author: J. STEVEN STAFFORD, J.,

text:
    In the Matter of ARTERIA H.
    Court of Appeals of Tennessee, Western Section, at Jackson.
    July 27, 2010 Session.
    Aug. 4, 2010.
    Application for Permission to Appeal Denied by Supreme Court Oct. 14, 2010.

      Curtis D. Johnson, Jr., Memphis, Tennessee, for the appellant, Berthenia H.
    W. Ray Glasgow, Memphis, Tennessee, for the appellant, Arterio H.
    Robert E. Cooper, Jr., Attorney General and Reporter and Douglas Earl Dimond, Senior Counsel, for appellee, State of Tennessee, Department of Children’s Services.
    Erica C. Gatewood, Memphis, Tennessee, Guardian Ad Litem.
   OPINION

J. STEVEN STAFFORD, J.,

delivered the opinion of the Court,

in which DAVID R. FARMER, J., and HOLLY M. KIRBY, J., joined.

This is a termination of parental rights case. Both Mother and Father appeal the trial court’s decision to terminate their parental rights. After a thorough review of the record, we affirm.

This case involves the termination of parental rights to Arteria H. (d.o.b 9/11/2006), who has been in state custody for the majority of her life. Arteria H. originally came into state custody when her Father, Arterio H. (“Father”) brought her to the hospital in January 2007, when she was four months old and sick. At this time, Father did not know the whereabouts of the child’s mother, Berthenia H. (“Mother”). Mother regained custody of Arteria H. on June 5, 2007. However, it was alleged that when Mother came to the hospital to take Arteria H. home, Mother admitted to the social worker that she smoked marijuana twice a day. Accordingly, the Juvenile Court of Shelby County entered an order three days later, on June 8, 2007, finding probable cause to believe Arteria H. was dependent and neglected and returning custody to the Department of Children’s Services (“DCS”). On April 8, 2008, Arteria H. was adjudicated dependent and neglected by default, when Mother failed to appear at the hearing. As the result of this determination, several permanency plans were entered. All of the permanency plans required Mother to obtain stable employment and stable housing.

On September 2, 2008, this action began when DCS filed its petition to terminate the parental rights of both Mother and Father to Arteria H. in the Chancery Court of Shelby County. DCS contended that Mother’s parental rights should be terminated based upon (1) abandonment by willfully failing to visit for four consecutive months immediately prior to the filing of the petition pursuant to Tenn.Code. Ann. § 86 — 1—113(g)(1); (2) abandonment by willfully failing to support Arteria H. pursuant to Tenn.Code Ann. § 36-1-113(g)(1); (3) for failing to comply with the requirements of the permanency plan pursuant to Tenn.Code Ann. § 36-1-113(g)(2); (4) for persistence of conditions which led to the removal of Arteria H. pursuant to Tenn.Code. Ann. § 36-1-113(g)(3); and (5) abandonment for exhibiting a wanton disregard for the welfare of Arteria H. prior to incarceration pursuant to Tenn.Code Ann. § 36 — 1—113(g)(1). DCS contended that Father’s parental rights should be terminated for (1) abandonment of Arteria H. by willfully failing to support Arteria H. pursuant to Tenn. Code Ann. § 36 — 1—113(g)(1); (2) abandonment for exhibiting a wanton disregard for the welfare of Arteria H. prior to incarceration pursuant to Tenn.Code. Ann. § 36-1-113(g)(1); and (3) for receiving a sentence of ten years or more and the child at issue being under the age of eight at the time the sentence was issued pursuant to Tenn. Code. Ann. § 36 — 1—113(g)(6). Further, DCS alleged that it was in the best interest of Arteria H. to terminate the parental rights of both Mother and Father.

DCS filed an amended petition on October 31, 2008. This petition is identical to the original except that it requested service by publication on Mother. The trial court appointed separate counsel for both Mother and Father, as well as a guardian ad litem.

The trial court held a hearing on April 15, 2009 and May 12, 2009 on the petition to terminate parental rights. On June 30, 2009, the trial court entered an Order of Continuance. In this order, the trial court found that Mother had not complied with the permanency plans, “which required her to refrain from drugs, obtain stable housing and income, complete drug classes, and visit” Arteria H. The trial court also found that Father had been sentenced to eleven years incarceration. The trial court found that Mother had made an effort to comply with the permanency plan, but that her efforts had been hampered “due to the use of marijuana and frequent run-ins with law enforcement.” The trial court also found that Mother may have been confused about the role of DCS, but that Mother did maintain contact with her case manager from Youth Villages. The trial court then continued the matter for six months and ordered DCS to create new permanency plans for both Mother and Father, and to conduct home studies on at least three of Father’s relatives, and ordered both parents to secure jobs.

Prior to the filing of the Order of Continuance, DCS filed a Motion for Reconsideration and to Vacate the Order of Continuance and for a Final Order. On August 4, 2009, the trial court entered an order denying DCS’ motion. In this order, the trial court specifically stated that it “found that [DCS] had not followed the reasonable efforts statute.” The trial court also held that the proof shall remain open until October 13, 2009.

The trial court heard further proof on October 27 and 28, 2009. At this hearing, Mother admitted that she still did not have a job and that she had not worked since 2007. Mother also admitted that she had not obtained stable housing and had lived in at least three different places since the hearing in May 2009. Mother described her efforts to obtain employment and housing, and what she perceived as her barriers to obtaining employment and housing. Andrea Simpson (“Ms. Simpson”), a family counselor with Youth Villages, testified about her efforts to assist Mother in obtaining a job and housing, as well as Mother’s own efforts. Ms. Simpson testified that since May 2009, visitation had improved and Mother’s drug use was “tremendously better.” However, Ms. Simpson opined that she did not believe Mother would be able to find a job, a house, and care for Arteria H. in a reasonable period of time. Mother’s aunt and mother also testified about DCS’ efforts to place Arteria H. in their respective homes. Sheryl Brewer-Boyle (“Ms. Boyle”), the DCS case worker assigned to Arteria H.’s case, testified about her interactions with Mother. She testified that Mother was “minimally compliant” with the permanency plan and that Mother has no stable housing. Father also testified at the hearings. He testified that he was presently incarcerated, serving an eleven year sentence, but that he hoped to be released on parole soon. He further testified that he had not had any contact with Arteria H. since January 2007 nor had he attempted to make any contact. The foster mother also testified as to her relationship with Arteria H. and the development she has seen in Arteria H. while the child has been in her custody.

