In Re K.M.K.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
September 30, 2014 Session

IN RE K.M.K. ET AL.

Appeal from the Juvenile Court for Bradley County
No. J-11-120 Daniel R. Swafford, Judge

No. E2014-00471-COA-R3-PT-FILED-FEBRUARY 27, 2015

K.M.K. (Father) appeals the trial court’s judgment terminating his parental rights to his son,
K.M.K., and his daughter, K.M.K. (collectively, the Children). The petitioner, Department
of Children’s Services (DCS), removed the Children from their mother’s home after it found
them living in unsafe and unsanitary conditions. They were placed in foster care and
subsequently adjudicated dependent and neglected. Nine months later, DCS filed a petition
to terminate the parental rights of both parents.1 The trial court terminated Father’s rights
based upon findings of (1) abandonment, (2) substantial noncompliance with a permanency
plan, and (3) persistence of conditions. The trial court also determined that termination is
in the best interest of the Children. Father appeals. We affirm the judgment of the trial court
as modified in this opinion. Those modifications do not affect the trial court’s decision to
terminate Father’s parental rights, which ultimate decision we affirm.

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

C HARLES D. S USANO , J R., C.J., delivered the opinion of the Court, in which T HOMAS R.
F RIERSON, II, and K ENNY W. A RMSTRONG, JJ., joined.

Barrett T. Painter, Cleveland, Tennessee, for the appellant, K.M.K.

Robert E. Cooper, Jr., Attorney General and Reporter, and Ryan L. McGehee, Assistant
Attorney General, Office of the Attorney General, Nashville, Tennessee, for the appellee,
Tennessee Department of Children’s Services.

1
The Children’s mother, A.M.E., has not appealed the trial court’s order terminating her parental
rights.
 OPINION

I.

On February 11, 2011, DCS responded to a referral that alleged Children were living
in unsafe and unsanitary conditions. Agents of DCS visited Mother’s home where the
Children were residing. Apparently, Father was not then living in the home. The parents had
been living separate and apart since the fall of 2010. Their son was then two years and four
months old, and their daughter was one year and three months. DCS discovered that the
Children were living in an extremely dirty environment. There were large piles of clothing
strewn about; several liquor bottles throughout the house, some of which were within reach
of the children; bugs flying around the house; fleas jumping off the carpet; and a dog in the
home. The smell of urine in the bedroom where Mother, her boyfriend, and the Children
slept was “incredibly strong.” There was little food in the house. DCS contacted Father. It
determined that the Children could not be placed with him due to his admitted marijuana use,
his statement that he was currently unable to care for them, and his belief that he had
outstanding criminal warrants in states outside Tennessee. After a temporary, unsuccessful
placement with the Children’s grandparents, they were taken into DCS’s custody on March
1, 2011.

A permanency plan was drafted on March 23, 2011. Father received and signed a
copy of the plan on April 21, 2011. Previously, on April 7, 2011, DCS requested and
obtained a no-contact order prohibiting Father’s contact with the Children pending his
resolution of any outstanding criminal warrants. Father later discovered that he had been
mistaken and that there were no outstanding warrants. After Father provided DCS with
evidence that he had no outstanding warrants, the no-contact order was lifted on May 18,
2011. Father then began supervised visitation with the Children.

Beginning on April 21, 2011, the Children were returned to Mother for a trial home
visit. DCS’s subsequent visits revealed, however, similar environmental neglect resulting
from unsafe and unsanitary conditions in the home. The trial home visit with Mother ended
May 17, 2011, the day before Father’s no-contact order was lifted. DCS provided Father
with a document setting forth and explaining the criteria, including the statutory grounds, and
procedures for termination of parental rights. On April 25, 2011, Father signed the
document, stating that he had “received a copy of Criteria & Procedures for Termination of
Parental Rights and have been given an explanation of its contents.”

After an adjudicatory hearing, the trial court entered an order on October 31, 2011,
adjudicating the Children dependent and neglected. The only findings pertaining to Father
in the order are as follows:

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 The children’s biological father . . . was considered as a
placement option but was deemed inappropriate due to his
admitted drug use.

