In Re: A.Y.M. and A.N.W., Jr.

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs, September 10, 2004

IN RE A.Y.M., AND A.N.W, JR.

Appeal from the Juvenile Court for Wilson County
Nos. 4225 & 4488 Barry Tatum, Judge

No. M2004-00313-COA-R3-PT - Filed March 7, 2005

A.N.W., Sr., father, alone appeals the termination of his parental rights as to two children, A.Y.M.
and A.N.W., Jr., the youngest of which had been removed from parental custody at birth due to the
child’s addiction to cocaine. A.N.W., Sr., challenges the trial court’s findings that DCS exercised
reasonable efforts to provide family services, that A.N.W., Sr., failed to substantially comply with
permanency plan goals, that A.N.W., Sr., had abandoned these two children, and that the best interest
of the children required termination of parental rights. We affirm the trial court’s findings in all
respects and remand the case for such other proceedings as may be necessary.

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

WILLIAM B. CAIN , J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR., P.J., M.S.,
and FRANK G. CLEMENT , JR., J., joined.

Debra L. Dishmon, Lebanon, Tennessee, for the appellant, A.N.W., Sr.

Paul G. Summers, Attorney General and Reporter; Juan G. Villasenor, Assistant Attorney General,
for the appellee, State of Tennessee Department of Children’s Services.

David Kennedy, Lebanon, Tennessee, guardian ad litem for A.Y.S. and A.N.W., Jr.

OPINION

A.Y.M. was five years old when A.N.W., Jr. was born addicted to cocaine. These
circumstances surrounding A.N.W., Jr.’s birth led to the Department of Children’s Services’ (DCS)
investigation into alleged dependence and neglect. This investigation revealed, and the parties do
not dispute, that prior to the birth, A.Y.M., Mother, A.N.W., Sr.,1 and the paternal grandmother, all
occupied the same residence. Seventeen months later, when the Department filed its petition to

1
The children were born out of wedlock with biological parentage of A.N.W ., Sr., being subsequently
established by court-ordered DNA testing.
terminate Mother’s and A.N.W., Sr.’s, parental rights as to the children, Mother had all but
disappeared. A.N.W., Sr., the only parent remaining in contact with DCS and the children, had
occupied three different residences within that same time frame and worked at three different jobs.
He had tested positive for controlled substances 11 of 13 times, and within the three months
preceding the petition’s filing tested positive two out of three times with one of those positive results
being for cocaine.

As part of the investigation begun in December 2001, DCS conducted a study of the
residence occupied as described above. The condition of the home was, in the words of the case
manager Stephanie McGuire, “Horrendous.” The Department, through its child protective services,
instructed A.N.W., Sr., and the paternal grandmother to clean the home in preparation for A.N.W.,
Jr.’s, arrival from the hospital. Shortly after the birth, DCS conducted three visits of the parties’
residence at 55 Upton Heights, Lebanon, Tennessee. Child Protective Services was accompanied
on one of those visits by representatives from the Fire Department and Police Department of
Lebanon. Carol McGuffy, case manager for Child Protective Services, testified at trial before
Juvenile Court Judge Tatum that this visit revealed several fire hazards, presence of digital scales,
an eight-inch bladed knife and several cigarette butts, apparently remnants of marijuana cigarettes.
On Jan. 9, 2002, the Department developed a plan of action requiring the parents to remove the fire
hazards from the residence with the help of the paternal grandmother. By the time the newborn and
Mother arrived at the residence on Jan. 24, 2002, McGuffy, who had opened the investigation, had
determined that sufficient progress had been made in the cleaning of the residence. Unfortunately,
on Feb. 7, 2002, McGuffy had received a report from the paternal grandmother that the mother had
left the home and disappeared. Twelve days later, the infant, A.N.W., Jr., was hospitalized for a two-
night stay. Shortly after the child arrived home from the hospital the second time, Carol McGuffy
returned to the home to find that the conditions had deteriorated:

Q: And what were your observations of the home at that time?

A: The conditions of the home had deteriorated including one of the
violations that were noted in the fire marshal’s report, that there
would not be any extension cords used in the home at all, that
everything had to be directly plugged in. And at the time there was
a strip, a power strip that was found in [A.N.W., Sr.’s] bedroom
where it had been previously.

There was also chemicals in the kitchen mixed with food. Even
though the home was better than it had been originally, it was not
appropriate for the child, any newborn child, let alone a child with
[A.N.W.], Jr.’s medical condition.

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 The children were removed from the home pursuant to an emergency petition for custody,
apparently granted on Feb. 22, 2002.2 Following the removal, a preliminary hearing was held on
Feb. 27, 2002, which resulted in the finding of dependence and neglect. The court required the
appellant, [A.N.W.], Sr., to submit to DNA testing to establish biological parentage. The court
further ordered:

3. That the alleged Father, [A.N.W., Sr.] shall maintain a safe and clean
home for a minimum of three months. The Department of Children’s Services will
conduct random home visits at least twice per month. The children shall not be
returned to the home until said housing has been maintained for three consecutive
months.

4. The Court finds that the Mother, [N.M.] shall establish and maintain clean
and safe housing for a minimum of three months. The Department of Children’s
Services will conduct random home visits at least twice per month. The children
shall not be returned to the home until said housing has been maintained for three
consecutive months.