On January 18, 2010, the trial court entered its findings of fact and conclusions of law, and order terminating the parental rights of both Mother and Father to Arte-ria H. The trial court declined to find that Mother abandoned Arteria H. based upon a willful failure to visit, as the trial court found that Mother’s visitation was often “thwarted” by DCS. The trial court also declined to find that Mother abandoned Arteria H. based upon a willful failure to support, finding that it was “questionable as to whether [Mother] had the resources to pay support” and Mother would provide clothing and gifts to Arteria H. at visitation. However, the trial court found, by clear and convincing evidence, that there was persistence of conditions and that Mother had “failed to substantially comply with the permanency plans, to wit, to obtain and maintain stable housing and employment, and it is unlikely she will be able to do so in the near future.” As to Father, the trial court found that he abandoned Arteria H. by exhibiting a willful and wanton disregard for the welfare of Arteria H. prior to his incarceration. Also, the trial court found that Father’s rights should be terminated pursuant to Tenn. Code Ann. § 36-l-113(g)(6) because he was sentenced to eleven years incarceration and Arteria H. was under the age of eight at the time he was sentenced. Consequently, the trial court found that grounds to terminate both Mother and Father’s parental rights exist. The trial court then considered the best interest of Arteria H. and found that Arte-ria H. has an attachment and bond with her foster mother, that there would be “negative and traumatic consequences” if she was removed from her foster mother and returned to Mother, and that there were not strong ties and attachment between Mother and Arteria H. Moreover, the trial court found that there were no relatives of Mother or Father suitable to take custody of Arteria H. Based on these findings, the trial court terminated the parental rights of both Mother and Father to Arteria H.

Mother and Father filed separate notices of appeal on February 11, 2010. On appeal, Father raises two issues for our review:

1. Whether the Department of Children’s Services made reasonable efforts to find a relative placement for Father’s child, and if not, whether their errors rise to the level of egregiousness that the termination against Father should be reversed and remanded?
2. Whether ineffective assistance of counsel at the Juvenile Court proceedings harmed Father’s parental rights as to receiving reasonable efforts by the Department of Children’s Services to place the minor child with relatives?

Mother raises one issue for our review:

Whether the trial court erred in ruling that the parental rights of [Mother] should be terminated based upon persistence of conditions, based upon her lack of stable housing, past due Memphis Light Gas and Water utility bill, and her lack of income?

Under both the United States and Tennessee Constitutions, a parent has a fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn.1996). Thus, the state may interfere with parental rights only if there is a compelling state interest. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). Our termination statutes identify “those situations in which the state’s interest in the welfare of a child justifies interference with a parent’s constitutional rights by setting forth grounds on which termination proceedings can be brought.” In re W.B., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn.Ct.App. Apr. 29, 2005) (citing Tenn.Code Ann. § 36-1-113(g)). A person seeking to terminate parental rights must prove both the existence of one of the statutory grounds for termination and that termination is in the child’s best interest. TenmCode Ann. § 36 — 1—113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn.2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn.2002).

Because of the fundamental nature of the parent’s rights and the grave consequences of the termination of those rights, courts must require a higher standard of proof in deciding termination cases. Santosky, 455 U.S. at 769, 102 S.Ct. 1388. Consequently, both the grounds for termination and the best inter7 est inquiry must be established by clear and convincing evidence. TenmCode Ann. § 36 — 3—113(c)(1); In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence “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 M.J.B., 140 S.W.3d 643, 653 (Tenn.Ct.App.2004). Such evidence “produces in a fact-finder’s mind a firm belief or conviction regarding the truth of the facts sought to be established.” Id. at 653.

In light of the heightened standard of proof in termination of parental rights cases, a reviewing court must modify the customary standard of review set as forth in Tenn. R.App. P. 13(d). As to the trial court’s findings of fact, our review is de novo with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R.App. P. 13(d). We must then determine whether the facts, as found by the trial court or as supported by the preponderance of the evidence, clearly and convincingly establish the elements necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn.2002). When the resolution of an issue in a case depends upon the truthfulness of witnesses, the trial judge who has had the opportunity to observe the witnesses and their manner and demeanor while testifying is in a far better position than this Court to decide those issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn.Ct.App.1997). The weight, faith, and credit to be given to any witness’ testimony lies in the first instance with the trier of fact, and the credibility accorded will be given great weight by the appellate court. See id.; see also Walton v. Young, 950 S.W.2d 956, 959 (Tenn.1997).

We will address the termination of Mother’s and Father’s parental rights separately.

Mother

The trial court terminated Mother’s parental rights to the child on two statutory grounds: substantial noncompliance with permanency plans pursuant to Tenn.Code Ann. §§ 36-1-113(g)(2), and persistence of conditions pursuant to Tenn.Code Ann. § 36-1-113(g)(3). We note at the outset, that these are two separate grounds, each having distinct elements. Often parental termination cases present fact situations which would support both a finding of substantial non-compliance and persistence of conditions. This is due to the fact that Tenn.Code Ann. § 37-2-403 requires a permanency plan to be created any time a child is removed from his or her parents and placed in foster care. The requirements set forth in the permanency plan, which non-compliance with could support termination, are often directly related to remedying the conditions which led to the removal of the child from the home, which if not remedied could also support termination. However, there may be situations in which there is substantial non-compliance but not persistence of conditions, and vice versa.

Parental rights may be terminated under the statute when:

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.

Tenn.Code Ann. § 36-l-113(g)(2). As this Court has previously explained:

Terminating parental rights based on Tenn.Code Ann. § 36-l-113(g)(2) requires more proof than that a parent has not complied with every jot and tittle of the permanency plan. To succeed under TenmCode Ann. § 36-l-113(g)(2), [DCS] must demonstrate first that the requirements of the permanency plan are reasonable and related to the conditions that caused the child to be removed from the parent’s custody in the first place, In re Valentine, 79 S.W.3d [539,] 547; In re L.J.C., 124 S.W.3d 609, 621 (Tenn.Ct.App.2003), and second that the parent’s noncompliance is substantial in light of the degree of noncompliance and the importance of the particular requirement that has not been met. In re Valentine, 79 S.W.3d at 548-49; In re Z.J.S., 2003 WL 21266854, at *12. Trivial, minor, or technical deviations from a permanency plan’s requirements will not be deemed to amount to substantial noncompliance. In re Valentine, 79 S.W.3d at 548; Department of Children’s Servs. v. C.L., No. M2001-02729-COA-R3-JV, 2003 WL 22037399, at *18 (Tenn.Ct.App. Aug. 29, 2003)(no Tenn. R.App. P. 11 application filed.)