* * *

Despite the efforts of Case Manager Crook to persuade the
father otherwise, he has adamantly refused to give up marijuana.
The father has informed Case Manager Crook that he could take
one of the children, but not both.

On December 1, 2011, the trial court ordered Father to pay child support of $215 per
month per child. Father made sporadic payments thereafter, but never made a full payment
in any month before the date of the final termination hearing. The Children’s foster care
worker, Blaze Crook, testified that he attended a permanency hearing on April 26, 2012, at
which Father testified. Crook stated that, at that hearing, Father said that the Children were
“better off with the State, where they were,” and that Father “didn’t have any intention[] of
completing” the requirements of the permanency plan. There is no transcript of this hearing
in the record. Father was not questioned about these alleged statements at the termination
hearing.

On July 24, 2012, DCS filed a petition to terminate parental rights. For grounds, DCS
alleged: (1) abandonment by willful failure to visit;2 (2) abandonment by willful failure to
support;3 (3) abandonment by failure to provide a suitable home;4 (4) substantial
noncompliance with the permanency plan;5 and (5) persistence of conditions.6 On April 1,
2013, DCS presented its evidence. On the second day of trial, August 19, 2013, Father
presented his evidence. On October 30, 2013, the trial court entered an order finding that
DCS had established, by clear and convincing evidence, all of the alleged grounds for
termination except abandonment by failure to visit.7 The trial court further found that

2
See Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(i), -102(1)(C), -102(1)(E) (2014).
3
See Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(i), -102(1)(B), -102(1)(D).
4
See Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(ii).
5
See Tenn. Code Ann. §§ 36-1-113(g)(2), 37-2-403(a)(2).
6
See Tenn. Code Ann. §§ 36-1-113(g)(3).
7
DCS has not appealed the trial court’s determination that Father did not abandon the Children by
(continued...)

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termination was in the Children’s best interest, and consequently terminated Father’s parental
rights. Father timely filed a notice of appeal.

II.

Father raises the following issues:

1. Whether the trial court erred in concluding that Father had
abandoned the Children by failing to support them.

2. Whether the trial court erred in finding that Father had
abandoned the Children by failing to provide a suitable home.

3. Whether the trial court erred in finding that Father was in
substantial noncompliance with the permanency plan.

4. Whether the trial court erred in finding that, pertaining to
Father, persistence of conditions existed that in all probability
would cause the Children to be subjected to further abuse or
neglect.

5. Whether the trial court erred in finding that termination of
Father’s parental rights was in the best interest of the Children.

III.

With respect to parental termination cases, this Court has observed:

It is well established that parents have a fundamental right to the
care, custody, and control of their children. While parental
rights are superior to the claims of other persons and the
government, they are not absolute, and they may be terminated
upon appropriate statutory grounds. A parent’s rights may be
terminated only upon “(1) [a] finding by the court by clear and
convincing evidence that the grounds for termination of parental
or guardianship rights have been established; and (2) [t]hat
termination of the parent’s or guardian’s rights is in the best

7
(...continued)
willfully failing to visit.

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 interest[ ] of the child.” Both of these elements must be
established by clear and convincing evidence. Evidence
satisfying the clear and convincing evidence standard establishes
that the truth of the facts asserted is highly probable, and
eliminates any serious or substantial doubt about the correctness
of the conclusions drawn from the evidence.

In re Angelica S., E2011–00517–COA–R3–PT, 2011 WL 4553233 at *11–12 (Tenn. Ct.
App. E.S., filed Oct. 4, 2011) (citations omitted).

On our review, 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 preponderance of the evidence is against those findings. Id.; Tenn. R. App. P.
13(d). Great weight is accorded the trial court’s judgment of witness credibility, which
determinations will not be disturbed absent clear and convincing evidence to the contrary.
See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). Questions of law are reviewed de
novo with no presumption of correctness. Langschmidt v. Langschmidt, 81 S.W.3d 741
(Tenn. 2002). We proceed mindful that only a single statutory ground must be clearly and
convincingly established in order to justify a basis for termination. In re Audrey S., 182
S.W.3d 838, 862 (Tenn. Ct. App. 2005).