5. The Court finds that both parents, [N.M.] and [A.N.W., Sr.] are in need
of a parenting assessment; psychological assessment; alcohol and drug assessment
and shall follow any treatment recommended.

6. That both parents shall demonstrate the ability to provide financial support
for themselves and children.

7. The Court has ordered that the Department of Children’s Services shall
perform random drug screening on each of the parents, and that the parents shall
submit to these random drug screens.

8. That the Department of Children’s Services shall make a referral to
Homemaker Services on behalf of [A.N.W., Sr.].

9. The Department of Children’s Services shall assist with referrals for
services and assessments. Parents shall be responsible for following through with
said referrals. Parents shall maintain regular contact with the Department of
Children’s Service Case Manager.

10. That each parent shall pay $30.00 per week, child support to the Central
Receipting Unit, Post Office Box 305200, Nashville, Tennessee 37229, effective
March 8, 2002.

2
The record lacks a copy of the Order granting the removal.

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 11. That both parents shall have one hour per week supervised visitation with
the minor children at the Department of Children’s Services office located at 712 N.
Cumberland Street, Lebanon, Tennessee 37087 at a time to be set up by the
children’s case manager.

12. That a CASA Advocate be appointed to this case.

13. The Adjudication and Ratification Hearing is set for April 5, 2002
at 9:00 a.m.

The adjudicatory and ratification and hearing occurred on April 5, as ordered, at the
conclusion of which the juvenile court entered its Order of April 18, 2002, finding in pertinent part:

Upon the evidence presented and the entire record, from all of which the
Court finds that the children, [A.Y.M.] and [A.N.W., Jr.] are dependent and
neglected children within the meaning of the law by agreement of all parties.
The Court further finds that it [is] contrary to the children’s welfare to remain
in the care, custody, or control of their parents due to Mother’s unstable housing and
employment and drug addiction and [A.N.W., Sr.]’s inadequate housing; there is no
less drastic alternative to removal; all reasonable efforts have been made and services
have been rendered to prevent or eliminate the removal of said children from their
home, such efforts including two failed safety plans that were established in January,
2002 and Homemaker’s Services; and it is in the best interest of the children, and the
public as follows, and IT IS, THEREFORE, ORDERED, ADJUDGED, AND
DECREED:
1. That the Permanency Plan dated March 18, 2002
written and submitted by the Department of
Children’s Services is hereby ratified by the Court as
written. The goal is reasonable and the services are
reasonably related to the achievement of that goal.
2. That the parents, [N.M.] and [A.N.W., Sr.], shall each
pay $50.00 monthly child support, per parent to the
Central Receipting Unit, P.O. Box 305200, Nashville,
Tennessee 37229 effective April 22, 2002. This is in
deviation of the federal child support guidelines due
to the necessity of compliance with other reunification
services, court appearances and for the parent’s to
maintain a stable home for the children to return to.
3. That the prior orders of the Court will remain in effect
unless herein modified.
4. That any matters not enumerated in this Order are
reserved by the Court.

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 Subsequent to this Order, Homemaker Services, which had been prescribed in order to aid
A.N.W., Sr., and paternal grandmother in cleaning and preparing the home for children, was
terminated due to lack of success. On July 29, 2002, pursuant to notice that was issued July 12, the
Department staffed a new Parenting Plan without the benefit of A.N.W., Sr.’s, presence, which
required A.N.W., Sr., to complete parental and psychological assessments, follow through with all
assessment referrals, keep all drug screens negative, maintain safe and clean housing, continue to
attempt to work with Homemaker Services and pay child support as previously ordered by the court.
This plan, with the permanency goal of returning the children to A.N.W., Sr., was approved on Sept.
6, 2002 and ratified by court order on Sept. 23. Despite the requirements of these plans, A.N.W.,
Sr., did not begin to pay child support until November of 2002, for A.N.W., Jr. Although he began
payment earlier for A.Y.M., May 13, 2002, he ceased payment for her support on Dec. 2, 2002,
having paid a total of $23.06 on that day. By his own admission, A.N.W., Sr., was well behind on
his child support as of the filing of the petition to terminate his parental rights:

Q: Let’s talk about the child support that you pay. How much child
support have you paid to date?

A: I think it’s around five or $600, somewhere like that.

Q: Five or $600?

A: I think. I’m not exactly sure because I’ve had it taken out of my
checks. I’ve only paid it one time at the office and I paid $40 then.

Q: Okay, so then are you current with your child support payments?

A: No, ma’am, I’m behind because I was told my parental rights were
already being cancelled so I figured, you know, by, you know, me not
actually knowing, the judge had to cancel and I stood there and
stopped paying.

Q: Are you saying somebody told you to stop paying your child support?

A: No, ma’am. I was told by Stephanie McGuire that my parental rights
were already being cancelled so I just thought what was the point in
keep on paying for something because I figured, I knew I had never
been through this before, I’m not a lawyer.

Q: Okay, you have an attorney, don’t you, [A.N.W.]?

A: Yes, ma’am.

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 Q: Okay, it would have been a whole lot simpler to call Ms. Dishmon
and ask Ms. Dishmon’s legal opinion, wouldn’t it?

A: It would have.

Although A.N.W., Sr., claims to have paid almost $600 in support, the Department’s records
tell a different story. Case Manager McGuire provided the following version of A.N.W., Sr.’s,
payment history:

Q: Is this the child support printout that you received as far as [A.N.W.,
Sr.]’s payments on behalf of [A.Y.M.] and [A.N.W., Jr.].