In re M.J.B., 140 S.W.3d 643, 656-57 (Tenn.Ct.App.2004). Additionally, DCS must make reasonable efforts to assist the parent in meeting the requirements of the plan. See In re D.D.V., M2001-02282-COA-R3-JV, 2002 WL 225891, 2002 Tenn. App. LEXIS 126 (Tenn.Ct.App. Feb. 14, 2002)’

A second ground for termination of parental rights is provided for in Tenn.Code Ann. § 36 — 1—113(g)(3) which states:

(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 failure to remedy the conditions which led to the removal need not be willful. In re T.S. and M.S., No. 1999-01286-COA-R3-CV, 2000 WL 964775, at *6 (Tenn.Ct. App. July 13, 2000)(citing State Dep’t of Human Servs. v. Smith, 785 S.W.2d 336, 338 (Tenn.1990)). “A parent’s continued inability to provide fundamental care to a child, even if not willful, ... constitutes a condition which prevents the safe return of the child to the parent’s care.” In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576, at *20 (Tenn.Ct.App. Oct. 13, 2008)(citing In re T.S., No. M1999-01286-COA-R3-CV, 2000 WL 964775, at *7 (Tenn.Ct.App. July 13, 2000)). ‘Where, as here, efforts to provide help to improve the parenting abilities, offered over a long period of time, have proved ineffective, the conclusion that there is little likelihood of such improvement as would allow the safe return of the child to the parent in the near future is justified.” Id. Mother has only appealed from the trial court’s finding of persistence of conditions.

In In re Audrey S., 182 S.W.3d 838 (Tenn.Ct.App.2005), this Court held that, “based upon the statutory text and its historical development, TenmCode Ann. § 36 — 1—113(g)(3) [ground of persistence of conditions] applies as a ground for termination of parental rights only where the prior court order removing the child from the parent’s home was based on a judicial finding of dependency, neglect, or abuse.” On April 8, 2008, the Juvenile Court found Arteria H. to be dependent and neglected when Mother did not appear at the hearing, and it found that mother has not worked with DCS; has admitted drug use, failed drug screens and has not participated in drug and alcohol treatment; has not completed parenting classes; and has failed to obtain stable housing and employment. The trial court found that some of the conditions which lead to the removal of Arteria H. continued to persist. Specifically, the trial court found that Mother had failed to obtain stable housing and had failed to obtain stable employment. Moreover, the trial court also found that there is little likelihood that Mother would be able to secure stable employment or housing in the near future.

We have reviewéd the record and agree with the trial court’s determination that some of the conditions which led to the removal of Arteria H. continued to persist. Mother admitted numerous times that she had not been employed since 2007. Further, Mother did not provide any verification for the job she allegedly had in 2007. Also, Mother admitted that she had not obtained stable housing at the time of the final hearing or at any time during the course of the proceedings. Based upon Mother’s own testimony, she was essentially vagrant, staying at various places, including her aunt’s home, her mother’s home, her boyfriend’s home, her boyfriend’s mother’s home, and a shelter for short periods of time before moving on to the next place. We recognize that Mother attempted to obtain stable housing and that in fact she was consistent in her efforts during the final months of this action. However, “[a] parent’s continued inability to provide fundamental care to a child, even if not willful, ... constitutes a condition which prevents the safe return of the child to the parent’s care.” In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576, at *20 (Tenn.Ct.App. Oct. 13, 2008)(citing In re T.S., No. M1999-01286-COA-R3-CV, 2000 WL 964775, at *7 (Tenn.Ct.App. July 13, 2000)). Here, efforts to assist Mother and Mother’s own efforts to obtain stable housing and employment have proved ineffective and there is little likelihood of such improvement as would allow the safe return of Arteria H. in the near future. Mother’s Youth Villages family counselor, who had been assisting Mother in her employment and housing search, testified that she did not believe Mother would be able to find a house, job, or care for the child in a reasonable time period. She further testified that Mother cannot meet the basic needs of the child and she did not recommend reunification.

The purpose behind the “persistence of conditions” ground for terminating parental 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 A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576, at *20 (Tenn.Ct.App. Oct. 13, 2008)(quoting In re D.C.C., No. M2007-01094-COA-R3-PT, 2008 WL 588535, at *9 (Tenn.Ct.App. Mar. 3, 2008)). After reviewing the record as a whole, we find that the evidence supports the trial court’s finding, by a clear and convincing standard, that some of the conditions which lead to the removal of Arteria H. still persist, that there is little likelihood that these conditions will be remedied at an early date so that the child may be returned to Mother and that the continuation of the parent-child relationship diminishes A.H’s chances of an early integration into a safe, stable and permanent home. Tenn.Code. Ann. § 36-1 — 113(g)(3).

However, before the trial court may terminate parental rights based upon a persistence of conditions, the trial court must determine that DCS made reasonable efforts to assist the parent in remedying the conditions which led to the removal of the child. In Re C.M.M. & S.D.M., No. M2003-01122-COA-R3-PT, 2004 WL 438326, n. 27 (Tenn.Ct.App. March 9, 2004); Tenn.Code Ann. § 37-l-166(a). Mother asserts on appeal that DCS did not make reasonable efforts to assist her in obtaining a job or housing.

Termination on the ground of persistence of conditions implicates DCS’ obligation to demonstrate that it made reasonable efforts to reunite the child with the parent. In Re C.M.M. & S.D.M., No. M2003-01122-COA-R3-PT, 2004 WL 438326, n. 27 (Tenn.Ct.App. March 9, 2004). When DCS’ obligation to make reasonable efforts is implicated, DCS must prove by clear and convincing evidence that it made reasonable efforts. In Re R.L.F., 278 S.W.3d 305, 316 (Tenn.Ct.App. 2008). “This burden required that [DCS] present sufficient evidence to enable us to conclude without serious or substantial doubt, that the efforts were reasonable under the circumstances.” Id.

