Opinion
No. M2008-00630-COA-R3-PT.
Assigned on Briefs September 4, 2008.
Filed December 16, 2008.
Appeal from the Juvenile Court for Davidson County; No. 2004-002242; Betty Adams Green, Judge.
Judgment of the Juvenile Court Affirmed; Case Remanded.
Dennis L. Nordhoff, Franklin, Tennessee, for the appellant, R.S.C.
Robert E. Cooper, Jr., Attorney General and Reporter, and Preston Shipp, Assistant Attorney General, General Civil Division, Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children's Services.
Charles D. Susano, Jr., J., delivered the opinion of the court, in which Frank G. Clement, Jr., and Andy D. Bennett, JJ., joined.
OPINION
The trial court terminated the parental rights of R.S.C. ("Father") to his daughter, Z.R.S., ("the Child"), who was ten years old at the time of trial. The trial court found, by clear and convincing evidence, that several grounds for terminating Father's parental rights existed and that termination is in the best interest of the Child. Father appeals, challenging the trial court's finding that clear and convincing evidence of grounds to terminate were established. Father also challenges the trial court's finding that the evidence showed, clearly and convincingly, that termination is in the Child's best interest. We affirm.
I.
The petition to terminate Father's parental rights was filed by the Department of Children's Services ("DCS") in April 2007. According to the petition, the Child was found to be dependent and neglected in May 2004, and had been in foster care since then. As to Father, DCS alleged that: (1) pursuant to T.C.A. § 36-1-113(g)(1), Father had abandoned the Child, by willfully failing to visit the Child or had engaged in only token visitation, for a period of four months immediately preceding the filing of the petition; (2) pursuant to T.C.A. § 36-1-113(g)(2), Father had failed to substantially comply with the statement of responsibilities contained in a permanency plan; and (3) pursuant to T.C.A. § 36-1-113(g)(3), the Child had been removed from the home by court order for at least six months, and that the conditions leading to the removal of his daughter or other conditions existed which would subject the Child to further neglect and abuse should the Child be returned to Father's care. Finally, DCS alleged that it was in the Child's best interest that Father's parental rights be terminated.
In addition, the petition sought to terminate the parental rights of the biological fathers of both children. As this litigation progressed, the biological mother voluntarily surrendered her parental rights to both children. The biological father of A.N.S. never appeared at trial or otherwise opposed termination of his parental rights. In this appeal, we are concerned only with the termination of Father's parental rights with respect to Z.R.S.
A trial began in July 2007, with Father being the first witness. Father testified that the Child was legitimated by court order in November 2005. Father acknowledged that the Child had been in foster care since May 2004. Father testified that the last time he actually visited with the Child was in July 2004. Father explained, however, that he attempted to visit the Child after July 2004, but he was not allowed visitation because DCS wanted him to take and pass a drug test prior to visiting. Father claimed he was unable to take a drug test because he was too busy looking for a job. Father acknowledged that he tested positive for cocaine as a result of a drug test in August 2004, and that this was the last drug test he took.
Father admitted that he previously had pleaded guilty to aggravated assault, a class C felony. The assault occurred on February 14, 2005, and Father remained in jail until he pleaded guilty on August 4, 2005. Father was sentenced to five years in prison, but was granted probation of five years as an alternative sentence. Father also pleaded guilty to criminal trespass in 2005. Father's probation was revoked less than two months before the termination of parental rights trial. The original sentence of 5 years at 30% was reinstated, less time served. Father was incarcerated at the time of trial. Father claimed he was in a treatment program when his probation was revoked. Father also admitted that he was charged with criminal child neglect in 2001, and that he pleaded guilty to a Class A misdemeanor in that case.
Although Father was incarcerated at the time of trial, he was transported to the trial.
The petition also sought to terminate the parental rights of the biological mother of Z.R.S., who is the child at issue in this appeal, and A.N.S., Z.R.S.'s half-sister.
