not be dismissed as “too little, too late.” Id. at *10. In M.J.M., Jr., however,
the mother was given only six months to fulfill the requirements of the permanency plan
before a petition to terminate was filed. The Court found such to be insufficient time to
allow the mother to address her drug problem. Id. In the present action, Mother had eighteen
months to substantially comply with the requirements of her permanency plan but failed to
do so. M.J.M., Jr., is factually distinguishable, and Mother’s reliance thereon is misplaced.
See Id. We conclude that the trial court did not err in holding that there existed clear and
convincing evidence that Mother failed to substantially comply with the terms of the
permanency plan.

V. Abandonment - Failure to Support

The trial court also found clear and convincing evidence that Mother abandoned the
Children by failing to pay child support for four months preceding the filing of the petition
to terminate. Tennessee Code Annotated § 36-1-113(g)(1) authorizes termination of parental
rights when:

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

Tennessee Code Annotated § 36-1-102(1)(A)(i) (2010) defines abandonment, in relevant
part, as:

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 . . . .

Pursuant to the statute, the court must find that a parent’s failure to visit or support was
willful. In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007). As this Court has

-11-
previously explained:

The concept of “willfulness” is at the core of the statutory definition of
abandonment. A parent cannot be found to have abandoned a child under
Tenn. Code Ann. § 36-1-102(1)(A)(i) unless the parent has either “willfully”
failed to visit or “willfully” failed to support the child for a period of four
consecutive months.

In re Audrey S., 182 S.W.3d at 863.

Failure to visit or support a child is willful when a person is “aware of his or her duty
to visit or support, has the capacity to do so, makes no attempt to do so, and has no justifiable
excuse for not doing so.” Id. at 864. This Court further explained:

The willfulness of particular conduct depends upon the actor’s intent. Intent
is seldom capable of direct proof, and triers-of-fact lack the ability to peer into
a person’s mind to assess intentions or motivations. Accordingly, triers-of-fact
must infer intent from the circumstantial evidence, including a person’s actions
or conduct.

Id. (citations omitted).

Mother contends that the trial court erred in finding that her failure to support was
willful. She specifically asserts that she was financially unable to pay any support due to her
periodic lack of employment and resulting lack of income. She also urges that she cannot
be found to have failed to support the Children because her tax refund was intercepted and
applied to her child support obligation. We disagree.

The trial court made the following pertinent findings regarding the issue of willful
failure to support:

[Mother] has been employed cleaning houses, at the Breadbox convenience
store, Kentucky Fried Chicken, Chili’s and Silver Spoon. [Mother] testified
that she earned enough to pay $750 per month in rent and her other monthly
bills. [Mother] testified that she did not pay any child support in the four
months prior to the Petition for Termination of Parental Rights being filed, or
between December 26, 2011 and April 26, 2012.

Upon these facts, the Court finds that [Mother] has abandoned these children
in that [Mother] has willfully failed to support or make reasonable payments

-12-
 toward the support of the children for four (4) consecutive months immediately
preceding the filing of the petition in this cause. [Mother] failed to make any
payments of child support in the four months prior to the filing of the
Termination of Parental Rights Petition, between December 26, 2011 and
April 26, 2012. The Court finds that [Mother] had the ability to pay child
support for the children as evidenced by her continued employment history and
her ability to pay her monthly bills.

(Paragraph numbers omitted.)

Mother was required to pay child support of $40 per month. The trial court found that
Mother’s failure to pay support was willful. We agree. Mother admitted she was working
thirty-five to forty hours per week at Breadbox from June 2011 to December 2011, at which
time she left to accept a better job at Kentucky Fried Chicken. Mother testified that she
earned $8.50 per hour at Breadbox and $11.00 per hour at Kentucky Fried Chicken. Mother
subsequently left her employment with Kentucky Fried Chicken in mid-January 2012 when
she experienced a drug-related relapse. Mother next worked cleaning homes for a period of
time during which she earned $200-250 per week. By the time of trial in August 2012,
Mother had begun employment at Chili’s. In October 2012, Mother was working at Silver
Spoon restaurant. Mother’s employment history evinced that she had worked somewhat
consistently for at least ten months prior to the termination petition being filed.