IV.

A.

Father argues that the trial court erred in finding that he abandoned the Children by
failing to support them. As pertinent to this statutory ground, the Supreme Court has recently
observed as follows:

Abandonment is one of the grounds for termination of parental
rights. Tenn. Code Ann. § 36–1–113(g)(1). Abandonment is
defined as the willful failure to visit, to support, or to make
reasonable payments toward the support of the child during the
four-month period preceding the filing of the petition to
terminate parental rights. Tenn. Code Ann. § 36–1–102(1)(A)(i)
(2010). To prove the ground of abandonment, a petitioner must
establish by clear and convincing evidence that a parent who
failed to visit or support had the capacity to do so, made no

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 attempt to do so, and had no justifiable excuse for not doing so.
In re Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005).
Whether a parent failed to visit or support a child is a question
of fact. Whether a parent’s failure to visit or support constitutes
willful abandonment, however, is a question of law. In re
Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007). . . .

We begin our analysis with the ground of abandonment based on
willful failure to support. Willful failure to support or to make
reasonable payments toward support means “the willful failure,
for a period of four (4) consecutive months, to provide monetary
support or the willful failure to provide more than token
payments toward the support of the child.” Tenn. Code Ann. §
36–1–102(1)(D). A parent cannot be said to have abandoned a
child when his failure to visit or support is due to circumstances
outside his control. See In re Adoption of A.M.H., 215 S.W.3d
at 810 (holding that the evidence did not support a finding that
the parents “intentionally abandoned” their child). A parent may
not attempt to rectify abandonment by resuming payments of
support subsequent to the filing of “any petition” seeking to
terminate parental rights or seeking to adopt a child. Tenn.
Code Ann. § 36–1–102(1)(F).

In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2012).

In this case, the relevant four-month period is March 24, 2012 to July 23, 2012, this
last day being the day before the petition was filed. As noted, Father was ordered on
December 1, 2011, to pay $215 per month per child. His child support payments were “few
and far between.” DCS provided evidence documenting Father’s payments from December
of 2011 through March of 2013. During the four months preceding the filing of the petition,
he made one payment on April 30, 2012, of $100, which DCS applied $50 for each child.
After making this payment, Father went nine months without paying any child support.

Father argues that his failure to pay child support was not “willful.” Tennessee courts
have repeatedly emphasized the importance of a trial court’s finding that a parent’s conduct
is willful when abandonment is alleged as a ground for termination of parental rights. See,
e.g., In re Alysia S., No. M2013-02596-COA-R3-PT, 2014 WL 7204406 at *21 (Tenn. Ct.
App. M.S., filed Dec. 17, 2014) (“ ‘The requirement that the failure to visit or support be
“willful” is both a statutory and a constitutional requirement.’ . . . Therefore, the element of
willfulness is essential and central to the determination of abandonment”); In re M.L.D., 182

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S.W.3d 890, 896 (Tenn. Ct. App. 2005); In re Audrey S., 182 S.W.3d at 863-64 (The
concept of “willfulness” is at the core of the statutory definition of abandonment. . . .
triers-of-fact must infer intent from the circumstantial evidence, including a person’s actions
or conduct.”) (emphasis added).

In this case, the trial court did not expressly find that Father’s failure to pay was
willful, nor did the court make any findings regarding Father’s income or earning capacity.
The only finding the trial court made in support of its conclusion that DCS had established
abandonment by failure to support by clear and convincing evidence is as follows, quoted in
its entirety:
[Father] has failed to pay child support as ordered by the Court.
[Father] was ordered by this Court on December 1, 2011 to pay
$215 per month per child to the State of Tennessee for child
support. To date, [Father] has failed to make one full monthly
payment on behalf of either child.