A: Yes.

Q: And when is it showing that the last payment received?

A: For [A.N.W.], Jr., was 4/7/03.

Q: And what was that amount?

A: Sixty-six – that he paid that day?

Q: That he paid that day.

A: $40.

Q: And the total that he’s paid on behalf of [A.N.W., Jr.], since he’s
been in custody?

A: 66.93.

Q: And in regard to [A.Y.M.], the last date of payment for her was
when?

A: 12/2/02.

Q: And how much has he paid total for [A.Y.M.]?

A: A hundred fifty-seven eighty.

Q: Would you like to make this an exhibit to your testimony?

A: Yes.

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 (Whereupon the previously mentioned document was marked
as Exhibit No. 28 and entered into evidence.)

In it’s Order of Sept. 23, 2002, in addition to ratifying the Permanency Plans dated July 29,
2002, the trial court made the following specific findings:

2. The Department of Children’s Services shall re-staff at the earliest
possible date to include the concurrent goals of
reunification/adoption. This is due to the parents lack of progress
over the previous sixth [sic] (6) months.
3. The Department of Children’s Services made efforts to drug screen
[A.N.W., Sr.] on September 3, 2002 but [A.N.W., Sr.] could not
urinate. [A.N.W., Sr.] agreed to take a drug screen prior to leaving
the Courthouse on September 6, 2002. Earl Berry, a Wilson county
Youth Service Officer, administered the drug screen. After the drug
screen was administered, Mr. Berry was sworn under oath and Mr.
Berry stated that [A.N.W., Sr.] tested positive for Cocaine and
Marijuana and that the results were furnished to both [A.N.W., Sr.]
and his attorney, Debra Dishmon.
4. The Court finds that [A.N.W., Sr.] needs to establish a stable
residence with his name on the lease or note as he currently lives with
his girlfriend.
5. [A.N.W., Sr.’s] live-in girlfriend must participate in supervised
visitation with [A.N.W., Sr.] and his children, prior to [A.N.W., Sr.]
having any unsupervised visits, in their home.
6 That the prior orders of the Court will remain in effect unless herein
modified.
7. The Department shall complete a home study on [A.N.W., Sr.’s] and
complete a criminal background check on his girlfriend.
8. That the prior orders of the Court will remain in effect unless herein
modified.
9. A Review in this matter has been set for January 10, 2003 at
11:00 a.m.

On January 10, 2003, the trial court conducted another hearing to consider the Permanency
Plans revised as of January 6, 2003. In its Order filed January 23, 2003, the trial court specifically
found that the mother and A.N.W., Sr., were not in substantial compliance with the Permanency
Plans. The trial court found that, despite recent progress, the parents’ failure to obtain stable housing
and employment coupled with their inability to remain drug free constituted a barrier to reunification.
The trial court also specifically found that A.N.W., Sr., tested, once again, positive for marijuana and
admitted to marijuana usage within the period. This Order, contained in Exhibit 20 and presented
to the trial court in conjunction with the Quarterly Progress Report on Child in State Custody, was

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also accompanied by the following note concerning the functioning of the children’s family of origin
with reference to the appellant:

[F]ather, has consistently exercised his visitation rights with his children.
[A.N.W., Sr.,] had a job working one day a week at Nashville Auto Auction, but he
quit that job around 11/20/02 and stated to this case manager at a visit on 12/3/02
what was the point of working if he was not going to have money because all of his
paycheck goes to child support. [A.N.W., Sr.,] has not informed this case manager
that he has obtained employment however he was wearing a McDonald’s uniform at
the last visit on 12/31/02 and he left this visit early to go work. [A.N.W., Sr.,] states
that he and his girlfriend, . . ., have broken up and he is now living back with . . ., his
mother. [A.N.W., Sr.,] states his intentions are to obtain his own residence. [A.N.W.,
Sr.,] tested positive for cocaine and marijuana on three random drug screens (9/6/02,
10/29/02, & 12/3/02) and he tested positive for marijuana only on two others
(11/19/02 & 12/17/02). [A.N.W., Sr.] has completed one A&D assessment that
recommended random drug screens but due to his recent drug screen results the DCS
case manager has scheduled another A&D assessment for 1/13/03. [A.N.W., Sr.] has
completed all of his required assessments on the original Permanency Plan (Parenting
Assessment, Psychological Evaluation, & A&D assessment, with another A&D
assessment pending). [A.N.W., Sr.’s] completed assessments reports came back on
1/6/03 and recommend he not be considered as a custodian of his children at this time
and also he needs to receive psychiatric treatment and psychotherapy. [A.N.W., Sr.]
has been diagnosed with Axis I, Bipolar Affective Disorder (provisional), Axis II,
Antisocial Personality Disorder, Axis III, none, Axis IV, Social/Interpersonal -
severe, and Axis V, 55.

