ANDY D. BENNETT, Judge.
A juvenile court terminated a father's parental rights on the grounds of abandonment by willful failure to support, substantial noncompliance with permanency plans, and persistence of conditions. The father appeals the termination of his rights. We conclude that the evidence clearly and convincingly supports the trial court's termination on these grounds and affirm the judgment.
Jessica M.S. ("Mother") and Brock R.B. ("Father") are the parents of Gabriel B., born in November 2014. On December 1, 2015, Mother, Father, and Gabriel were at a Walmart in Jackson when Mother and Father were arrested and charged with shoplifting. Mother and Father were incarcerated at a local jail, and the Tennessee Department of Children's Services ("DCS" or "the Department") received a report stating that Gabriel was without supervision. The Department took custody of Gabriel and filed a petition to adjudicate him dependent and neglected on December 4, 2015. The Department asserted in its petition that a child and family team meeting was conducted on December 4 and that Mother reported during this meeting that Father had broken her arm not long before. According to DCS's petition, Mother stated that she did not want Gabriel to be placed with Father because of Father's drug use, which included crack cocaine.
The trial court issued a protective custody order on December 4, 2015, finding Gabriel dependent and neglected and notifying the parents of their obligation to provide child support for Gabriel in accordance with Tenn. Code Ann. § 37-1-151. On December 28, 2015, a DCS family service worker met with Father, Father's attorney, a guardian ad litem, and the foster parents to discuss a family permanency plan.
A second family permanency plan was created on September 1, 2016. The permanency goals of this plan included "exit custody with relative" and "adoption." The Department indicated that Father's lack of progress justified the change in goals and stated that Gabriel was not ready to leave state custody because Father was still using drugs, he was missing visitation sessions with Gabriel, and he lacked stability. Father's visitation with Gabriel was continued under this plan, and his responsibilities included completing alcohol and drug treatment; providing the name of his probation officer to the DCS case manager; submitting to random urine, saliva, hair and/or nail drug screens; completing a program for driving under the influence ("DUI"); completing counseling to address anger management and domestic abuse; providing DCS with check stubs to verify his employment; and providing DCS with a copy of his lease agreement to verify housing. Father signed the permanency plan on December 15, 2016. A copy of the Criteria and Procedures for TPR was attached to this permanency plan, and Father signed a statement acknowledging his receipt of a copy and explanation of its contents on the same day, December 15, 2016. The trial court ratified this second permanency plan on March 16, 2017.
The Department developed a third permanency plan on March 30, 2017. This plan listed the first permanency goal as "adoption" and the second goal as "exit custody with kin."
The Department filed a petition seeking to terminate Mother's and Father's parental rights to Gabriel on May 31, 2017.
Following the presentation of evidence, the parties asked the trial court to hold the record open for a few more days to give them an opportunity to supplement the record with additional documents. The court agreed and held the record open until Friday, October 6, 2017. The court entered an order on November 28, 2017, terminating Father's parental rights to Gabriel. It found that the Department proved the following grounds for termination by clear and convincing evidence: abandonment by failure to support; abandonment by failure to provide a suitable home; substantial noncompliance with the permanency plans; and persistence of conditions.
The Tennessee Supreme Court has described the appellate review of parental termination cases as follows:
In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (citations omitted); see also In re Gabriella D., 531 S.W.3d 662, 680 (Tenn. 2017).
The termination of a parent's rights is one of the most serious decisions courts make. As the United States Supreme Court has said, "[f]ew consequences of judicial action are so grave as the severance of natural family ties." Santosky v. Kramer, 455 U.S. 745, 787 (1982). "Terminating parental rights has the legal effect of reducing the parent to the role of a complete stranger," In re W.B., IV, No. M2004-00999-COA-R3-PT, 2005 WL 1021618, at *6 (Tenn. Ct. App. Apr. 29, 2005), and of "severing forever all legal rights and obligations of the parent or guardian," Tenn. Code Ann. § 36-1-113(l)(1).