This finding is insufficient. The Supreme Court has explicitly held that “the trial court is the
proper court to make a determination of willfulness.” In re D.L.B., 118 S.W.3d 360, 367
(Tenn. 2003) (emphasis added); see also In re Angela T., No. W2011-01588-COA-R3-PT,
2012 WL 586864 at *5 (Tenn. Ct. App. W.S., filed Feb. 23, 2012), rev’d in part on other
grounds; In re Adoption of Angela E., 402 S.W.3d 636 (“Because testimony may be critical
to the determination of whether a parent’s conduct was willful, trial courts are the proper
courts to make a determination of willfulness”). In keeping with this general principle, we
have repeatedly held that,

[c]ourts terminating parental rights are explicitly required to
“enter an order which makes specific findings of fact and
conclusions of law.” Tenn. Code Ann. § 36-1-113(k). These
specific findings of fact and conclusions of law facilitate
appellate review and promote just and speedy resolution of
appeals. When a lower court has failed to comply with Tenn.
Code Ann. § 36-1-113(k), the appellate courts must remand the
case with directions to prepare the required findings of fact and
conclusions of law. In re D.L.B., 118 S.W.3d 360, 367 (Tenn.
2003).

White v. Farley, No. E2005-00396-COA-R3-PT, 2005 WL 2604050 at *5 (Tenn. Ct. App.
E.S., filed Oct. 14, 2005); see also In re Maria B.S., No. E2011-01784-COA-R3-PT, 2012
WL 1431244 at *3 (Tenn. Ct. App. W.S., filed Apr. 25, 2012) (“When a trial court has not
complied with Tenn. Code Ann. § 36-1-113(k), we cannot simply review the record de novo

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and determine for ourselves where the preponderance of the evidence lies as we would in
other civil, non-jury cases”) (internal quotation marks omitted); In re G.N.S., No. W2006-
01437-COA-R3-PT, 2006 WL 3626322 at *5-7 (Tenn. Ct. App. W.S., filed Dec. 13, 2006).

While we would normally remand a case like this with directions to the trial court to
address the issue of “willfulness,” such is not necessary in this case because we have
determined there is another ground for termination that was established by clear and
convincing evidence.

We modify the trial court’s judgment to reverse the trial court’s finding of
abandonment by failure to pay child support.

B.

The trial court terminated Father’s parental rights on the ground of abandonment by
failure to provide a suitable home, as codified at Tenn. Code Ann. § 36-1-102(1)(A)(ii),
which provides as follows in pertinent part:

For purposes of terminating the parental or guardian rights of a
parent . . . of a child to that child in order to make that child
available for adoption, “abandonment” means that:

* * *

(ii) The child has been removed from the home of the . . . parent
or parents or a guardian or guardians as the result of a petition
filed in the juvenile court in which the child was found to be a
dependent and neglected child, as defined in § 37-1-102, and the
child was placed in the custody of the department or a licensed
child-placing agency, that the juvenile court found, or the court
where the termination of parental rights petition is filed finds,
that the department or a licensed child-placing agency made
reasonable efforts to prevent removal of the child or that the
circumstances of the child’s situation prevented reasonable
efforts from being made prior to the child’s removal; and for a
period of four (4) months following the removal, the department
or agency has made reasonable efforts to assist the . . . parent or
parents or a guardian or guardians to establish a suitable home
for the child, but that the . . . parent or parents or a guardian or
guardians have made no reasonable efforts to provide a suitable

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 home and have demonstrated a lack of concern for the child to
such a degree that it appears unlikely that they will be able to
provide a suitable home for the child at an early date.

The statute requires proof that the Children were removed from the home of the parent whose
parental rights are sought to be terminated. In this case, the Children were not removed from
Father’s home. There is no evidence in the record pertaining to Father’s residence during the
four months following either the Children’s first removal from Mother’s home on March 1,
2011, or the second removal after the trial home visit with Mother that ended May 17, 2011.
As discussed further below, the absence of proof regarding Father’s residence is largely due
to (1) Father’s admission at the time of removal that the Children could not suitably be placed
with him; (2) his reaffirmation a year later in court that they “were better off with the State”;
and (3) his failure to notify DCS at any time that he intended to seek custody or that he felt
his home was then suitable for the Children to live with him. Nevertheless, even assuming
arguendo that this statutory ground is applicable under the general facts presented here, we
are of the opinion that the suitability or lack thereof with respect to Father’s residence was
not established by clear and convincing evidence. See In re Maria S., No. E2013-01295-
COA-R3-PT, 2013 WL 1304616 at *10 (Tenn. Ct. App. E.S., filed Apr. 1, 2013) (burden of
proof not met where “the Children were not removed from Father’s home” and the father was
incarcerated during the pertinent time). In fact, there is no real evidence, one way or the
other, as to the condition of Father’s residence. Accordingly, we further modify the trial
court’s judgment by reversing the trial court’s finding of abandonment by failure to provide
a suitable home for the Children.