The procedure for establishing reasonable efforts is set forth in Tenn. Code Ann. § 37-l-166(c). Pursuant to this statute, DCS must file an affidavit with the court to enable it to determine whether reasonable efforts have been made. Tenn.Code Ann. § 37-l-166(e). This affidavit must detail (1) whether removal of the child is necessary to protect the child, and if so, what are the risks which necessitate removal; (2) identify the specific services necessary to reunite the family; (3) detail which services have been provided; and (4) state whether DCS has had the opportunity to provide services to the family and if not, explain why the services have not been provided. Tenn. Code Ann. § 37-l-166(c)(l)-(4). An affidavit which meets the requirements of Tenn.Code Ann. § 37-l-166(c) is sufficient to establish the reasonableness of DCS’ efforts by clear and convincing evidence. In re Giorgianna H., 205 S.W.3d 508, n. 22 (Tenn.Ct.App.2006); see also In Re C.M.M. & S.D.M., No. M2003-01122-COA-R3-PT, 2004 WL 438326, at *8 (Tenn.Ct.App. March 9, 2004). “Thus, unless a parent asserts that [DCS’] efforts were not reasonable, [DCS] is not required to present additional evidence regarding its remedial efforts.” Id. However, if a parent disputes the reasonableness of DCS’ efforts, DCS may be required to present additional proof regarding its efforts. Id. It has been held however, that failure to comply with this statutory requirement, is not fatal as long as DCS presents sufficient, specific evidence to establish the reasonableness of its efforts. In Re C.M.M. & S.D.M., No. M2003-01122-COA-R3-PT, 2004 WL 438326, at *8 (Tenn.Ct.App. March 9, 2004); see also In Re R.L.F., 278 S.W.3d 305, 316 (Tenn.Ct.App.2008)(proeeeding with review to determine the reasonableness of DCS’ efforts despite the finding that DCS did not file the statutorily required affidavit). In this case, DCS did not file an affidavit. Therefore, we are required to review the record to determine if DCS presented sufficient evidence to establish the reasonableness of its efforts.

“The success of a parent’s remedial efforts generally depends on [DCS’] assistance and support.” In re Giorgianna H., 205 S.W.3d 508, 518 (Tenn.Ct.App.2006). “Accordingly, the [DCS] employees have an affirmative duty to utilize their education and training to assist parents in a reasonable way to address the conditions that led to the child’s removal.... ” In re R.L.F., 278 S.W.3d at 316. The duty to exert reasonable efforts exists whether the parent asks for assistance or not. Id. The efforts made need not be “herculean.” In re Giorgianna H., 205 S.W.3d 508, 518 (Tenn.Ct.App.2006)(citing In Re C.M.M. & S.D.M., No. M2003-01122-COA-R3-PT, 2004 WL 438326 (Tenn.Ct.App. March 9, 2004)). But, DCS must do more than simply provide the parents with a list of services. Id. Reasonable efforts is statutorily defined as “the exercise of reasonable care and diligence by the department to provide services related to meeting the needs of the child and the family.” Tenn. Code Ann. § 37 — 1—166(g)(1). To determine whether reasonable efforts have been made, the trial court should consider:

1. The reasons for separating the parents from their children,
2. The parents’ physical and mental abilities,
3. The resources available to the parents,
4. The parents’ efforts to remedy the conditions that required removal of the children,
5. The resources available to the Department,
6. The duration and extent of the parents’ efforts to address the problems that caused the children’s removal, and
7. The closeness of the fit between the conditions that led to the removal of the children, the requirements of the permanency plan, and [DCS’] efforts.

In re Giorgianna H., 205 S.W.3d 508, 518 (Tenn.Ct.App.2006).

However, the duty to make reasonable efforts is not a one-way street. Parents share the responsibility of addressing the conditions as well. “Thus, parents desiring the return of their children must also make reasonable and appropriate efforts to rehabilitate themselves and to remedy the conditions that required [DCS] to remove their children from their custody.” Id. at 519.

After reviewing the record, we have determined that DCS did exert reasonable efforts to reunify Mother and Arteria H. Vandra Parks, a counselor with Health Connect America, testified that she helped Mother with her employment and housing search, including taking Mother to a drug test in order to obtain a job at Exxon, providing Mother with a list of subsidized housing and career center information, and counseling Mother on how to interview and dress for an interview. Ms. Parks testified that her efforts were hampered because she was not able to locate Mother for much of the time. Andrea Simpson, a counselor with Youth Villages testified that she too assisted Mother in her search for employment and housing. Ms. Simpson testified that she helped Mother fill out job applications, provided Mother with transportation to apply for jobs, allowed Mother to use her cell phone number on Mother’s job applications, and took Mother to look at and apply for low-income housing. Youth Villages also provided Mother with a bus card for her use when Ms. Simpson could not provide her with transportation. Cheryl Brewer-Boyle, the case manager for DCS, testified that for a period of time DCS did not contact Mother. However, Ms. Boyle explained that Youth Villages did have contact with Mother and DCS had contracted with Youth Villages to provide services in this case. Ms. Boyle testi-fled that Youth Villages was the primary contact for Mother because she, as the DCS representative, is based out of Fay-ette County. Ms. Boyle admitted that DCS did nothing to assist Mother with her past due utility bill which Mother asserted was a barrier to her obtaining housing. My Boyle, however, explained that flex funding, which may have been available to pay a portion of the utility bill, was only available once Mother obtained a place to live. According to Ms. Boyle, Ms. Simpson took Mother to a housing complex and to the Department of Human Services to apply for public assistance.

While it appears from the record that DCS’ efforts were questionable at the beginning of these proceedings, the efforts did greatly improve and the trial court correctly found that DCS made reasonable efforts to provide Mother with services to remedy the conditions which led to the removal of Arteria H. from her care. While DCS was actively working to assist Mother in obtaining housing and a job, Mother admitted that some days she would just stay in bed and not do anything to remedy her situation. Moreover, often, DCS or Youth Villages would be unable to locate and contact Mother to provide assistance or check on her progress. We recognize that after the trial court continued the hearing to allow DCS and the parents to continue to improve on the situation, Mother worked to make progress on many of the conditions which led to the removal of Arteria H. Mother faithfully attended anger management classes, and following the May 2009 hearing became drug free from June 2009 through the final hearing. Also, as Ms. Simpson testified, Mother’s efforts to obtain a job and housing had been consistent since the trial court’s continued the hearing in May 2009. Unfortunately, Mother, even with the additional time granted by the trial court and the additional efforts of DCS and Youth Villages, was not able to remedy all of the conditions which led to the removal of Arteria H. Despite the reasonable efforts by DCS, the evidence reflects that it is unlikely that Mother will be able to remedy the conditions in the near future so that she might provide Arteria H. with a stable and secure environment.