Father understood that if he wanted to visit the Child, he needed to call the DCS case manager, Vickie Caldwell, to schedule the visitation. Father stated that he attempted to comply with the requirements of the permanency plan when he entered a drug treatment program at the Restoration Center for Men. Father entered that program on November 7, 2006. The estimated completion date of the program was June 2007, but Father's probation was revoked and he was incarcerated before he could complete the program. Father claimed he attempted to take parenting classes, but he did not have the money for the books so he "wasn't able to do that." However, Father pointed out that he is taking anger management and parenting classes while incarcerated, and he hopes to complete those classes within a couple of months. Father believes that when he completes these classes, he will be able to live drug-free, encounter no more legal trouble, and effectively parent the Child.
The first day of trial was on July 16, 2007. The trial continued on January 9 and 18, 2008. By January 18, Father had completed the parenting and anger management classes. However, Father still was incarcerated and he admitted that during the time frame of May 2004 through January 2008, he had not had a home that was suitable for the Child.
Father remembered being transported to court in May 2005 for a permanency plan hearing before a Juvenile Court Referee. Father was required by the permanency plan to have an examination to determine his current mental health status, but he did not have one. Father never had an alcohol and drug assessment as required by the permanency plan, although he did enter the treatment program as noted earlier. The permanency plan also required Father to comply with all terms of his probation, which he obviously did not do given that his probation was revoked and he was incarcerated.
The next witness was Vickie Caldwell, a DCS case manager. Caldwell had been the Child's case manager since the Child was placed in DCS custody on May 24, 2004. Caldwell testified that she never denied Father the opportunity to visit with the Child. Caldwell stated that Father visited the Child on July 17 and July 29, 2004. Father then requested a visit in August and Caldwell brought the Child for the visit, but Father did not show up for the visitation. Father failed a drug screen in August 2004 and he admitted to using cocaine. Caldwell explained to Father that he would have to pass a drug screen before he could have more visits. Father never had the required drug screen. After Father failed the August 2004 drug screen, Caldwell had no contact with Father for about a year. Then, in October 2005, Father requested visitation with the Child. Caldwell reminded Father he would need to pass a drug screen. Father again did not take a drug screen. Caldwell's next contact with Father was in March 2006, when Father wrote a letter to the Child. A couple of weeks later, Father called Caldwell and told her he was at the Restoration Center for Men in Springfield, Tennessee.
Caldwell testified that for the four month period immediately preceding the filing of the petition, Father had absolutely no visitation or contact with the Child. Prior to that, Father had only visited with the Child on two occasions. Caldwell testified that Father did complete a psychosexual evaluation, but that he did not comply with or finish the various other requirements of the plan. Caldwell stated that she explained to Father all of the requirements of the 2004 permanency plan. Caldwell also explained to Father what would happen if he did not complete the plan's requirements. Caldwell testified as follows:
Q. And did you explain to him what the results would be in not completing the permanency plan? . . .
A. I informed [him] that working towards the goal of getting his child back you have to complete the things that were listed in the perm[anency] plan. And I was going to try to set up everything as much as possible. Also on the same day, he smelled of alcohol when he was having his assessment completed. I also go over the criteria with clients so they would know what it would take to get the person to have the parental rights terminated, but he did not sign the criteria.
Q. And did the Court, then, ratify this permanency plan July 12th, of 2004?
A. Yes.
Caldwell scheduled parenting classes for Father, but he did not attend those classes. Caldwell added that she had arranged for DCS to pay for the parenting classes. Caldwell testified that other permanency plans were developed and ratified by the court. Any requirements in the previous plans that Father had not completed were transferred over to the next plan. However, Father never did fully satisfy the requirements of any of the plans. According to Caldwell, Father did not establish that he could take care of the Child should he regain custody. Caldwell added that Father does not have a suitable home in which to raise the Child.