C.

The trial court found that DCS established, by clear and convincing evidence, Father’s
substantial noncompliance with the statement of responsibilities in his permanency plan.
Consequently, the trial court terminated his rights under Tenn. Code Ann. § 36-1-113(g)(2).
As noted, Father received and signed the permanency plan on April 21, 2011. The trial court
found as follows as pertinent to the ground of substantial noncompliance:

The permanency plan required each of the parents to complete
the following tasks: 1) obtain and maintain stable housing for
six months; 2) maintain the cleanliness of the home; 3) properly
childproof the home; 4) obtain and maintain verifiable income;
5) develop a budget; 6) develop a transportation plan; 7)
complete parenting classes; 8) pay child support as ordered; 9)
ensure that the children are not around anyone under the
influence of drugs or alcohol; and 10) obtain a mental health

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 assessment and follow all recommendations. Additionally,
[Father] was to attend anger management classes and obtain an
alcohol and drug assessment and follow all recommendations.

* * *

[Father] stated in Court on April 26, 2012, that he did not feel he
was an appropriate placement for the children and thought the
children were, “better off where they were.” He indicated that
he did not have any intention o[f] completing his permanency
plan, but wanted to visit with his children. At that time, he had
failed to complete any of the required steps on his permanency
plan.

[Father] did not complete his Alcohol and Drug assessment until
August 19, 2012, after the Petition for Termination had been
filed. He testified that he smoked marijuana at the time the
children came into custody. Despite having completed this
assessment, he testified that he continued to smoke marijuana
through May of 2013. FSW Crook testified [that Father]
admitted he did not wish to stop smoking marijuana. [Father]
did not complete his parenting classes until August 9, 2013,
after the Petition for Termination had been filed.

[Father] admitted that he did not provide the lease for his current
residence to the Department or to the Guardian ad Litem. He
testified that he just began working a new job the week before
the second day of trial. He admitted that prior to that his work
was inconsistent. [Father] testified that he is currently employed
by Concrete Repair Specialist[s] and has previously worked for
Alguire[] Construction and Concrete Works; however, he failed
to provide proper verification of such employment. [Father]
admitted that he currently has no driver’s license but that he
continues to operate a motor vehicle.

(Emphasis added.)

The evidence does not preponderate against these findings. As can be seen from the
above, a year had passed since his receipt of the permanency plan. Despite this time span,
Father had made no progress and testified at an earlier hearing in court that “he had no

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intention” of completing the requirements of the plan. Father eventually did complete an
alcohol and drug assessment and a mental health assessment, but, as the trial court noted,
these efforts did not take place until after the petition to terminate had been filed. Moreover,
Father did not complete his parenting classes until after the termination hearing had
commenced. We have often held under similar circumstances that such belated efforts are
“too little, too late.” See, e.g., In re Alyssa B., No. M2011-02698-COA-R3-PT, 2012 WL
3041190 at *4 (Tenn. Ct. App. M.S., filed July 25, 2012); In re Johnny J.E.M., No. E2011-
02192-COA-R3-PT, 2012 WL 1929802 at *12 (Tenn. Ct. App. E.S., filed May 29, 2012);
In re M.J.M., Jr., No. M2004-02377-COA-R3-PT, 2005 WL 873302 at *10 (Tenn. Ct. App.
M.S., filed Apr. 14, 2005) (“This ‘too little, too late’ concept is often used to describe parents
who, despite having an abundance of time and resources, wait until shortly before their
termination hearing and then hurriedly try to comply with the obligations in their permanency
plans.”). We affirm the trial court’s judgment terminating Father’s parental rights on the
ground of substantial noncompliance.