We have no doubt that Mother loves and cares for Arteria H. However, she has been given over two years to remedy the conditions which led to the removal of Arteria H. and has not made satisfactory progress. “A parent’s continued inability to provide fundamental care to a child, even if not willful, ... constitutes a condition which prevents the safe return of the child to the parent’s care.” In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576, at *20 (Tenn.Ct.App. Oct. 13, 2008)(citing In re T.S., No. M1999-01286-COA-R3-CV, 2000 WL 964775, at *7 (Tenn.Ct.App. July 13, 2000)). “Where, as here, efforts to provide help to improve the parenting abilities, offered over a long period of time, have proved ineffective, the conclusion that there is little likelihood of such improvement as would allow the safe return of the child to the parent in the near future is justified.” Id. Consequently, we affirm the trial court’s finding that grounds for termination of Mother’s parental rights to Arteria H. exist as the conditions which led to the removal of the child persist, under Tenn.Code. Ann. § 36 — 1— 113(g)(3).

In order to terminate parental rights, only one of the statutory grounds must be established. TenmCode Ann. § 36 — 1—113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn.2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn.2002). Although Mother has not contested the remaining ground, substantial non-compliance, this Court has reviewed the entire record. We conclude that the evidence does not preponderate against the trial court’s finding that, in addition to persistence of conditions, substantial noncompliance was established by clear and convincing evidence. Even had Mother challenged these grounds she could not prevail.

Although Mother does not raise an issue concerning the trial court’s finding that termination of her parental rights was in the best interest of the Arteria H., before a court in this State can terminate a biological parent’s parental rights, it must find that doing so is in the best interest of the child. See Tenn.Code Ann. § 36-1-113(c)(2). Consequently, we will review the trial court’s findings on the issue of best interest.

Tennessee Code Annotated § 36-1-113(i) provides a list of factors the trial court is to consider when determining if termination is in the child’s best interest. However, this list is not exhaustive, and the statute does not require the court to find the existence of every factor before concluding that termination is in a child’s best interest. State v. T.S.W., No. M2001-01735-COA-R3-JV, 2002 WL 970434 (Tenn.Ct.App. May 10, 2002). The best interest of a child must be determined from the child’s perspective and not the parents. White v. Moody, 171 S.W.3d 187, 194 (Tenn.Ct.App.2004).

We have reviewed the record and we conclude that there is clear and convincing evidence in record to support the trial court’s finding that termination of Mother’s parental rights is in the best interest of Arteria H. The record shows that Arte-ria H. has been in the custody of the state since she was four months old. Accordingly, Mother had over two years to make adjustments to her life in order to make it safe and in the best interest of Arteria H. to return home. Unfortunately, despite the efforts of DCS, Mother has failed to make adjustments so that she might provide Arteria H. with a safe, secure and stable environment at any point in the near future. It is not in Arteria H.’s best interest to allow her to linger in the uncertain status of foster child, where she has remained since she was four months old, when Mother has been provided adequate time to make necessary adjustments and has failed to do so. Also, testimony at trial indicated that a change in the caretakers of Arteria H. is likely to have a negative effect on the child. We recognize that some of Mother’s visitation may have been thwarted by DCS and have considered this in making our determination. However, while Arteria H. was in custody there were two periods of time when Mother did not attempt to contact Arteria H. or DCS over the course of several months. Despite any possible wrongful action of a DCS worker, Mother should have taken the initiative to maintain a relationship with Arteria H. and work to adjust her circumstances to be able to bring Arteria H. back into her home. Unfortunately Mother did not choose to do so. Accordingly, we affirm the finding of the trial court that termination of Mother’s parental rights is in the best interest of Arteria H.

Father

The trial court terminated Father’s parental rights based upon two statutory grounds: (1) pursuant to TenmCode Ann. § 36 — 1—113(g)(1) and a finding that Father was incarcerated at the time of the institution of this action and that he exhibited wanton disregard for the welfare of Arteria H. for the four months immediately preceding his incarceration; and (2) pursuant to TenmCode Ann. § 36-1-113(g)(6) as Father was sentenced to eleven years incarceration and Arteria H. was under the age of eight years at the time he was sentenced. Father does not appeal the finding that grounds for termination of his parental rights exist or that termination of his parental rights is in Arteria H.’s best interest. Instead, Father asserts that his parental rights should not be terminated because DCS did not make reasonable efforts to place Arteria H. with a relative and because of ineffective assistance of counsel in the Juvenile Court proceeding.

After reviewing his brief, it is clear to this Court that all of Father’s allegations of error involve the alleged lack of reasonable efforts on the part of DCS or errors which occurred during the dependency and neglect proceeding. However, the two grounds upon which Father’s parental rights were terminated, do not require reasonable efforts on the part of DCS or require a previous finding of dependency and neglect. See e.g., In re C.A.H., No. M2009-00769-COA-R3-PT, 2009 WL 5064953, at *4 (Tenn.Ct.App. Dec. 22, 2009)(holding that DCS did not have to provide reasonable efforts when petitioning to terminate parental rights based upon the ground of abandonment); In re G.L.T., No. M2008-00582-COA-R3-PT, 2008 WL 3914922, n. 6 (Tenn.Ct.App. Aug. 25, 2008)(affirming the termination of a father’s parental rights under TenmCode Ann. § 36 — 1—113(g)(6) despite Father’s assertion that his rights were violated because DCS did not involve him in the dependency and neglect proceeding or make reasonable efforts to assist him in complying with the permanency plan). Because the grounds did not require such action, any error would not affect the termination of Father’s parental rights.