Caldwell testified that the Child is with a foster family that desires to adopt her. According to Caldwell, the Child is doing very well in the company of her foster family. The Child participates in gymnastics and dance. Her grades are average with a few C's. The Child and her younger half-sister are in the same foster home and the foster parents wish to adopt both children. Caldwell concluded her testimony by stating that it was in the Child's best interest for Father's parental rights to be terminated and for the foster parents to adopt the Child.
The Child's foster mother, S.A.S., also testified at trial. The foster mother testified that she hopes to adopt the Child and her half-sister. The foster mother described the children as very close. According to the foster mother:
We mostly do like church things. They seem to be following me as far as going to church, they seem to enjoy it. We get involved in . . . dance. [The Child] is in the choir and she has a very pretty voice and she loves to sing. She loves it. She sings all the time. I think that's really been a good support for them being, you know, in a family environment like that.
The foster mother further testified that she and the children have a strong bond. The children call her "Mother, Mom, [or] Mama." The foster mother testified that it would have negative effects on the children if they were taken from her care. According to the foster mother, the Child was very excited when she learned that the foster mother wanted to adopt her.
Joel Love also testified. Love is employed by Therapeutic Foster Care. Love has been working with the Child and her half-sister for over three years. Love was not aware of Father visiting with the Child prior to his incarceration, but he did observe several visitations while Father was in jail. Love testified that the bond between Father and the Child was not therapeutic, and the Child did not understand a lot of the conversation because Father tended to discuss his own problems. Love also works with foster parents and knows the Child's foster mother. Love stated that the Child's foster mother has done a "great job" as a foster parent. Love described the bond between the foster mother and the Child as so strong that "you would think that she is the birth mother of the child." When the Child initially went into foster care, she was prone to "outburst behaviors, aggression toward her sister, her peers in class, [and] shutting down." After living with the foster mother for several years, the Child behaves and is now age appropriate. According to Love:
As stated in footnote 3, supra, the first day of trial was July 16, 2007, and the trial continued on January 9 and 18, 2008. According to Love, the few visits between Father and the Child that he observed all took place after the first day of trial.
I think it would be in their best interest for [the foster mother] to adopt the kids because she's been with them so long they've got a strong bond. And to take them out of their home and place them somewhere else would be devastating. . . . Stabilization is everything in a child's life.
Following the trial, the trial court entered a very thorough order terminating Father's parental rights. The order provides, in part, as follows:
The order entered by the trial court also terminated the parental rights of the biological father of the Child's half-sister. We have omitted the portion of the judgment addressing the termination of parental rights with respect to the father of the Child's half-sister.
Upon the evidence presented, arguments of counsel, and the entire record, the Court finds upon clear and convincing evidence that the Petition to Terminate Parental Rights of . . . [Father], as filed herein by the Tennessee Department of Children's Services, is well taken and should be sustained and relief granted thereunder.
The Court finds that the State of Tennessee, Department of Children's Services has made reasonable efforts to assist [Father] in: (1) visiting [the Child]; (2) establishing a suitable home for [the Child]; (3) complying with the requirements in the permanency [plan]; and (4) remedying the conditions that necessitate foster care based upon the following findings of fact.
[The Child] was born to [the biological mother] out of wedlock on March 11, 1997 in Davidson County, Tennessee. . . .
[Father] has entered into a foster care plan with the Department of Children's services as the father of [the Child]. . . .
DNA testing results showed on July 26, 2004, that there was a 99.9% probability that [Father] was the [biological] father of [the Child].
That [the Child was] placed in the custody of the Tennessee Department of Children's Services due to dependency and neglect on May 24, 2004, by order of the Juvenile Court of Davidson County, Tennessee. [The Child had] been in foster care continuously since that date.
On April 27, 2007, [the biological mother] surrendered all her parental rights to [the Child] before the . . . Juvenile Court of Davidson County, Tennessee. The statutory period for revocation has expired, no revocation has been filed, and the surrender is final.