D.

Father argues that the trial court erred in terminating his parental rights under Tenn.
Code Ann. § 36-1-113(g)(3), the ground often referred to as “persistence of conditions,”
which requires proof of the following:

The child has been removed from the home of the parent or
guardian by order of a court for a period of six (6) months and:

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

(B) There is little likelihood that these conditions will be
remedied at an early date so that the child can be safely returned
to the a parent or parents or a guardian or guardians in the near
future; and

(C) The continuation of the parent or guardian and child
relationship greatly diminishes the child’s chances of early
integration into a safe, stable and permanent home.

(Emphasis added.) As already discussed, the Children were not removed from Father’s

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home. Moreover, foster care worker Crook testified unequivocally at the termination hearing
that the reason for the Children’s removal was the environmental neglect resulting from the
dangerous and unsanitary conditions at Mother’s residence. In the recent case of In re
Maria B.S., 2013 WL 1304616, we were presented with a similar situation where a father’s
parental rights were terminated on a finding of persistence of conditions and the children had
not been removed from his home. We stated as follows:

Father was incarcerated at the time of the Children’s birth. No
one removed the Children from Father – he never had the
Children in the first place. There is case precedent to support
Father’s position that, without removal from that parent’s home,
the ground of persistent conditions is inapplicable. See In re
T.L., No. E2004–02615–COA–R3–PT, 2005 WL 2860202, at
*7 (Tenn. Ct. App. Oct. 31, 2005), Rule 11 appl. perm. appeal
denied Feb. 17, 2006; In re D .L.B ., N o.
W2001–02245–COA–R3–CV, 2002 WL 1838147, at *9 (Tenn.
Ct. App. Aug. 6, 2002), rev’d on other grounds, 118 S.W.3d 360
(Tenn. 2003); In re B.P.C., M2006–02084–COA–R3–PT, 2007
WL 1159199, at *7 (Tenn. Ct. App. April 18, 2007), no appl.
perm. appeal filed.

As in the opinions cited above, we hold that the ground of persistence of conditions is not
applicable to Father under the circumstances presented here. Accordingly, we further modify
the trial court’s judgment so as to reverse persistence of conditions as a basis for terminating
Father’s parental rights.

E.

We now turn to the issue of the best interest of the Children. The applicable statute,
Tenn. Code Ann. § 36-1-113(i), provides the following factors to be considered on this issue:

(i) In determining whether termination of parental or
guardianship rights is in the best interest of the child pursuant to
this part, the court shall consider, but is not limited to, the
following:

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

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 (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,
controlled substances or controlled substance analogues 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.

The trial court made the following findings as pertinent to the “best interest” issue:

[Father] has resided in the same location for a consistent period
of time; however, he has continued to use illegal drugs making

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 his living environment unfit for children. [Father] has not
maintained consistent employment nor has he paid consistent
child support. [Father] has maintained a supervised visitation
schedule with the children; however, the children have not
resided with [Father] since August of 2010.

It would be detrimental to the children to remove them from the
current and only foster home they have resided in for the past
two years. The children have developed a strong bond with the
foster family. To take these children from the stable and loving
environment that is now their home and put them back into
unstable housing with continued environmental concerns would
cause harm to the children and would not promote their
well-being.

The children have remained placed in their current foster
placement . . . since entering custody. [The foster mother] has
indicated to the Department that she wishes to adopt the children
should they become available for adoption.

The children are doing well in their current foster placement and
are very bonded with that family.

FSW Crook testified [the son] was attending Head Start, and
that [the daughter] was healthy and happy in the foster home.
Although they feel otherwise, neither parent has addressed their
issues in a meaningful way, and the children have been in foster
care since March, 2011.