On May 23, 2003, the Department filed its petition to terminate the parental rights of the
mother and A.N.W., Sr. The petition alleges, concerning A.N.W., Sr., his failure to support for four
consecutive months prior to the filing of the petition, the failure of reasonable efforts to provide a
suitable home for a period of four months following the removal of the children, the persistence of
the conditions which led to removal, and the persistence of other conditions which would subject
the children to further abuse and neglect, i.e. A.N.W., Sr.’s, drug usage and lack of appropriate
housing and failure to substantially comply with reasonable responsibilities to remedy the conditions
that necessitated the placement. This petition followed closely on the heels of the only parenting
plan staffing that A.N.W., Sr., attended personally. It is at this date that A.N.W., Sr., makes his only
child support payment since December of 2002; and, if his own testimony is to be believed, this
payment is the sum and total of the support payments made in the year 2003, the petition to terminate
parental rights having been heard in September and October of that year. At that hearing, the trial
court considered lengthy testimony from Carol McGuffy, the initial case manager; Tracy Hawks,
from Homemaker Services; Stephanie McGuire, another case manager who worked extensively with
the parents concerning the custody of their children; Patricia Parker, employed with the Department
of Children’s Services Center for Adoption; Michelle Jones, resources coordinator for Onmivision,
the level 2 therapeutic placement for the children; and, by deposition from Dr. Thomas Monroe, III,

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PsyD, the licensed clinical psychologist who performed the parenting assessment and psychological
evaluation of A.N.W., Sr. In addition, the trial court heard from A.N.W, Sr., the paternal
grandmother, a paternal aunt whom the parents presented as a possible relative placement, Jerome
Stewart, a minister and former coworker of A.N.W., Sr., and A.N.W., Sr.’s, girlfriend with whom
he resided at the time of the hearing along with the girlfriend’s cousin, the girlfriend’s two children
and the cousin’s two children. It bears noting with emphasis that A.N.W., Sr.’s, inability to remedy
certain conditions i.e., obtaining stable housing and dealing with his psychological and chemical
issues, contrast and conflict with his intent as evidenced by his continued visitation with the children
and his most recent attempts at rectifying these conditions that have existed more than a year prior
to the filing of the Department’s petition to terminate his parental rights. In its Order Terminating
Parental Rights and Final Decree of Guardianship, the trial court noted this conflict:

13) The issue of [A.N.W., Sr.]’s termination is more difficult. [A.N.W.,
Sr.] has maintained regular contact with his children. (See Trial
Exhibit 30) He has visited regularly and unlike Mother, clearly has
an interest in them. Moreover, in the four to six weeks prior to the
termination hearing [A.N.W., Sr.] has begun to make some progress.
Unfortunately, [A.N.W., Sr.] has wasted seventeen months and still
is not significantly closer to meeting the goals first established in
March 2002.

14) [A.N.W., Sr.]’s actions throughout this unfortunate episode have been
consistent. [A.N.W., Sr.] is not proactive and is dependent upon
others for basic support. On March 15, 2002, [A.N.W., Sr.] met with
Tracy Hawks of the Mid-Cumberland Human Resource Agency
regarding Homemaker Services. Mrs. Hawks advised [A.N.W., Sr.]
that moving out of his mother’s home was an option. [A.N.W., Sr.]
admits he understood that option if he was unable to convince his
mother that the home’s conditions had to improve. Ms. Hawks
obtained a list of available apartments and rent information for units
in Murfreesboro, TN at [A.N.W., Sr.]’s request. [A.N.W., Sr.] did
not act on that information. Homemaker Services were discontinued
after two months because of [A.N.W., Sr.]’s non-compliance and
failure to attain any goal. [A.N.W., Sr.] agrees with Ms. Hawks that
he knew finding better housing was one of his responsibilities.
Furthermore, [A.N.W., Sr.] met with Ms. Hawks only one time and
missed two subsequent scheduled meetings with her.

15) [A.N.W., Sr.] now presents himself as having stable housing.
[A.N.W., Sr.] has been living with a girlfriend and her two children.
[A.N.W., Sr.] is not on a lease or mortgage with the girlfriend.
[A.N.W., Sr.] admits and his girlfriend concurs that [A.N.W., Sr.] has
moved back in with his mother from time to time. This occurs when

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 [A.N.W., Sr.] and his current girlfriend are having relationship
difficulties. Furthermore, [A.N.W., Sr.] and his girlfriend are actually
living at this time with a relative of the girlfriend and her two
children. [A.N.W., Sr.] is not even living in the home of someone
with whom he has a relationship.

16) [A.N.W., Sr.]’s drug use has been a concern from the start. In spite
of being aware that his drug use was an issue, [A.N.W., Sr.]
continued to use drugs regularly. [A.N.W., Sr.] testified that he even
began using cocaine again as an escape from the burdens being placed
on him by this court and DCS. [A.N.W., Sr.] testified that his drug
use actually increased after his children were removed to DCS
custody. [A.N.W., Sr.] testified that he began using drugs more
frequently once he realized that he was going to have take
responsibility for the children since the Mother could not or would
not. This admission is ironic in light of the fact [A.N.W., Sr.]
testified that his own experience of being in DCS custody as a
juvenile was a positive experience.

17) [A.N.W., Sr.] has had two alcohol and drug assessments. Intensive
inpatient treatment was recommended both times. This court told
[A.N.W., Sr.] in January 2003 that he must choose between drugs or
his children. DCS provided [A.N.W., Sr.] with information about a
free alcohol and drug treatment program in April 2003. This is the
same program [A.N.W., Sr.] entered and completed in late August
and early September 2003. In spite of this knowledge, [A.N.W., Sr.]
continued to use throughout most of the time his children were in
DCS custody. [A.N.W., Sr.] tested positive for cocaine six out of
seven times. (See Trial Exhibit #25) [A.N.W., Sr.] admits continuing
to use drugs until after the Termination of Parental Rights petition
was filed.