The Department of Children's Services [was] legal custodian of [the Child] at the time these proceedings [were] commenced.
* * *
[Father] has not visited [the Child] . . . for four (4) consecutive months previous to the filing of this petition. The last visit that [Father] had with the child was on July 28, 2004. A visitation appointment was set up for [Father] and he failed to show for that visit on August 17, 2004.
[Father] was aware of his duty to visit the child. . . . [Father] knew the child was in foster care and knew how to schedule visits. [Father] made no attempt to visit the child since August of 2004 and has provided no justifiable excuse for failing to visit the child.
The Department made reasonable efforts to assist the parent in visiting the child by contacting him, advising him that the child was in foster care, and encouraging him to visit the child and by setting up visitation for [Father].
[Father] was not incarcerated for the four (4) months preceding the filing of this petition for termination of parental rights.
The Department case manager, Vickie Caldwell, explained the criteria for termination of parental rights to [Father].
[Father] has abandoned the child . . . pursuant to T.C.A. 36-1-113(g)(1) and T.C.A. 36-1-102(1)(A)(i) in that he has willfully failed [to] visit the child for more than four (4) consecutive months prior to the filing of this Petition, which was filed on March 30, 2007.
The child . . . has been removed pursuant to a dependency neglect proceeding and placed in the custody of the Department of Children's Services. The child was placed into custody based upon the child's mother continuing to expose the child to a risk of harm by leaving the child unattended with [Father]. [Father] has had a history of cocaine abuse, he tested positive for cocaine continuing until August of 2004, and after this time, he failed to submit to drug screens. [Father] had a child neglect conviction due to his previously neglecting [the child] named herein. When [the Child was] placed into custody, there was little food in the house, the house was dirty and unfit for habitation by [the Child], and [the Child was] unkempt and unclean.
The Department of Children's Services made reasonable efforts to prevent removal of [the Child], or the circumstances of the child's situation prevented reasonable efforts from being made prior to the child's removal.
For a period of four (4) months following the removal, from May 24, 2004 until September 24, 2004, the Department of Children's Services made reasonable efforts to assist [Father] to provide a suitable home for the child . . ., but [Father] has made no reasonable efforts to provide a suitable home and has demonstrated a lack of concern to such a degree that it appears unlikely that [Father] will be able to provide a suitable home for the child at an early date.
The reasonable efforts made in the first four (4) months include searching for [Father] and when he was located, the Department case manager encouraged him to visit with the child and complete his permanency plan requirements. When [Father] was located, the Department case manager reviewed the terms of the child's permanency plan with [Father] and set up an A D Assessment at Life Care, and a V Axis diagnosis and a psychosexual assessment.
Father's lack of reasonable efforts to provide a suitable home includes his failure to visit the child . . . and his failure to take any steps to provide a suitable home for the child. [Father] failed to complete an A D Assessment, he tested positive for cocaine throughout the time that the child was in custody and he had a positive screen in August of 2004. [Father] was found guilty of criminal trespass . . . on September 15, 2004. [Father] testified at trial that throughout the time that [the Child] has been in custody, including the first four (4) months of custody, that he has not had stable income to support the child, nor did he have housing for himself or his child.
Therefore [Father] has abandoned the child . . . pursuant to T.C.A. 36-1-113(g)(1) and T.C.A. 36-1-102(1)(A)(ii).
Grounds exist for termination of the parental rights of [Father] to the child . . . pursuant to T.C.A. 36-1-113(g)(2) in that [Father] has failed to follow the permanency plan statement of responsibilities which are reasonable and directly related to remedying the conditions which necessitate foster care placement.
(Paragraph numbering in original omitted.)