As already stated, at the time of their removal from Mother’s residence, the son was
just over two years old, and the daughter was just over one. Father testified that before the
removal in March 2011, “about every other weekend I had one [child] with me or so.” In
March, Father told DCS that he could take one of the children but not both, and made it clear
that his house was not a suitable placement for them because of, among other things, his drug
use. After Father cleared up the issue of potential outstanding criminal warrants, he began
supervised visits with the children. He testified that “we started [visits] regularly I would say
around April of 2012” and that “[b]efore then it was every so often. It wasn’t regularly.”
Father’s visitation schedule started at a rate of one hour-long visit per month. Around the
beginning of 2013, his visitation increased to one hourly visit per week at a supervised
location outside his residence.

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 The trial court found that DCS made reasonable efforts under the circumstances, and
that Father failed to make lasting adjustments of his lifestyle and living conditions such that
it would be in the Children’s best interest to reside with him. In this regard, Father’s
statements at the time of removal, and at the court hearing a year later, are enormously
significant. Father admitted telling DCS that the Children could not be suitably placed with
him when they were removed. A year later, according to foster care worker Crook’s
testimony,

Q: On that day in April of 2012, you just stated you were
present in court. Did [Father] make any statements to the Court
regarding his thoughts on where the children were better off?

A: Yes.

Q: What did he say?

A: He said they were better off with the State, where they were.

Q: Okay. Did he indicate to you or to the Court what his
intentions were on whether he was going to complete his
permanency plan?

A: He stated to the Court that he wasn’t. As far as the
permanency plan went, he didn’t have any intentions of
completing it.

Father did not dispute this testimony, which the trial court obviously credited. Furthermore,
Father testified as follows regarding the fact that he never contacted DCS to say that he was
interested in getting custody, or more extensive visitation than one hour per week:

A: I do remember in the very, very – I mean, in the very
beginning of our case [Crook] came out for five minutes, and I
believe he’s been to [Mother’s] twenty times.

Q: Okay. And do you remember having a conversation with
him, basically, saying if [Mother] can get her stuff together, I
want her to get the kids?

A: Yes, I do. Because at the time I didn’t think I was suitable to
try to take care of the two kids at one time and try to work.

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 Q: And you wanted [Mother] to try to get them?

A: Yes.

Q: Did you ever go back to Mr. Crook and call and say, hey,
look, I know I told you that I wanted [Mother] to get those kids
back, but this is not working, I want those kids?

A: I have not.

DCS’s efforts regarding Father’s situation were not extensive. Under the circumstances,
there was no reason for them to have been. DCS had no notice that Father was ever
interested in being considered as a placement for the Children, if he had ever had such an
interest. As we have observed, “[r]eunification of a family . . . is a two-way street, and
neither law nor policy requires the Department to accomplish reunification on its own
without the assistance of the parents.” In re Tiffany B., 228 S.W.3d 148, 159 (Tenn. Ct.
App. 2007), overruled in part on other grounds, In re Kaliyah S., No.
E2013–01352–SC–R11–PT, 2015 WL 273659 (Tenn., filed Jan. 22, 2015).

By his own admissions, Father continued to regularly smoke marijuana for the two
years after removal, declined to meet the requirements of his parenting plan, and failed to pay
child support such that he was in arrears over ten thousand dollars.

As the trial court found, the Children are apparently thriving in their foster care home.
The foster family wants to adopt them. At the beginning of the termination hearing, the
Children’s guardian ad litem took the following position:

At this point, I agree with the State, in the fact that it’s been two
years. In my opinion no substantial progress has been made.
It’s only been patchwork progress, and then it goes back.
Making progress and then not having it. Making progress and
then not having it again. To me that is instability as opposed to
stable housing and employment. So I would agree with the State
at this point. It is in the children’s best interest to terminate the
rights of both parents to allow them long term stability and for
them to have someone that will provide for their needs.

The evidence does not preponderate against the trial court’s finding, made by clear and
convincing evidence, that termination of Father’s parental rights is in the best interest of the
Children.

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 V.

The judgment of the trial court is affirmed as modified. We expressly affirm the trial
court’s judgment terminating Father’s parental rights to the Children. Costs on appeal are
assessed to the appellant, Father. 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
by the trial court.

_____________________________________
CHARLES D. SUSANO, JR., CHIEF JUDGE

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