18) [A.N.W., Sr.] also uses his employment as an excuse for non-
compliance with the tasks and goals set forth in the permanency plans
and for failing to accomplish the listed goals. While regular
employment and income was a goal, [A.N.W., Sr.] admits he failed
to provide proof to DCS of his regular employment nor to keep DCS
advised of where he was working. Throughout the duration of this
case, [A.N.W., Sr.] provided a single pay stub to DCS. [A.N.W., Sr.]
also testified that he immersed himself in work, sometimes holding
three jobs at one time, on order “to get back on his feet”. [A.N.W.,
Sr.] testified that Mother took all his money to buy drugs when she
left in February 2002. In spite of his claims of being employed

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 almost constantly for the last eighteen months, [A.N.W., Sr.]
estimates he has approximately $200 saved for an apartment.
[A.N.W., Sr.] also estimated that he had paid $500-$600 in child
support during that time. The court’s records indicate that [A.N.W.,
Sr.] has only paid $224.73 in child support, well below his court
ordered requirement of $50 per week [sic].3

19) [A.N.W., Sr.]’s mental health is an issue. [A.N.W., Sr.] was required
to obtain a psychological assessment and parenting assessment in
early April 2002. DCS had scheduled this assessment for him for
May 2002. [A.N.W., Sr.] missed the appointment either because he
forgot or because he was busy working, he doesn’t specifically recall
why. [A.N.W., Sr.] finally completed these assessments in October
2002. The assessment recommended that [A.N.W., Sr.] follow up
with a psychiatric assessment. [A.N.W., Sr.] did not follow through
with this either. DCS set up a psychiatric assessment for [A.N.W.,
Sr.] in June 2003. [A.N.W., Sr.] missed that appointment.

20) Even though [A.N.W., Sr.] has completed the psychological
assessment, he faces years of regular treatment and therapy. At most,
Dr. Thomas Monroe, III Pys.D. can only recommend supervised
visitation at this time. Dr. Monroe diagnosed [A.N.W., Sr.] with
Personality Disorder. This is a chronic condition and is most often
characterized by a person who is self-centered and who has little
disregard for others views, opinions or efforts. In most instances two
to five years of therapy is necessary. As explained by Dr. Monroe,
treatment is difficult because the patient will not see the need for
treatment because of their self-absorption and because they have little
regard for others opinions. Moreover, alcohol and drug use makes
successful treatment of this condition difficult. Dr. Monroe says
much more is needed that [sic] merely alcohol and drug treatment in
order to successfully treat [A.N.W., Sr.]’s mental health condition.

21) As a parent, Dr. Monroe states that [A.N.W., Sr.] would have
difficulty fostering a warm, nurturing and loving blond with a child.
[A.N.W., Sr.] would also have difficulty responding to a child’s
needs. To date [A.N.W., Sr.] has not had a psychiatric evaluation nor
has he begun any therapy.

3
Contrary to this particular finding, the record reveals no such award. Nonetheless, the support paid by the
A.N.W ., Sr., is well below the $50 per month actually awarded.

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22) Dr. Monroe observed that [A.N.W., Sr.] has a consistent inability to
acknowledge his responsibility for his children being in DCS custody.
[A.N.W., Sr.] also testified essentially the same in court. [A.N.W.,
Sr.] admits that his mother’s home was not suitable for children.
[A.N.W., Sr.] admits he knew that he needed to find suitable housing.
[A.N.W., Sr.] admits that he knew he needed to refrain from drug use.
[A.N.W., Sr.] admits he knew that he needed to step up and be
responsible. Nonetheless, when pressed, [A.N.W., Sr.] denies
responsibility for the children being in foster care. [A.N.W., Sr.] can
only admit that he relied too much on Mother to do the right thing for
the children.

23) With regard to termination grounds as to [A.N.W., Sr.] several
conclusions are clear. First, [A.N.W., Sr.] only made an effort to
legitimate these children after they were removed from Mother’s
home and placed into DCS custody. Second, [A.N.W., Sr.] admits
that the home where he lived (his mother’s) at the time the children
were removed was not suitable for the children. [A.N.W., Sr.]
eventually moved to another home but has never established a
residence where he has enforceable rights as a tenant or owner. In
fact, [A.N.W., Sr.] has moved in with a girlfriend who has minor
children. [A.N.W., Sr.] and this girlfriend have experienced
relationship difficulties, which have caused [A.N.W., Sr.] to leave
and return to his mother’s home for months at a time. At present,
[A.N.W., Sr.] and his current girlfriend do not have their own
residence but are living with a friend in that friend’s apartment.

24) [A.N.W., Sr.] very likely suffers from a bona fide mental illness for
which he has not sought treatment. Since late last year, [A.N.W., Sr.]
has been aware of a psychological recommendation that he have a
psychiatric evaluation and should begin psychotherapy. This
recommendation is due to diagnosis that [A.N.W., Sr.] has a Bipolar
Affective Disorder and an Antisocial Personality Disorder with
Borderline Features. Because of these diagnoses, a licensed clinical
psychologist says unequivocally that [A.N.W., Sr.] cannot be
considered as a custodian of these children at this time. In fact, this
same expert says that any visitations at this time should be
supervised. This expert also says that typically, treatment for
[A.N.W., Sr.]’s conditions will take years. This expert states that
[A.N.W., Sr.] is a dangerous man. Again, [A.N.W., Sr.] has offered
no expert proof to the contrary about these psychological findings.