More significantly, Mother admitted that she was able to support herself and pay her
bills during the respective time frame. The evidence supports the finding that Mother rented
a house in Oak Ridge, for which she paid $750 per month. She also paid personal utility
bills. In addition, Mother paid for various items identified by her permanency plan, such as
drug assessments, rather than seeking assistance from DCS. It is also relevant that Mother
was somehow financially able to procure cocaine and other drugs at various times during the
custody period.

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

This Court has often held that a parent’s demeanor and credibility as a witness “play
an important role in determining intent, and trial courts are accordingly in the best position
to make such determinations.” See, e.g., In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).

-13-
Further, as Tennessee Code Annotated § 36-1-102(1)(G) expressly provides: “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.” The trial court
found by clear and convincing evidence that Mother willfully failed to support the Children
during the relevant reasonable period. Upon our careful review, we conclude that the trial
court’s findings, made under the clear and convincing standard, are supported by a
preponderance of the evidence. This ground for termination of parental rights must likewise
be affirmed.

VI. Reasonable Efforts by DCS

Mother next argues that the trial court erred in finding that DCS made reasonable
efforts to reunify Mother with the Children and therefore erred in terminating Mother’s
parental rights based on substantial noncompliance with the parenting plan. The trial court
found that DCS made such reasonable efforts in this case. We agree.

We have previously defined such reasonable efforts as:

“the exercise of reasonable care and diligence by the department to provide
services related to meeting the needs of the child and the family.” T.C.A. § 37-
1-166(g)(1) (2005). “Reasonable efforts entail more than simply providing
parents with a list of service providers and sending them on their way. The
Department’s employees must use their superior insight and training to assist
parents with the problems the Department has identified in the permanency
plan, whether the parents ask for assistance or not.” In re C.M.M., 2004 WL
438326, at *7 (citing In re D.D.V., No. M2001-02282-COA-R3-JV, 2002 WL
225891, at *8 (Tenn. Ct. App. Feb.14, 2002)). The Department’s efforts,
however, need not be “Herculean,” and it is important to note that “the
remedial responsibility does not rest solely on the Department’s shoulders.
Parents must also make reasonable efforts to rehabilitate themselves and to
remedy the conditions that required them to be separated from their children.”
Id. (citing In re R.C.V., No. W2001-02102-COA-R3-JV, 2002 WL 31730899,
at *12 (Tenn. Ct. App. Nov.18, 2002)). The State has the burden of proving
by clear and convincing evidence that its efforts at reunification were
reasonable under all of the circumstances. Id. at *8; see T.C.A. § 36-1-113(c)
(2005).

State Dep’t of Children’s Servs. v. Estes, 284 S.W.3d 790, 800-01 (Tenn. Ct. App. 2008).

The trial court found that DCS assisted Mother by providing “referrals for Alcohol

-14-
and Drug Assessments, urine drug screening, hair follicle drug screening, referrals for mental
health treatment, referrals for parenting classes, visitation, on-going case management, in-
home services and a trial home placement.” The evidence supports these findings. Mother
posits that DCS failed to provide reasonable efforts because Ms. Lawrence did not inform
her of the Children’s medical or therapy appointments in the months prior to termination and
did not allow her as much visitation. Mother asserts in her brief on appeal that after her
relapse in January 2012, DCS effectively “wrote her off.” We disagree.

The evidence demonstrates that DCS gave assistance to Mother to the extent Mother
would accept it. DCS provided Mother with referrals and arranged for services for Mother
in certain instances, but as Ms. Lawrence testified, Mother often chose to do things her own
way. Mother admitted that she did not ask DCS for assistance. Ms. Lawrence testified that
she provided Mother with information regarding the Children’s appointments when she could
reach her. DCS was still offering visits for Mother until the date of termination of parental
rights. DCS clearly exercised “reasonable care and diligence . . . to provide services related
to meeting the needs of the child and the family” in this case. See Tenn. Code Ann. §37-1-
166(g)(1). Mother’s argument regarding this issue is without merit.