The trial court then addressed several of the permanency plan requirements that Father was required to satisfy, including: (1) obtaining an A D Assessment, a V Axis diagnosis, and a psychosexual assessment; (2) following through with any recommendations made after undergoing the various assessments; (3) having a stable lifestyle; (4) attending parenting classes and counseling; (5) undergoing random drug screens and passing those screens; (6) abiding by the terms of his probation; and (7) not having any contact with the child's biological mother because she had an order of protection prohibiting any such contact. After detailing what was required of Father to complete the permanency plan, the trial court found that Father had not completed the A D assessment, had not submitted to drug screens, had not completed counseling or parenting classes, violated his probation, and continued to violate the order of protection by having contact with the child's biological mother. Accordingly, the trial court also found that grounds existed to terminate Father's parental rights pursuant to T.C.A. § 36-1-113(g)(2) (2005), i.e., failure to substantially comply with the statement of responsibilities of a permanency plan.
T.C.A. § 36-1-113(g) has been amended effective January 1, 2009. Even though the amendment has no impact on the present case, we will, nevertheless, cite to the version of the statute in effect at the time of trial throughout this opinion.
Next, the trial court found that grounds existed to terminate Father's parental rights pursuant to T.C.A. § 36-1-113(g)(3) (2005) because:
[The Child] has been removed from the home by order of this Court for a period of at least six (6) months, and the conditions which led to the child's removal or other conditions which in all probability would cause the child to be subjected to further abuse or neglect and which, therefore, prevent the child's safe return to the care of [Father] still persist; there is little likelihood that these conditions will be remedied at an early date so that the child can be safely returned to [Father] in the near future; and the continuation of the parent/child relationship greatly diminishes the child's chances of early integration into a safe, stable and permanent home.
* * *
[Father] has not completed any portions of the permanency plan and he has not demonstrated an ability to properly parent his child. . . . Since the child was placed into custody, he was found guilty of aggravated assault, which offense occurred on February 14, 2005. He received a five (5) year sentence for the charge and was placed on probation. On May 25, 2007, he violated his probation and was subsequently incarcerated. During the time that the child has been in custody [Father] has been subject to an order of protection ordering him to not have any contact with the child's mother. . . . He is currently incarcerated and admitted under oath that he would need several months to be in a position to provide a home for his child after his release from incarceration.
(Paragraph numbering in original omitted.)
After determining that the above grounds for termination of Father's parental rights had been proven clearly and convincingly, the trial court undertook a best interest analysis. After reviewing the pertinent statutory factors set forth in T.C.A. § 36-1-113(i) (2005), the trial court determined that it had been proven, clearly and convincingly, that it was in the Child's best interest for Father's parental rights to be terminated.
II.
Father appeals claiming that he was not advised of the criteria for abandonment and procedures for termination of parental rights and that this failure is in violation of T.C.A. § 37-2-403 (2005). Father also challenges the sufficiency of the evidence with respect to each of the various grounds upon which the trial court terminated his parental rights. Finally, Father claims that there was insufficient proof offered at trial that termination of his parental rights is in the Child's best interest.
III.
In cases involving the termination of parental rights, our duty on factual matters is 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 otherwise. Id. ; Tenn. R. App. P. 13(d). Questions of law are reviewed de novo with no presumption of correctness. Langschmidt v. Langschmidt , 81 S.W.3d 741, 744-45 (Tenn. 2002).
Trial courts, unlike appellate courts, are able to observe witnesses as they testify and to assess their demeanor. Thus, trial courts are in a unique position to evaluate witness credibility. See State v. Pruett , 788 S.W.2d 559, 561 (Tenn. 1990). Accordingly, appellate courts will not re-evaluate a trial court's assessment of witness credibility absent clear and convincing evidence to the contrary. See Wells v. Tennessee Bd. of Regents , 9 S.W.3d 779, 783 (Tenn. 1999), Humphrey v. David Witherspoon, Inc. , 734 S.W.2d 315, 315-16 (Tenn. 1987).