A parent has a fundamental right, based in both the federal and state constitutions, to the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996) (citing Nale v. Robertson, 871 S.W.2d 674, 678 (Tenn. 1994)); In re Adoption of Female Child, 896 S.W.2d 546, 547-48 (Tenn. 1995) (citing Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993)). This right "is among the oldest of the judicially recognized fundamental liberty interests protected by the Due Process Clauses of the federal and state constitutions." In re Carrington H., 483 S.W.3d at 521 (citing U.S. CONST. amend. XIV, § 1; TENN. CONST. art. 1, § 8). While this right is fundamental, it is not absolute. Id. at 522. The State may interfere with parental rights only in certain circumstances. Id.; In re Angela E., 303 S.W.3d at 250. Our legislature has listed the grounds upon which termination proceedings may be brought. See Tenn. Code Ann. § 36-1-113(g). Termination proceedings are statutory, In re Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004), and a parent's rights may be terminated only where a statutory basis exists, Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A. Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).
To terminate parental rights, a court must determine by clear and convincing evidence the existence of at least one of the statutory grounds for termination and that termination is in the child's best interest. Tenn. Code Ann. § 36-1-113(c); In re Kaliyah S., 455 S.W.3d 533, 552 (Tenn. 2015); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). "`Clear and convincing evidence enables the fact-finder to form a firm belief or conviction regarding the truth of the facts, and eliminates any serious or substantial doubt about the correctness of these factual findings.'" In re Carrington H., 483 S.W.3d at 522 (quoting In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted)). "Evidence satisfying the clear and convincing evidence standard establishes that the truth of the facts asserted is highly probable." In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005). As a reviewing court, we "must `distinguish between the specific facts found by the trial court and the combined weight of those facts.'" In re Keri C., 384 S.W.3d 731, 744 (Tenn. Ct. App. 2010) (quoting In re Tiffany B., 228 S.W.3d 148, 156 (Tenn. Ct. App. 2007)). Then, we must determine "whether the combined weight of the facts . . . clearly and convincingly establishes all of the elements required to terminate" Father's parental rights. Id. (citing In re Tiffany B., 228 S.W.3d at 156, and In re S.M., 149 S.W.3d 632, 640 (Tenn. Ct. App. 2004)). "When a trial court has seen and heard witnesses, considerable deference must be accorded to the trial court's findings as to witnesses' credibility." Id. (citing Seals v. England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999)).
Once a ground for termination is established by clear and convincing evidence, the trial court or the reviewing court conducts a best interests analysis. In re Angela E., 303 S.W.3d at 251 (citing In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005); White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App. 2004)). "The best interests analysis is separate from and subsequent to the determination that there is clear and convincing evidence of grounds for termination." Id. at 254. The existence of a ground for termination "does not inexorably lead to the conclusion that termination of a parent's rights is in the best interest of the child." In re C.B.W., No. M2005-01817-COA-R3-PT, 2006 WL 1749534, at *6 (Tenn. Ct. App. June 26, 2006).
Father challenges only one ground for termination — that he had not substantially complied with the permanency plans. However, our Supreme Court requires that we "review the trial court's findings as to each ground for termination and as to whether termination is in the child's best interests, regardless of whether the parent challenges these findings on appeal." In re Carrington H., 483 S.W.3d at 525-26. Thus, in addition to the issues Father raises on appeal, we will address each ground for termination that the trial court found the Department established by clear and convincing evidence as required by In re Carrington H.
One of the grounds the legislature has determined constitutes a basis for terminating an individual's parental rights is "abandonment," as that term is defined in Tenn. Code Ann. § 36-1-102. Tenn. Code Ann. § 36-1-113(g)(1). Section 36-1-102(1)(A)(i) defines abandonment, in part, as a parent's willful failure to support or make reasonable payments towards the support of a child for a period of four consecutive months immediately preceding the filing of a termination petition.