VII. Best Interest of the Children

Finally, Mother contends that DCS failed to show by clear and convincing evidence
that termination of her parental rights was in the Children’s best interest. Again, we disagree.
When at least one ground for termination of parental rights has been established, as here, the
petitioner must then prove by clear and convincing evidence that termination of the parent’s
rights is in the Children’s best interest. White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct.
App. 1994). When a parent has been found unfit by establishment of a ground for
termination, the interests of parent and child diverge, and the focus shifts to what is in the
child’s best interest. In re Audrey S., 182 S.W.3d at 877.

Tennessee Code Annotated § 36-1-113(i) (Supp. 2012) provides a list of factors the
trial court is to consider when determining if termination is in the child’s best interest. This
list is not exhaustive, and the statute does not require the court to find the existence of every
factor before concluding that termination is in a child’s best interest. In re Audrey S., 182
S.W.3d at 878. Further, the best interest of a child must be determined from the child’s
perspective and not the parent’s. White, 171 S.W.3d at 194.

Tennessee Code Annotated § 36-1-113(i) lists the following factors for consideration:

(1) Whether the parent or guardian has made such an adjustment
of circumstance, conduct, or conditions as to make it safe and in

-15-
 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 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.

In the instant action, the trial court considered the above factors and found in pertinent

-16-
part as follows:

[Mother] has not made such an adjustment of circumstance, conduct or
conditions as to make it safe and in the children’s best interest to be in her
home despite reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear possible;
that [Mother] has not made such an adjustment of circumstance, conduct or
conditions as to make it safe and in the children’s best interest to be in her
home; that [Mother] 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; that there is such use
of alcohol or controlled substances as may render [Mother] consistently unable
to care for the children in a safe and stable manner; that [Mother] has not paid
child support consistent with the child support guidelines promulgated by the
Department of Human Services pursuant to T.C.A. 36-5-101.

...

The children are entitled to a safe, secure and loving home. The children have
found such a home with their foster family where they are thriving.

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

The evidence in the record of this cause supports these findings. Mother had not made
such an adjustment of circumstance, conduct, or conditions so as to make it safe and in the
Children’s best interest to be in her home. This was true despite Mother having participated
in a drug rehabilitation program and having received other available social services. The
Children had been in the custody of others for most of their lives, and Mother never
successfully dealt with her drug problem. The proof showed that Mother had been abusing
drugs for several years yet did not think she had a problem at the time of trial and was
making little effort to address this issue. A lasting adjustment does not reasonably appear
possible.

Mother had visited with the Children somewhat regularly, although she did not visit
for a three- to four-month period during her cocaine relapse. The proof established Mother
had a meaningful relationship with the Children prior to the trial home placement. There was

-17-
no evidence regarding whether a meaningful relationship existed by the time of trial. The
proof showed that the foster parents and the Children were very bonded to one another. By
trial, the Children had resided with the foster parents for over a year and were doing well in
that placement. The foster parents testified that they loved the Children and planned to adopt
them. A change of caretakers at this point would likely be detrimental to the Children both
physically and emotionally.

The proof further established that Mother had been unable to safely and appropriately
parent the Children for more than a few days during the trial home placement, which
placement was disrupted due to Mother’s drug use. Mother also failed to keep Brian L. away
from the Children as instructed. She was still “seeing” him and dependent on him for
transportation at the time of trial. Mother had moved from the home that was approved by
the case manager and had not yet relocated to her new home by the time of trial. Finally,
Mother admitted she had not paid child support. From our examination of the record before
us, we determine that there is clear and convincing evidence that termination of Mother’s
parental rights was in the Children’s best interest.

VIII. Conclusion

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

_________________________________
THOMAS R. FRIERSON, II, JUDGE

-18-