Parents have a fundamental right to the care, custody, and control of their children. Stanley v. Illinois , 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); O'Daniel v. Messier , 905 S.W.2d 182, 186 (Tenn.Ct.App. 1995) rev'd on other grounds, In re Swanson , 2 S.W.3d 180 (Tenn. 1999); In re Drinnon , 776 S.W.2d 96, 97 (Tenn.Ct.App. 1988). This right "is among the oldest of the judicially recognized liberty interests protected by the Due Process Clauses of the federal and state constitutions." In re M.J.B. , 140 S.W.3d 643, 652-53 (Tenn.Ct.App. 2004). "Termination of a person's rights as a parent is a grave and final decision, irrevocably altering the lives of the parent and child involved and `severing forever all legal rights and obligations' of the parent." Means v. Ashby , 130 S.W.3d 48, 54 (Tenn.Ct.App. 2003) (quoting T.C.A. § 36-1-113(l)(l)). "Few consequences of judicial action are so grave as the severance of natural family ties." M.L.B. v. S.L.J. , 519 U.S. 102, 119, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (quoting Santosky v. Kramer , 455 U.S. 745, 787, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)).
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. See Blair v. Badenhope , 77 S.W.3d 137, 141 (Tenn. 2002). Due process requires clear and convincing evidence of the existence of the grounds for termination of the parent-child relationship. In re Drinnon , 776 S.W.2d at 97. T.C.A. § 36-1-113 governs termination of parental rights in this state. 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 interests of the child." T.C.A. § 36-1-113(c) (Supp. 2008); In re F.R.R., III , 193 S.W.3d at 530. Both of these elements must be established by clear and convincing evidence. See T.C.A. § 36-1-113(c)(1); In re Valentine , 79 S.W.3d 539, 546 (Tenn. 2002). The existence of at least one statutory basis for termination of parental rights will support the trial court's decision to terminate those rights. In re C.W.W. , 37 S.W.3d 467, 473 (Tenn.Ct.App. 2000), abrogated on other grounds, In re Audrey S. , 182 S.W.3d 838 (Tenn.Ct.App. 2005).
The heightened burden of proof in parental termination cases minimizes the risk of erroneous decisions. In re C.W.W. , 37 S.W.3d at 474; In re M.W.A., Jr. , 980 S.W.2d 620, 622 (Tenn.Ct.App. 1998). Evidence satisfying the clear and convincing evidence standard establishes that the truth of the facts asserted is highly probable, State v. Demarr , No. M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn.Ct.App. M.S., filed August 13, 2003), and eliminates any serious or substantial doubt about the correctness of the conclusions drawn from the evidence. In re Valentine , 79 S.W.3d at 546; In re S.M. , 149 S.W.3d 632, 639 (Tenn.Ct.App. 2004); In re J.J.C. , 148 S.W.3d 919, 925 (Tenn.Ct.App. 2004). It produces in a fact-finder's mind a firm belief or conviction regarding the truth of the facts sought to be established. In re A.D.A. , 84 S.W.3d 592, 596 (Tenn.Ct.App. 2002); Ray v. Ray , 83 S.W.3d 726, 733 (Tenn.Ct.App. 2001); In re C.W.W. , 37 S.W.3d at 474.
IV.