"Willful conduct consists of acts or failures to act that are intentional or voluntary rather than accidental or inadvertent." In re Audrey S., 182 S.W.3d at 863. A parent's failure to support is "willful" if he or she "`is aware of his or her duty to support, has the capacity to provide the support, makes no attempt to provide support, and has no justifiable excuse for not providing the support.'" Dep't of Children's Servs. v. Culbertson, 152 S.W.3d 513, 524 (Tenn. Ct. App. 2004) (quoting In re Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003 WL 22794524, at *5 (Tenn. Ct. App. Nov. 25, 2003)). If a parent's failure to support is out of his or her control, that parent's failure will not be deemed "willful." In re Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013). Whether a parent has failed to support a child is a question of fact, but whether a parent's failure to support a child was willful is a question of law. Id.; see also In re Alysia S., 460 S.W.3d 536, 566 (Tenn. Ct. App. 2014).
Father admits that he did not provide any monetary support for Gabriel during the relevant four-month period. Father testified on this issue as follows:
The Department introduced records from the Carl Perkins Center that described Father's visits with Gabriel. These records show that Father brought Gabriel gifts on three different occasions during the relevant four-month period.
The Department counters Father's testimony that he was not aware that he was required to pay support for Gabriel by pointing to the trial court's order dated December 4, 2015. In that order, the trial court notified Mother and Father of "their liability for child support pursuant to T.C.A. § 37-1-151 . . . from the effective date of the court's order placing the child in state custody." We also note that Father was provided with the Criteria and Procedures for TPR on at least two different occasions, and this form states in bold letters that his parental rights can be terminated for "[w]illfully failing to pay child support regularly for four consecutive months, or failure to pay more than a small amount of support, if it is established that [he has] the ability to pay for support." Father signed a statement on December 15, 2016, and another statement on June 15, 2017, indicating that he received a copy of the Criteria and Procedures for TPR and was provided an explanation of its contents.
In response to questions about his income, Father testified that he had four businesses and that his annual income was three to six million dollars. Father explained that this money was in a trust agreement and that he received monthly distributions:
Father was asked how long he had been receiving this amount of money, and he responded that he had been receiving that money for a year, which period includes the four-month period at issue. He explained that three of the businesses were his wife's, but they had been transferred to him, and the other business was his. The Department asked Father what his expenses were, and Father responded:
In its order terminating Father's parental rights, the trial court found that Father provided only "token support" to his child during the relevant period and that the Department proved the ground of abandonment by willful failure to support by clear and convincing evidence:
The trial court also addressed Father's credibility, stating:
As the party filing the termination petition, DCS carried the burden of proving by clear and convincing evidence that Father abandoned his child by willfully failing to support or to make reasonable payments toward his support during the relevant four-month period. In re Bernard T., 319 S.W.3d at 596; see Tenn. Code Ann. § 36-1-102(1)(A)(i). The Department was required to prove that Father "had the capacity to pay support but made no attempt to do so and did not possess a justifiable excuse." In re Adoption of Angela E., 402 S.W.3d at 641.
Courts consider a parent's income as well as the resources available for the payment of debts in determining whether the parent's support or payments towards the support of a child are merely token payments. Id. (citing In re Z.J.S., No. M2002-02235-COA-R3-JV, 2003 WL 21266854, at *11 n.24 (Tenn. Ct. App. June 3, 2003)). "A parent's financial support of his or her child will not be deemed to be `token' unless it is `insignificant' in light of the parent's `means.'" In re Z.J.S., 2003 WL 21266854, at *11 (quoting Tenn. Code Ann. § 36-1-102(1)(B)). The Department did not introduce into evidence bank statements or other documentation reflecting Father's assets or income, but Father testified that he earned $16,000 a month in interest income and that he was able to meet his expenses and live comfortably. Father's testimony that he was not aware of his obligation to pay support for Gabriel does not excuse his failure to pay. The legislature presumes a parent who is at least eighteen years old is aware of his or her legal obligation to support his or her child, even if there is no court order requiring the parent do so. Tenn. Code Ann. § 36-1-102(1)(H); In re Braxton M., 531 S.W.3d 708, 724 (Tenn. Ct. App. 2017); David A. v. Wand T., No. M2013-01327-COA-R3-PT, 2014 WL 644721, at *8 (Tenn. Ct. App. Feb. 18, 2014). Moreover, the trial court's order dated December 4, 2015, unequivocally directed Father to pay child support. In light of Father's testimony regarding his income and his acknowledgement that he paid nothing towards the support of Gabriel during the relevant period, we agree with the trial court's conclusion that the few gifts he provided during his visits constituted merely token support. See In re Braxton M., 531 S.W.3d at 721, 725 (affirming trial court's ruling that father's gifts to child during four-month period constituted no more than token support); In re Keri C., 384 S.W.3d at 737-39, 746-47 (affirming trial court's determination that mother willfully failed to support child despite her provision of gifts to child during relevant four-month period).