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25) [A.N.W., Sr.]’s mental health and treatment is made all the more
problematic by [A.N.W., Sr.]’s knowing and deliberate use of drugs.
[A.N.W., Sr.] readily admits that he knew when the children were
placed into DCS custody that his drug use was a concern. [A.N.W.,
Sr.] admits he knew that he needed to seek drug treatment and, more
importantly, abstain from drug use. In spite of this knowledge,
[A.N.W., Sr.]’s drug use increased. Only until the petition to
terminate his parental rights filing, did [A.N.W., Sr.] take steps to
address his drug usage. [A.N.W., Sr.] only completed a drug
rehabilitation program within 45 days of this hearing and was
admittedly using drugs as recently as 120 days prior to this hearing.
According to Dr. Monroe, [A.N.W., Sr.]’s drug use makes any
successful psychotherapy even less likely.

26) [A.N.W., Sr.] contends that his employment prevented him from
complying with the tasks set out in the permanency plans. Granted,
[A.N.W., Sr.] has been steadily employed throughout this episode.
Obviously he is not lazy. [A.N.W., Sr.] justifies this almost singular
focus on employment due to the need to support his children and to
be able to establish his own residence. Nonetheless, [A.N.W., Sr.]
has contributed only nominal financial support and has saved around
$200, barely enough for the most minimal deposit for rent.

27) [A.N.W., Sr.] has noble intentions and desires. Everyone is
convinced he cares for his children and wants what is best for them.
[A.N.W., Sr.] is unable or unwilling to make the commitment needed
over the long haul for these children. [A.N.W., Sr.] is very able and
willing to make the superficial commitment of making regular
supervised visits. [A.N.W., Sr.] has failed to take the more
substantive steps of proving that he is capable or willing to make the
commitment to be a parent seven days a week, twenty-four hours a
day.

28) As to the best interests of the minor children, the court finds that
neither parent has made an adjustment of circumstances, conduct or
conditions as to make it safe and in the children’s best interest to be
in the home; neither parent has made a lasting adjustment after
reasonable efforts by DCS; Mother has not maintained regular
visitation or contact with the minor children; until termination was
filed, there was the continued use of illegal substances by [A.N.W.,
Sr.] and [A.N.W., Sr.] has not presented any negative drug screens
proving his abstinence since the last test administered by DCS;
[A.N.W., Sr.]’s mental health status would be detrimental to the

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 children and prevent him from effectively providing safe and stable
care and supervision for the children; neither parent has paid child
support consistent with the child support guidelines.

THE COURT MAKES THE FOLLOWING CONCLUSIONS OF LAW:

1) These children were found to be dependent and neglected by this
Court and was placed in the custody of the Department of Children’s
Services; the Department made reasonable efforts to prevent removal
or the children’s situation prevented reasonable efforts from being
made prior to removal; the Department has made reasonable efforts
to assist the parents to establish a suitable home for the children for
a period of four (4) months following the removal, but neither parent
has made reasonable efforts to provide a suitable home and have
demonstrated a lack of concern for the children to such a degree that
it appears unlikely that they will be able to provide a suitable home
for the children at an early date.

2) Mother has abandoned these children in that she has willfully failed
to engage in more than token visitation for four (4) consecutive
months immediately preceding the filing of the termination petition.

3) Mother and [A.N.W., Sr.] have abandoned these children in that they
have willfully failed to support or make reasonable payments toward
the support of the children for four (4) consecutive months
immediately preceding the filing of this petition.

4) The children have been removed by order of this Court for a period
of six (6) months; the conditions which led to their removal still
persist and other conditions, specifically the mental health issues of
[A.N.W., Sr.], persist which in all probability would cause the
children to be subjected to further abuse and neglect and which,
therefore, prevent the children’s return to the care of either Mother or
[A.N.W., Sr.]. There is little likelihood that these conditions will be
remedied at any early date so that these children can be returned to
either parent in the near future. The continuation of the legal parent
and child relationship greatly diminishes the children’s chances of
early integration into a stable and permanent home.

5) Despite frequent explanations of the statement of responsibilities set
out in periodic foster care plans prepared for and signed by parents,
they have failed to comply in a substantial manner with those

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 reasonable responsibilities related to remedying the conditions which
necessitate foster care placement.

6) Awarding legal and physical custody of the children to either mother
or [A.N.W., Sr.] would pose a risk of substantial harm to the physical
or psychological welfare of the children.

Now having found that grounds for termination of parental rights exist,
Tennessee Code Annotated § 36-1-113 (I) requires a best interest analysis of nine or
more factors.

1) The evidence is clear that neither Mother nor [A.N.W., Sr.] has made
a significant adjustment of circumstances or conditions to make
placement in either’s home safe or in the children’s best interest.
Although DCS has made reasonable efforts to refer and provide both
parents with resources, neither [A.N.W., Sr.] nor Mother has accessed
these services for any duration to demonstrate a lasting positive
change in their lifestyles.