In the present case, Father's parental rights were terminated pursuant to T.C.A. § 36-1-113(g)(1) — (3) (2005). These statutory provisions provide as follows:
(g) Initiation of termination of parental or guardianship rights may be based upon any of the following grounds:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has occurred;
(2) There has been substantial noncompliance by the parent or guardian with the statement of responsibilities in a permanency plan or a plan of care pursuant to the provisions of title 37, chapter 2, part 4; [and]
(3) The child has been removed from the home of the parent or guardian by order of a court for a period of six (6) months and:
(A) The conditions that led to the child's removal or other conditions that in all reasonable probability would cause the child to be subjected to further abuse or neglect and that, therefore, prevent the child's safe return to the care of the parent(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions will be remedied at an early date so that the child can be safely returned to the parent(s) or guardian(s) in the near future; and
(C) The continuation of the parent or guardian and child relationship greatly diminishes the child's chances of early integration into a safe, stable and permanent home;
The statutory provision — T.C.A. § 36-1-102 (2005) — referenced in the preceding provides, in relevant part, as follows:
(1)(A) For purposes of terminating the parental or guardian rights of parent(s) or guardian(s) of a child to that child in order to make that child available for adoption, "abandonment" means that:
(i) For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent(s) or guardian(s) of the child who is the subject of the petition for termination of parental rights or adoption, that the parent(s) or guardian(s) either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child;
(ii) The child has been removed from the home of the parent(s) or guardian(s) as the result of a petition filed in the juvenile court in which the child was found to be a dependent and neglected child, as defined in § 37-1-102, and the child was placed in the custody of the department or a licensed child-placing agency, that the juvenile court found, or the court where the termination of parental rights petition is filed finds, that the department or a licensed child-placing agency made reasonable efforts to prevent removal of the child or that the circumstances of the child's situation prevented reasonable efforts from being made prior to the child's removal; and for a period of four (4) months following the removal, the department or agency has made reasonable efforts to assist the parent(s) or guardian(s) to establish a suitable home for the child, but that the parent(s) or guardian(s) have made no reasonable efforts to provide a suitable home and have demonstrated a lack of concern for the child to such a degree that it appears unlikely that they will be able to provide a suitable home for the child at an early date. . . .
For purposes of subdivision (1) of T.C.A. § 36-1-102, "`willfully failed to visit' means the willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation"; and "`token visitation' means that the visitation, under the circumstances of the individual case, constitutes nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child[.]" T.C.A. § 36-1-102(C) (E) (2005).
Before we address whether the trial court properly found that various grounds existed to terminate Father's parental rights, we will first address Father's claim that he was not advised of the criteria for abandonment and procedures for terminating parental rights, as required by T.C.A. § 37-2-403. Contrary to Father's allegation, Caldwell testified that she explained the necessary criteria and procedures to Father. In addition, we note the following statement written by the Juvenile Court Referee during one of the status conferences:
Father refused to sign notice of rights and criteria for termination. He signed the plan so indicating his refusal. Said rights were explained to him.
This notation, coupled with the testimony of Caldwell, all of which the trial court obviously believed, establishes that the evidence does not preponderate against the trial court's determination that there was no violation of T.C.A. § 37-2-403.
The next issue is whether the trial court erred when it found that Father had abandoned the Child pursuant to T.C.A. § 36-1-113(g)(1). The testimony at trial was that Father visited the Child approximately two times between the time the Child went into foster care up until the first day of trial in July 2007. A third visitation was scheduled for Father but he failed to show up. Father admitted that he rarely visited the Child. Caldwell testified that during the four month period immediately preceding the filing of the petition, Father never visited the Child. Father was not incarcerated during this four-month period. The only thing keeping Father from visiting the Child was his refusal to take a drug screen which was required because he previously had tested positive for cocaine. We think Father's behavior properly was characterized as "willful" by the trial court. This is even more apparent when considering Caldwell's testimony that all Father had to do to arrange visitation was pass a drug test and call her to schedule visitation. Father admitted he knew that this was all that he had to do in order to visit the Child. Therefore, we affirm the trial court's finding that Father "abandoned" the Child pursuant to T.C.A. § 36-1-113(g)(1), as that term is defined in T.C.A. § 36-1-102 (1)(A)(i).