Moreover, this Court has previously held that any deprivation of due process based upon the failure to appoint counsel during a dependency and neglect proceeding is remedied if the appellant is afforded full protection at the termination proceeding. In re S.Y., 121 S.W.3d 358, 364 (Tenn.Ct.App.2003). Father was represented by appointed counsel during the Juvenile Court proceeding, the termination proceeding and this appeal, and only asserts that his counsel was ineffective during the Juvenile Court proceeding. Father has not raised any issue with the effectiveness of his counsel during the termination proceeding. Even had Father’s counsel been ineffective during the dependency and neglect proceeding, any possible due process violation based on ineffectiveness of counsel, was remedied during the termination proceeding.

Further, this Court has previously reviewed the argument that parental rights should not be terminated based upon DCS’ failure to place the child with a relative pursuant to Tenn.Code Ann. § 37-2-403 and consistently held that the failure to place the child with a relative is not a basis to defeat termination. In re Deashon A.C., No. E2009-01633-COA-R3-PT, 2010 WL 1241555, at *8 (Tenn.Ct.App. March 31, 2010); In re No. W2009-00782-COA-R3-PT, 2009 WL 3570901, at *9 (Tenn.Ct.App. Nov. 2, 2009); In re K.L.D.R., No. M2008-00897-COA-R3-PT, 2009 WL 1138130, at *8 (Tenn.Ct.App. April 27, 2009). In so holding, this Court has explained that Tenn.Code Ann. § 37-2-403 is the statute that governs permanency plans for children in foster care and only requires DCS to consider relatives when it is in the child’s best interest. Id. Consequently, we find no merit to Father’s arguments.

While Father has not appealed the trial court’s finding that statutory grounds for termination of his parental rights exist nor the trial court’s finding that it is in Arteria H.’s best interest to terminate Father’s parental rights, because of the importance of these issues, we have considered them. After reviewing the record, we find that there is clear and convincing evidence to support the trial court’s finding that grounds to terminate Father’s parental rights exist. Also, we find that the record contains clear and convincing evidence to support the determination that termination of Father’s parental rights is in Arteria H.’s best interest. Therefore, we affirm the trial court’s termination of Father’s parental rights.

Conclusion

For the foregoing reasons, we affirm the trial court’s termination of both Mother and Father’s parental rights. Costs of this appeal are taxed equally to the Appellants, Berthenia H. And Arterio H., for which execution may issue if necessary.

      . Mother and Father have never been married.

      . It is not clear from the record why Mother was picking the child up at the hospital. Foster Mother testified that she had custody of Arteria H. since January 2007.

      .We note that Father was not named as a party to the dependency and neglect proceeding in Juvenile Court. Although, the record does indicate that Father was represented by appointed counsel during the Juvenile Court proceedings. Father has been incarcerated since January 2007.

      .Tenn.Code Ann. § 36-1-113(g)(1) provides for termination if ‘‘[a]bandonment by the parent or guardian, as defined in § 36-1-102, has occurred....” Abandonment, in pertinent part, is defined in Tenn.Code Ann. § 36-1-102 as:
      (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;

      (iv) A parent or guardian is incarcerated at the time of the institution of an action or proceeding to declare a child to be an abandoned child, or the parent or guardian has been incarcerated during all or part of the four (4) months immediately preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or has willfully failed to make reasonable payments toward the support of the child for four (4) consecutive months immediately preceding such parent's or guardian's incarceration, or the parent or guardian has engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the child; or....

      . Tenn.Code Ann. § 36-1-113(g)(2) provides for termination when "[tjhere 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...."

      . Tenn.Code Ann. § 36-1-113(g)(3) provides for termination when:
      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;

      . Tenn.Code Ann. § 36-1-113(g)(6) provides for termination when "[tjhe parent has been confined in a correctional or detention facility of any type, by order of the court as a result of a criminal act, under a sentence of ten (10) or more years, and the child is under eight (8) years of age at the time the sentence is entered by the court....”

      . We note that both Mother and Father are represented by different counsel on appeal than they were in the trial court.

      . Ms. Boyle is a DCS case worker based out of Fayette County. From the record, it appears that she was assigned to the case to avoid a possible conflict of interest with a DCS worker in Shelby County as the mother of A.H's foster mother is a member of the County Commission of Shelby County and also after allegations arose that Shelby County DCS workers had not followed proper procedures.

      . It has been previously held in numerous cases, that Tenn.Code Ann. § 37-1-166, is applicable to parental termination cases. See e.g. In Re C.M.M. & S.D.M., No. M2003-01122-COA-R3-PT, 2004 WL 438326, at *8 (Tenn.Ct.App. March 9, 2004); see also In re Giorgianna H., 205 S.W.3d 508, 518 (Tenn.Ct.App.2006). Tenn.Code Ann. §36-1-113 is the statute which provides the grounds for termination of parental rights. Tenn.Code. Ann. § 37-1-166 is the statute dealing with the efforts which must be made prior to a court entering orders committing or retaining a child within the custody of DCS. Both statutes address the obligations of DCS when separating children from their parents. By terminating parental rights, the court is committing the child to the custody of DCS. Because both statutes address the same subject, they should be construed together, in pari materia. Frye v. Blue Ridge Neuroscience Ctr., 70 S.W.3d 710, 716 (Tenn.2002). Therefore, the “reasonable efforts” required by Tenn. Code. Ann. § 37-1-166 are the same "reasonable efforts” required by Tenn.Code Ann. § 36-1-113. In further support of this holding, we note that both statutes refer to the other. For a more detailed discussion of this analysis, see In Re C.M.M. & S.D.M., No. M2003-01122-COA-R3-PT, 2004 WL 438326, at *8 (Tenn.Ct.App. March 9, 2004).

      . Tenn.Code Ann. § 36-1-113(i) provides:
      (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.

      . For purposes of this appeal we do not make a determination as to whether there is such a claim as ineffective assistance of counsel at a dependency and neglect proceeding. We merely assume so for purposes of this appeal.


source: Caselaw Access Project

author: DAVID H. WELLES, J.,

license: Public Domain

text:
    STATE of Tennessee v. Jody D. BEARDEN.
    Court of Criminal Appeals of Tennessee, at Nashville.
    Oct. 20, 2009 Session.
    Feb. 11, 2010.

      Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney General; Dan. M. Also-brooks, District Attorney General; and Lisa Donegan, Assistant District Attorney General, for the appellant, State of Tennessee.
    William B. “Jake” Lockert, III, Public Defender (on appeal), and Haylee Bradley, Assistant Public Defender (at trial), Ash-land City, Tennessee, for the appellee, Jody D. Bearden.
   OPINION

DAVID H. WELLES, J.,

delivered the opinion of the court,

in which JERRY L. SMITH and THOMAS T. WOODALL, JJ., joined.

The Defendant, Jody D. Bearden, was charged with Class B felony sexual exploitation of a minor. See Tenn.Code Ann. § 39-17-1003. He filed a motion to suppress images of child pornography found by police on his computer on the grounds that the affidavit supporting the issuance of the search warrant did not establish probable cause to search the computer. The Humphreys County Circuit Court granted his motion. The State now appeals that grant. After our review, we affirm the judgment of the trial court.

Factual Background

We glean the facts underlying this appeal from the affidavit in support of the search warrant at issue and from a transcript of the hearing on the Defendant’s motion to suppress. The May 31, 2007 affidavit was sworn by Agent Jimmy Mann of the Twenty-Third Judicial District Drug Task Force. In the affidavit, Agent Mann stated that he had probable cause to believe that the Defendant possessed evidence of a violation of Tennessee Code Annotated section 39-17-417, which outlines the criminal offenses and penalties for manufacture, delivery, sale, and possession of controlled substances.

Agent Mann supported his affidavit with the following facts: earlier on the day he signed the affidavit, Agent Mann had gone to the Defendant’s residence, one half of a duplex, in an attempt to make contact with the Defendant. Agent Mann knocked on the front door, but received no answer. Seeing a light on, Agent Mann proceeded to the side door. While approaching that door, he noticed a spray of water coming out of the residence’s crawl space access door. Agent Mann then walked to the other half of the duplex, spoke to the residents thereof, and asked them to contact the landlord, Greg Salley.

Mr. Salley arrived shortly thereafter. He asked Agent Mann to enter the Defendant’s residence “for precautionary reasons.” Upon entering, Agent Mann immediately “recognized the odor of marijuana.” Agent Mann partially opened a bedroom door and “observed marijuana plants growing in a closet.” He then left the residence to apply for a search warrant. The affidavit requested a search warrant authorizing a search for:

A) Marijuana and/or paraphernalia commonly used in its distribution, including, but not limited to scales, baggies, diluting materials and other materials associated with the packaging of same.
B) United States Currency and/or other items of value....
C) Records, written or otherwise recorded, which may be identified as pertaining in some manner to drug trafficking, including, but not limited to prices of drugs, amounts owed, amounts collected, amounts paid out or names and/or phone numbers of customers, suppliers or other criminal associates.

At 10:51 p.m. on May 31, Agent Mann received a search warrant authorizing, in relevant part, a search of the Defendant’s residence for:

Schedule VI narcotics, [mjarijuana, and [ajll controlled substances, controlled substances paraphernalia, scales and mixing devices, packaging materials, any equipment, devices, records, computers and computer storage discs, to include the seizure of computers to retrieve such records ... all financial records pertaining to the disposition of the proceeds of the violation of the criminal laws specified above, and all of the above records, whether stored on paper, on magnetic media such as tape, cassette, disk, diskette or on memory storage devices such as optical disks, programmable instruments such as telephones, voice mail, answering machines, electronic address books, calculators or other storage media. ...

Neither the State nor the Defendant presented proof at the suppression hearing, but the Defendant’s computer was apparently seized and examined for evidence of drug trafficking. During the examination of the computer, images of child pornography were found, leading to the Defendant’s indictment for sexual exploitation of a minor. After listening to argument at the suppression hearing, the trial court granted the Defendant’s motion to suppress the images found on the computer, noting that

the only evidence of drug trafficking in this search warrant is [an] allegation that there were plants there. There is evidence that there was odor of marijuana. The Court just believes you’ve got to have something either directly or at least circumstantially pointing to the fact that there was drug trafficking involved. For example if it said there were ten plants or several plants, then that would at least be circumstantial evidence that drug trafficking was going on. I don’t think that you get there with this warrant. So I’m going to suppress the computer.

The State now appeals.

Analysis

“[A] trial court’s findings of fact at a suppression hearing will be upheld unless the evidence preponderates otherwise.” State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996). “Questions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.” Id. “We afford to the party prevailing in the trial court the strongest legitimate view of the evidence and all reasonable and legitimate inferences that may be drawn from that evidence.” State v. Keith, 978 S.W.2d 861, 864 (Tenn.1998). However, we review de novo a trial court’s application of law to the facts. See State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.1997). Because the trial court heard no proof at the suppression hearing, it made no findings of fact apart from accepting the facts contained in Agent Mann’s affidavit.

I. Probable Cause to Search the Defendant’s Computer

The State first contends that the trial court erred in holding that Agent Mann’s affidavit lacked facts sufficient to justify a search of the Defendant’s computer. The Fourth Amendment to the United States Constitution provides that

[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article 1, section 7 of the Tennessee Constitution provides that

the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures; and that general warrants, whereby an officer may be commanded to search suspected places without evidence of the fact committed, or to seize any person or persons not named, whose offences are not particularly described and supported by evidence, are dangerous to liberty and ought not to be granted.

The United States Supreme Court has explained that, in making a probable cause determination, a warrant-issuing judge is to examine “the totality of the circumstances” and “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). As to our standard of review, “the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed.” Id. (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)).

The State argues that the trial court overlooked the fact that Agent Mann saw marijuana plants, rather than “a couple of joints or baggies of marijuana that could more likely be associated with the [Defendants personal use.” We disagree; the trial court specifically mentioned that Agent Mann saw “plants” but that he failed to note how many. The State also asserts that “Agent Mann specifically noted in the affidavit that he suspected the [D]efendant may be involved in drug trafficking.” Again, we disagree; although Agent Mann stated that he was aware of certain facts about drug traffickers’ tendency to keep business records and cash on hand, he did not state that his observations and law enforcement experience led him to believe that drug trafficking was taking place at the Defendant’s residence.