Our review of the record leads us to conclude that the evidence clearly and convincingly showed that Father had the ability to support or make reasonable payments towards the support of Gabriel and had no justifiable excuse for failing to do so. Accordingly, we affirm the trial court's judgment that Father's parental rights should be terminated based on his willful failure to support Gabriel during the relevant four-month period.
A parent's rights can be terminated if he or she is substantially noncompliant with the statement of responsibilities in a permanency plan that complies with the requirements of title 37, chapter 2, part 4. Tenn. Code Ann. § 36-1-113(g)(2). Tennessee Code Annotated section 37-2-403(a)(2) requires that the permanency plan for each child in foster care include a statement of responsibilities between the parent(s), the agency, and the caseworker of the agency; the statements identify each party's responsibilities in specific terms; and the statements be reasonably related to remedying the conditions that necessitated foster care placement. This ground for termination does not require DCS to use reasonable efforts to assist a parent in complying with the requirements of a permanency plan. In re Kaliyah S., 455 S.W.3d at 555 (holding that "proof of reasonable efforts is not a precondition to termination of the parental rights of the respondent parent"); see also In re Skylar P., No. E2016-02023-COA-R3-PT, 2017 WL 2684608, at *7 (Tenn. Ct. App. June 21, 2017).
In re M.J.B., 140 S.W.3d 643, 656-57 (Tenn. Ct. App. 2004) (citing In re Valentine, 79 S.W.3d at 547-49; In re L.J.C., 124 S.W.3d 609, 621 (Tenn. Ct. App. 2003); In re Z.J.S., 2003 WL 21266854, at *12; Dep't of Children's Servs. v. C.L., No. M2001-02729-COA-R3-JV, 2003 WL 22037399, at *18 (Tenn. Ct. App. Aug. 29, 2003)). Although the statute does not define "substantial noncompliance," our Supreme Court has explained that "the real worth and importance of noncompliance should be measured by both the degree of noncompliance and the weight assigned to that requirement." In re Valentine, 79 S.W.3d at 548. "`[P]ermanency plans are not simply a series of hoops for the biological parent to jump through in order to have custody of the children returned.'" In re Derrick J., No. E2015-01507-COA-R3-PT, 2016 WL 3752013, at *11 (Tenn. Ct. App. July 8, 2016) (quoting In re C.S., Jr., No. M2005-02499-COA-R3-PT, 2006 WL 2644371, at *10 (Tenn. Ct. App. Sept. 14, 2006)). Instead,
Id. (quoting In re C.S., Jr., 2006 WL 2644371, at *10).
The Department was required to remove Gabriel from Father and Mother's custody when they were arrested for shoplifting in December 2015. Mother testified that she and Father were both using illegal drugs and that they went to the Walmart on the day they were arrested for the purpose of shoplifting and to be able to acquire more illegal drugs. Father underwent a hair follicle drug test on January 29, 2016, and he tested positive for cocaine, benzoylecgonine, and cocaethylene. Father underwent a second drug test on April 27, 2016, and he again tested positive for cocaine and benzoylecgnonine. The Department added more responsibilities to the second permanency plan because Father had failed to complete all of the goals set out in the first plan and because of the Department's concerns about Father's drug use, his failure to show up at all of his scheduled visits with Gabriel, and his overall stability.