The next issue is whether the evidence supports the trial court's conclusion that Father abandoned the child as that term is defined in T.C.A. § 36-1-102 (1)(A)(ii). The facts are undisputed that the Child was removed from the home after being found dependent and neglected and the Child was placed in the temporary custody of DCS. The facts also show that the circumstances surrounding the Child's removal were such that reasonable efforts could not have been made to prevent her immediate removal. DCS thereafter made reasonable attempts to assist Father in establishing a suitable home, but Father's efforts to do so were minimal at best. Father admitted that from May 2004 through January 2008, he had never had a home suitable for raising the Child. We further note that in January 2008, Father still was incarcerated. Father demonstrated a lack of concern to such a degree that it is unlikely that he would be able to provide a suitable home for the Child in the near future, if ever. We affirm the trial court's finding that Father "abandoned" the Child pursuant to T.C.A. § 36-1-113(g)(1), as that term is defined in T.C.A. § 36-1-102 (1)(A)(ii).
Next we must determine whether the trial court correctly found that DCS had proven, by clear and convincing evidence, that Father has failed to substantially comply with the statement of responsibilities contained in his permanency plan. Father complied with very few of the requirements of the plan. Caldwell testified to the various requirements that Father filed to comply with, the most notable one being the requirement that he comply with the terms of his probation so he would stay out of prison. In addition, Father did not complete anger management or parenting classes until after the first day of trial, even though he had several years to complete those classes. Father failed to stay drug-free and, after failing a drug test, refused any further drug tests. Father's life could be described as anything but stable enough to care for the Child. We, therefore, affirm the trial court's finding, made clearly and convincingly, that Father's parental rights should be terminated pursuant to T.C.A. § 36-1-113(g)(2).
The final ground upon which the trial court terminated Father's parental rights was T.C.A. § 36-1-113(g)(3). With respect to this ground, we again note that there is no doubt the Child had been removed from the home by order of a court for at least six months. The conditions preventing the Child's safe return continue to exist and include Father's incarceration and continued inability to care for the Child. Father never has been able to care for the Child since the Child has been in foster care, even when he was not in prison. Father has no suitable housing for the Child and no financial means to take care of the Child. There is no real likelihood that Father will remedy these conditions at an early date so that the Child can safely be returned to his care. Continuation of the parent-child relationship would greatly diminish the Child's chances of early integration into a safe and stable permanent home given that the foster mother is desirous of adopting both the Child and her half-sister. Accordingly, we affirm the judgment of the trial court that there is clear and convincing evidence that Father's parental rights should be terminated pursuant to T.C.A. § 36-1-113(g)(3).
The final issue is whether the trial court erred when it concluded that DCS had proven, clearly and convincingly, that it was in the Child's best interest for Father's parental rights to be terminated. The relevant statutory provision is T.C.A. § 36-1-113(i), which provides as follows:
(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;
(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.
T.C.A. § 36-1-113(i). When considering the child's best interest, the court must take the child's, rather than the parent's, perspective. White v. Moody , 171 S.W.3d 187, 194 (Tenn.Ct.App. 2004).
The facts establish that Father has not made an adjustment of circumstance such that it would be safe for the Child to return to his care. At the time of trial, Father remained incarcerated and he admitted that he had never been able to provide a suitable home for the Child during the period of time the Child has been in DCS custody. Although he claimed that he needed more time once he was released from prison, the Child had been in foster care for over 3 ½ years by the time the trial concluded. This was more than sufficient time for Father to make the necessary adjustment of circumstance to show that he could care for the Child. We hasten to add that Father's visitation with the Child was practically nonexistent, and that the Child has adjusted quite well to living with her foster mother, who desires to adopt her. Father did not stay drug-free; in fact he tested positive for cocaine. Thereafter, he refused to take drug screens. After reviewing the applicable factors in light of the facts discussed at length in this opinion, we readily conclude that the evidence does not preponderate against the trial court's conclusion, made by clear and convincing evidence, that termination of Father's parental rights is in the Child's best interest.
V.
The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant, R.S.C., and his surety, if any, for which execution may issue. This case is remanded to the trial court for enforcement of the court's judgment and for the collection of costs assessed below, all pursuant to applicable law.