2) While the Mother has essentially abandoned these children by not
visiting for five months preceding the termination hearing, [A.N.W.,
Sr.] has maintained regular and consistent contact with these children.
In spite of [A.N.W., Sr.]’s regular contact through visits, all such
visits have been limited in duration and have been supervised due
primarily to [A.N.W., Sr.]’s continued drug use. Because these visits
have been so limited, [A.N.W., Sr.]’s relationship with the children
is likewise limited.

3) The evidence indicates that the children see their foster parents as
their primary caregivers and view them as their Mother and [A.N.W.,
Sr.]. Expert testimony from Dr. Monroe also reveals that [A.N.W.,
Sr.] has unrealistic expectations for his children in that [A.N.W., Sr.]
does not appreciate the gradual social and emotional development of
children. Dr. Monroe also opines that [A.N.W., Sr.]’s unrealistic
demands and lack of insight will cause him frustration. This
frustration will likely force [A.N.W., Sr.] into a less nurturing and
more demanding confrontational parenting style. Furthermore, in
light of Dr. Monroe’s prognosis for [A.N.W., Sr.]’s mental health
treatment, many months if not years will pass before [A.N.W., Sr.]
has successfully completed his treatment.

4) [A.N.W., Sr.] has not abused these children. In a sense he has not
actively neglected these children. [A.N.W., Sr.]’s neglect is more of

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 a passive type due to his consistent tendency to rely upon others to
perform tasks that are his responsibility. [A.N.W., Sr.] testified that
he relied upon the Mother to act and take the necessary steps to
prevent these children from languishing in DCS custody. [A.N.W.,
Sr.] was dependent upon the paternal grandmother for housing
initially and deferred to her with regards to cleaning that home and
rendering it suitable for the children’s placement. When that option
failed, [A.N.W., Sr.] made an inquiry for his own housing and DCS
provided him the necessary information. [A.N.W., Sr.] failed to
follow through with those referrals. Finally, [A.N.W., Sr.] began a
relationship with another woman and relied upon her for housing.
Most recently, [A.N.W., Sr.] and his girlfriend are living with yet
another person. [A.N.W., Sr.] has had ample opportunity and notice
to seize the initiative and establish his own housing. At best his
current housing is tenuous.

5) Finally, neither [A.N.W., Sr.] nor Mother have made any significant
contributions towards the children’s financial support though
[A.N.W., Sr.]’s efforts have been greater than Mother’s. Nonetheless,
this lack of support does not provide any indication that [A.N.W., Sr.]
can provide for the daily needs of these children. More telling, this
lack of support once again demonstrates [A.N.W., Sr.] is content to
rely upon others to provide for those needs and indicates his lack of
concern.

6) While the evidence indicates that these children have experienced a
number of placement disruptions while in DCS custody, the evidence
also indicates that they are readily adaptable due to their young ages
and lack of serious emotional or physical issues. To deny termination
and continue to seek reunification is desirable, it is unrealistic due to
the unknown duration and success of [A.N.W., Sr.]’s mental health
treatment and the long-term success of his drug rehabilitation. This
court is confident that permanency through adoption will be attained
long before a successful reunification with [A.N.W., Sr.] will occur.

THEREFORE THE COURT FINDS It is in the best interest of the children
and the public that all of the parental rights of the mother, [N.M.] and [A.N.W., Sr.],
[A.N.W.,Sr.], to these children be forever terminated, and that the complete custody,
control and full guardianship of [A.Y.M.] and [A.N.W., Jr.], 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.

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 From the Order terminating his parental rights, A.N.W., Sr., appeals, arguing that clear and
convincing evidence does not support the reasonable efforts finding, A.N.W., Sr.’s, failure to
substantially comply with the permanency plan goals, and A.N.W., Sr.’s, abandonment of his
children. In addition, Appellant challenges the best interest finding.

I. Reasonable Efforts and Persistent Conditions

The consideration of Appellant’s first issue occurs against the backdrop of a specific finding
by the trial court that as early as January 2003 that the Department had exercised reasonable efforts
at reuniting the children with their parents. This finding was upon consideration of the
uncontroverted Affidavit of Reasonable Effort submitted by the State. The evidentiary record is
replete with accounts of the deplorable conditions of 55 Upton Heights, A.N.W., Sr.’s, continued
unavailability to meet with Homemaker Services, and the parental grandmother’s inability and
unwillingness to make her home safe for children. A.N.W., Sr., would argue that the paternal
grandmother’s lack of cooperation should not work against him in this reasonable efforts
consideration. To the contrary, the Order of the court, as supported by the proof, more than
adequately complies with the requirements of Tennessee Code Annotated section 37-1-166.

Concerning the stability of the home and the reasonable efforts in that regard, the appellant
argues that the Department failed to conduct home studies at his most recent residence, which he
occupied with the girlfriend, [M.C.]. This argument ignores the fact that throughout the history of
A.N.W., Sr.’s, relationship with the juvenile court and with the Department, he had yet to establish
a residence suitable for inspection. A.N.W., Sr.’s, girlfriend cancelled one prospective home visit
scheduled for October 2002 due to the girlfriend’s child being ill with chickenpox. It bears noting
that A.N.W., Sr., made no effort after this cancellation to reschedule a visit until after April 2003,
some three months after the January 2003 finding that the Department had pursued reasonable efforts
to reunify the children with their parents, a date coinciding roughly with the staffing of the only
permanency plan which A.N.W., Sr., personally attended, the goal of which was to pursue adoption
of the children. At trial, A.N.W., Sr., testified to his lack of a permanent residency suitable for the
children.