While the second permanency plan was in force, Ms. Anderson attempted to conduct a home study in March 2016 and met Father at a house he said he owned in Counce, Tennessee. Ms. Anderson became concerned about Father's veracity when he was unable to get past the locked gates in the driveway and after Ms. Anderson received a call from a man who claimed he, and not Father, owned the house. Ms. Anderson testified about this as follows:
By the time the third permanency plan was put into place, conducting a home study had become a priority because Father had not yet provided Ms. Anderson with a residence that she could visit. Ms. Anderson testified that Father never provided her with a lease of an apartment or house he was renting, nor did he ever provide her with any documentation reflecting his ownership of any house(s) he claimed to own. At trial, Father described a house he claimed to own in Pigeon Forge, and he agreed to send documentation to his lawyer reflecting his ownership that would be included in the record as a late-filed exhibit. However, the appellate record does not include this documentation, and Father did not address this issue in his appellate brief.
Ms. Anderson testified that Father missed several scheduled visits with Gabriel between October 2016 and trial. She testified that she went to meet with him at Carl Perkins on September 27, 2017, prior to trial, but that he did not show up for his visit with Gabriel on that day. In fact, she stated, Father did not visit Gabriel in July, August, or September 2017.
The record shows that Father was arrested in March 2016 for driving under the influence. He was arrested again in August 2016 and charged with impersonating an undercover agent with the Federal Bureau of Investigation, domestic assault, resisting arrest, disorderly conduct, aggravated assault, and driving under the influence. Father pleaded guilty to these charges and was sentenced to serve just under one year in the county jail. Father was placed under supervised probation for eleven months and two days of his sentence. Father did not testify that he provided Ms. Anderson with the name of his probation officer, as he was required to do under the second and third permanency plans.
The second permanency plan required Father to undergo alcohol and drug treatment. The third permanency plan indicated that Father had completed an alcohol and drug assessment on March 28, 2016, and that the results showed that Father "did not warrant out-patient treatment substance abuse treatment at that time." However, the third plan continued, Father's drug test the following month, on April 27, 2016, was positive for cocaine. As a result, the third plan required Father to undergo another alcohol and drug assessment, and Father was directed to "participate honestly with said assessment and provide assessor a copy of ALL his prior drug screens." Father was required to sign a release allowing the FSW to have a copy of his results/recommendations. Ms. Anderson testified that she never received information that Father complied with this requirement by sharing any of his positive drug screens with an alcohol and drug assessor, as required.
Father was also required by all three permanency plans to undergo random drug screens. Ms. Anderson testified that Father was asked to undergo a hair follicle drug test on March 31, 2017, but that he refused to have this test done until June 2017. Ms. Anderson testified:
Ms. Anderson explained that by the time Father agreed to be tested in June 2017, the test came back negative.
The trial court found that DCS proved the ground of substantial noncompliance with the permanency plans by clear and convincing evidence. The court found that Father complied with the plans' requirements that he complete parenting classes and provide verification thereof and complete a DUI program as outlined by the court. The court found that Father failed to comply with the plans' requirements that he (1) provide DCS with a copy of his paystub to verify employment; (2) provide DCS with a copy of a lease to verify housing; (3) complete anger management and domestic abuse counseling; (4) provide DCS with the name and contact information of his probation officer;
The trial court wrote:
Father does not challenge the trial court's findings that his responsibilities under the plans were reasonably related to remedying the conditions that caused Gabriel to be removed from his custody in December 2015. Rather, Father argues that the trial court erred in ruling that he had not substantially complied with the requirements of the permanency plans because he missed only nineteen of fifty-six visits with his son, he addressed all of his alcohol and drug issues, he did not test positive for any illegal substances after April 2016, and he completed the requisite parenting classes.
A review of the notes from Carl Perkins reveals that Father called many times in advance of the dates when he was unable to get to the center to visit with Gabriel, and he made an effort to reschedule some of the visits he missed, but he did not call or show up for at least five scheduled visits and was unresponsive to phone calls from Carl Perkins to find out if he was on his way or not able to make it at all that day. Moreover, Ms. Anderson testified that Father did not visit his son once in the three months prior to trial.
In addition to Father's missed visits, DCS was never able to complete a home study to determine if Father's living situation was appropriate for raising a young child, and Father failed throughout the pendency of this case to verify his employment or financial situation to show he was able to provide for Gabriel.
We agree with the trial court's determination that the requirements of the permanency plans were reasonable and related to remedying the conditions that caused Gabriel to be removed from Father's custody in December 2015 and that Father's noncompliance was substantial in light of the importance of the requirements that he failed to meet. See In re M.J.B., 140 S.W.3d at 656-57 (discussing requirements for proving substantial noncompliance with permanency plans). Accordingly, we affirm the trial court's determination that DCS proved this ground for the termination of Father's rights by clear and convincing evidence.
Father argues in his appellate brief that the Department's petition to terminate his rights should be dismissed because DCS failed to attach a copy of the Criteria and Procedures for TPR to the first permanency plan. Father made the same argument at trial, to which the trial court responded in its written order:
The statute governing the contents of permanency plans directs DCS to include a statement with the plans that describes the criteria and procedures for terminating parental rights. Tenn. Code Ann. § 37-2-403(a)(2)(A). The statute also directs that "[e]ach party shall sign the statement and be given a copy of it." Id. The statute does not indicate, however, that a permanency plan becomes invalid if DCS neglects to attach to it the Criteria and Procedures for TPR, and Father does not cite any cases that suggest this should be the result.
In its order ratifying the first permanency plan, the trial court wrote that it "fully explained the Termination of Parental Rights Criteria to the father on the hearing date." Thus, Father cannot credibly argue he was unaware of the contents of the Criteria and Procedures for TPR once the hearing ratifying the first plan took place on January 21, 2016. Furthermore, there is no question that the Criteria and Procedures for TPR were attached to the second and third permanency plans and that Father signed each of these statements as required by the statute. The purpose of requiring the Criteria and Procedures for TPR to be included with permanency plans is to make sure the parent or guardian is aware of the grounds and procedures for terminating his or her parental or guardianship rights and of what he or she must do to avoid having his or her rights terminated. This purpose was achieved when the trial court explained the contents of the document to Father on January 21, 2016, as well as when Father signed the statements affirming that he had received a copy and an explanation of the document on December 15, 2016, and June 15, 2017, the dates when the second and third permanency plans were signed. Thus, Father's argument that the Department's petition to terminate his rights should be dismissed because DCS failed to attach a copy of the Criteria and Procedures for TPR to the first permanency plan is not well-taken.
In addition to the other grounds, the trial court based its decision to terminate
Father's parental rights on the ground commonly referred to as "persistence of conditions." The requirements for this ground include the following:
Tenn. Code Ann. § 36-1-113(g)(3) (2017).
The persistence of conditions ground is only available in situations where a court has entered an order that the child at issue was removed from a parent's custody due to dependency, neglect, or abuse. In re Audrey S., 182 S.W.3d at 874. The rationale for including this ground as a basis for terminating a parent's rights is "`to prevent the child's lingering in the uncertain status of foster child if a parent cannot within a reasonable time demonstrate an ability to provide a safe and caring environment for the child.'" In re Jamazin H.M., No. W2013-01986-COA-R3-PT, 2014 WL 2442548, at *6 (Tenn. Ct. App. May 28, 2014) (quoting In re D.C.C., No. M2007-01094-COA-R3-PT, 2008 WL 588535, at *9 (Tenn. Ct. App. Mar. 3, 2008)). The Department is not required to demonstrate that Father's relationship with his child is beyond repair or that Father poses a danger to Gabriel's safety or emotional health before a court can find DCS has established this ground. Id. (citing In re K.A.H., No. M1999-02079-COA-R3-CV, 2000 WL 1006959, at *5 (Tenn. Ct. App. July 21, 2000)).