A.N.W., Sr., summarizes his criticism of the Department’s efforts by essentially second
guessing those efforts:

The only services offered to [A.N.W., Sr.] addressing his illegal drug use was
information provided to him little over one month prior to the Petition to Terminate
Parental rights being filed. Additionally, as discussed supra, no services were
provided by DCS during an entire four-month period, from approximately April 28,
2002, until August 27, 2002.

To the contrary, the record and transcript reveal that every effort the Department took to
address the conditions which led to removal and persistent conditions which endanger the children,

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was met, at best, with A.N.W., Sr.’s, indifference until the date of the final parenting plan staffing.
A.N.W., Sr.’s, testimony reveals the major reasons for his delay: his addiction to drugs and his
inability to take responsibility for his own actions with regard to making a safe, stable and suitable
home for his children, maintaining steady employment, and addressing the serious psychological
issues raised as a result of his parenting assessment and psychological evaluation.

In his testimony, A.N.W., Sr., recounts that his addiction, and his inability or unwillingness
to recognize the children as his, for the first year they were in State custody, has somehow changed
despite his continued failure as of the time of the hearing to seek treatment for his anti-social
disorder as diagnosed by Dr. Monroe, and his non-participatory attitude with regard to voluntary
drug screens from April 2003 up until the date of the hearing.

A.N.W., Sr., enjoyed the benefit of counsel throughout the proceedings below, and yet failed
to take any affirmative steps other than visiting his children for less than two hours a week. Not only
does the record clearly establish that the Department exercised reasonable efforts, but it equally
conveys A.N.W., Sr.’s, failure to substantially comply with the goals set forth in the Permanency
Plans.
II. Abandonment

As for the claims of abandonment, Tennessee Code Annotated section 36-1-102(1)(A)(i)
defines abandonment as either the willful failure to visit or the willful failure to support “or make
reasonable payments toward the support of the child.” The transcript reveals that from December
2002 to April 2003, despite the existence of a court order requiring $50 per month of support to be
paid for both of these children, and despite A.N.W., Sr.’s, having no living expenses to speak of and
a job with McDonald’s, which left him in excess of $200 at the end of the month, he refused to cause
any of that overage to be paid for the support of his children. Nonetheless, A.N.W., Sr., would argue
that his bringing of gifts at visitation periods would constitute support in excess of that ordered by
the Statute. The trial court was unpersuaded. We are likewise unpersuaded by this argument. This
failure, under the circumstances, satisfies the element of intent required by our case law. See In re
Swanson, 2 S.W.3d 180, 189, n.14 (Tenn. 1999). Although the Department’s documents and
testimony at trial reveal a history, albeit a lackluster one, of support payments, the majority of these
payments occurred as a result of garnishment and occurred outside the relative four-month period
of our consideration, the four consecutive months immediately preceding the filing of the termination
petition. See Tenn.Code Ann. § 36-1-102; See also In re D.L.B., 118 S.W.3d 360, at 366 (Tenn.
2003).

II. Conclusion

A parent’s fundamental right to the care, custody and control of his children is well settled
in our jurisprudence. See Stanley v. Illinois, 405 U.S.645, 651 (1972). That this fundamental right
is not absolute is equally well settled. See Santosky v. Kramer, 455 U.S.745, 768 (1982); In re
Drinnon, 776 S.W.2d 96, 97 (Tenn.Ct.App. 1988). This fundamental right is always balanced
against the cardinal factor in all child custody and termination of parental rights cases, the best

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interest of the child. See e.g., Tennessee Dept. of Human Svcs. v. Riley, 689 S.W.2d 164, 169
(Tenn.Ct.App. 1984). It is this very conflict between the fundamental right of parentage and the best
interests of children which requires the State to prove the statutory grounds for termination of
parental rights by clear and convincing evidence. See In re D.L.B., 118 S.W.3d 360, 367 (Tenn.
2003). This Court has defined the clear and convincing evidence standard as more exacting than the
preponderance of evidence standard, demonstrating the truth of the facts asserted as “highly
probable” rather than “more probable than not”. See, e.g., In re C.W.W., 37 S.W.3d 467, 473-74
(Tenn.Ct.App. 2000), perm app denied (Tenn. Nov. 20, 2000). It is equally well settled that any
inquiry into propriety of termination of parental rights does not stop with the finding of grounds.
The terminating authority must find that termination is in the best interest of the child.

This case is unusual in the fact that A.N.W., Sr., has faithfully attended his limited visitations
and apparently has a genuine interest in his children. It cannot be said that he has abandoned his
children by failing to visit them. The record discloses, however, that this visitation is the only thing
that casts him in a favorable light before the Court. He has abandoned his children by failure to
support them. He has done little to remedy the conditions which led to the removal of his children
in the first place. He has not complied with the requirements of the Permanency Plans. Termination
of his parental rights is clearly in the best interest of the children.

The judgment of the trial court is in all respects affirmed, and the cause is remanded for such
other proceedings as may be necessary.

Costs of appeal are assessed against the appellant.

___________________________________
WILLIAM B.CAIN, JUDGE

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