In determining that DCS proved the persistence of conditions ground by clear and convincing evidence, the trial court wrote:
We agree with the trial court that DCS proved this ground by clear and convincing evidence. First, the trial court entered a preliminary, adjudicatory, and dispositional order on December 17, 2015, finding that DCS proved by clear and convincing evidence that Gabriel "is dependent and neglected within the meaning of the law." Father did not appeal this order. Second, we find that the Department has established by clear and convincing evidence that the conditions that led to Gabriel's removal or other conditions which in all reasonable probability would cause Gabriel to be subjected to further neglect and prevent Gabriel to be returned safely to Father's care still persist. Gabriel was initially removed because Mother and Father were placed in jail, which left Gabriel with no home or caretakers. Despite the Department's repeated requests, Father never provided DCS with the address of a residence where DCS could perform a home study. The reason Mother and Father were arrested and jailed when Gabriel was placed in state custody was because they were shoplifting, and the evidence showed they were shoplifting for the purpose of obtaining drugs. Father never provided proof to DCS that he was legally employed. These facts, together with the requirements of the permanency plans with which Father was not in substantial compliance, lead us to conclude that the conditions that led to Gabriel's removal or other conditions still persist that would in all probability cause Gabriel to be subjected to further neglect and prevent Gabriel from being safely returned to Father's care. Third, Father has not demonstrated a likelihood that these conditions will be remedied anytime soon to allow Gabriel to be returned safely to his care.
Finally, the record contains evidence that Gabriel's foster parents are interested in adopting him and that Gabriel is thriving with his foster family. Gabriel's foster mother gave birth to a child shortly after Gabriel was placed in her and her husband's home, and the evidence shows that Gabriel treats the younger child as his sibling and calls his foster mother and father "Mom" and "Dad." The continuation of Father's relationship with Gabriel greatly diminishes the opportunity for Gabriel to be permanently integrated into the foster family's home, as the foster parents desire. Thus, we affirm the trial court's determination that DCS proved the persistence of conditions ground for termination of Father's rights by clear and convincing evidence.
Having found that clear and convincing evidence exists to terminate Father's parental rights, we next consider whether the trial court properly determined that termination of his rights is in the child's best interest. See Tenn. Code Ann. § 36-1-113(c)(2); In re Audrey S., 182 S.W.3d at 860. "Facts relevant to a child's best interests need only be established by a preponderance of the evidence, although DCS must establish that the combined weight of the proven facts amounts to clear and convincing evidence that termination is in the child's best interests." In re Carrington H., 483 S.W.3d at 535 (citing In re Kaliyah S., 455 S.W.3d at 555).
The factors a trial court is to consider in determining whether terminating a parent's rights to a child is in the child's best interests are set forth in Tenn. Code Ann. § 36-1-113(i) and include the following:
The Tennessee Supreme Court has addressed the steps DCS must take to reunify a family before a court will terminate a parent's rights, explaining:
In re Kaliyah S., 455 S.W.3d at 555-56.
The trial court conducted a best interest analysis and found as follows:
Father does not challenge the trial court's best interest analysis, and we find the record supports the trial court's findings set forth above. We agree with the trial court that DCS proved by clear and convincing evidence that terminating Father's rights to Gabriel is in Gabriel's best interest. Accordingly, we affirm the trial court's judgment terminating Father's parental rights to Gabriel.
We affirm the trial court's judgment terminating Father's parental rights on the grounds of abandonment by willful failure to support, substantial noncompliance with the permanency plans, and persistence of conditions, and we vacate the trial court's termination on the ground of failure to provide a suitable home. This matter is remanded with costs of appeal assessed against Brock R.B., for which execution may issue if necessary.