Even if he had, however, we agree with the trial court that the facts included in Agent Mann’s affidavit were insufficient to establish probable cause to search the Defendant’s computer. Agent Mann’s affidavit merely states that he “recognized the odor of marijuana” and “observed marijuana plants growing in a closet.” He did not specify how many plants he observed, nor did he specify their size. He also did not include any other facts supporting a belief that the Defendant was engaged in drug trafficking. In our view, Agent Mann’s affidavit does not provide a substantial basis for the belief that the Defendant was trafficking in marijuana, as opposed to growing it in small quantities for his personal use. The trial court did not err in holding that the issuing judge lacked a substantial basis for finding a fair probability of drug trafficking evidence being present on the Defendant’s computer.

II. Good Faith Exception

The State additionally argues that, even if Agent Mann’s search warrant for the Defendant’s computer was issued in error, the trial court should have denied the Defendant’s motion to suppress under the “good faith exception” to application of the exclusionary rule. The United States Supreme Court has held that “in the absence of an allegation that the magistrate abandoned his detached and neutral role, suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.” United States v. Leon, 468 U.S. 897, 926, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).

Tennessee, however, has not adopted this “good faith exception.” See State v. Carter, 16 S.W.3d 762, 768 n. 8 (Term. 2000); see also State v. Lonnie Taylor, No. 86-144-III, 1987 WL 25417 at *6-10 (Tenn.Crim.App., Nashville, Dec. 4, 1987) (explaining the history of exclusionary rule application in Tennessee and declining to adopt the Leon exception). This issue is without merit.

Conclusion

Based on the foregoing authorities and reasoning, we affirm the Humphreys County Circuit Court’s grant of the Defendant’s motion to suppress.


author:
JOHNSON, J.,
      KELLER, P.J., KEASLER, J.,

text:
    Corbett K. WEINN, Appellant, v. The STATE of Texas.
    No. PD-0338-09.
    Court of Criminal Appeals of Texas.
    June 30, 2010.

      David Crook, Lubbock, for Appellant.
    Jeffrey S. Ford, Asst. Crim. D.A., Lubbock, Jeffrey L. Van Horn, State’s Attorney, Austin, for State.
   OPINION

JOHNSON, J.,

delivered the opinion of the Court

in which MEYERS, PRICE, WOMACK, HOLCOMB, and COCHRAN, JJ., joined.

After his plea in bar on double-jeopardy grounds was overruled, appellant plead nolo contendere to possession with intent to deliver and guilty to manufacture of methamphetamine, both in amount less than 400 grams, but at least 200 grams. After a punishment trial, a jury assessed punishment at 30 years’ imprisonment for each offense. The trial court ordered the two sentences to run concurrently.

On appeal, appellant contended that his conviction of both manufacturing and possession with intent to deliver violated the Fifth Amendment’s prohibition against double jeopardy. Weinn v. State, 281 S.W.3d 633, 636 (Tex.App.-Anarillo 2009). The court of appeals agreed with appellant and the state (which initially conceded the issue), holding that the two charges punished appellant twice for the same offense. Id. at 642-43. The court of appeals vacated the conviction for manufacturing methamphetamine and affirmed the trial court with respect to the conviction for possession with intent to deliver. Id. at 643. The state appealed the court’s order vacating of the manufacturing conviction.

We granted review of the double-jeopardy issues raised in the state’s petition for discretionary review.

1. Can a defendant be convicted and punished for both manufacture and the subsequent delivery or possession with the intent to deliver of the same quantity of controlled substances, or does Texas Health and Safety Code § 481.112 allow more than one “allowable unit of prosecution,” i.e. one for the manufacture and one for the delivery?
2. Did the court of appeals err in finding that the offenses of manufacturing a controlled substance and possession with intent to deliver a controlled substance are the same for double-jeopardy purposes, even though the separate offenses are meant to punish separate dangers?

We conclude that the legislature intended that manufacture and simultaneous possession with intent to deliver of the same single quantity of controlled substances constitutes a single offense. Punishing appellant twice for the same offense would violate his constitutional rights against double jeopardy. Therefore, we affirm the court of appeals.

Facts

The record reflects that, in response to a complaint about strange smells, sheriffs deputies approached appellant’s property. They detected a strong odor of anhydrous ammonia and observed appellant put a box in the back of his pickup truck. After detaining appellant, the deputies searched the property, the house, the truck, and appellant himself. They discovered evidence of methamphetamine manufacture, including numerous empty blister packs of Sudafed, a microwave containing Sudafed residue, an anhydrous ammonia dump, lithium batteries, muriatic acid, drain cleaner, cans of Heet, 15 cans of starter fluid, a hydrogen-chloride generator, rock salt, and a single plastic jug with 224.96 grams of liquid that contained methamphetamine in one of the late stages of manufacture. They also found a bottle of a cutting agent, a razor blade, plastic baggies, including one that contained methamphetamine residue, and digital portable scales.

The state filed a three-count indictment. The first count, possession with intent to manufacture, was dismissed before trial. The state alleged in count two that appellant knowingly possessed methamphetamine, with intent to deliver. Count three alleged that appellant knowingly manufactured methamphetamine. All counts alleged an aggregate weight less than 400 grams, but at least 200 grams of methamphetamine, making each offense a first-degree felony. Texas Health and Safety Code § 481.112.

Arguments of the Parties

Appellant contends that the legislature intended to create only one allowable unit of prosecution in the circumstances presented here because the statute lists a “continuum” of offenses designed as alternative means of prosecuting a defendant for engaging in the drug-trafficking process. Furthermore, appellant contends that, even under the Blockburger test, appellant’s conviction violates double jeopardy because he engaged in only a single act, specifically manufacture, and that possession was an inevitable result of manufacture, requiring no additional evidence to prove possession. Finally, in the event that legislative intent is unclear, the court should apply the rule of lenity to find in favor of appellant.

The state contends that each offense requires proof of different elements, thus satisfying the Blockburger test. Further, based on the use of the disjunctive, the distinct differences in nature and dangers of manufacturing and delivery offenses, and a legislative history of increasing intolerance for drug crimes, the legislature intended to permit multiple convictions.

Double Jeopardy

The Fifth Amendment’s Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Constitution, Amendment V. It protects an accused against: 1) a second prosecution for the same offense after acquittal; 2) a second prosecution for the same offense after conviction; and 3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). A claim of multiple punishments may be valid if one offense is a lesser-included offense of the other and the same conduct is punished twice or if the same criminal act is punished under two distinct statutes when the legislature intended the conduct to be punished under either statute, but not both. Langs v. State, 183 S.W.3d 680, 685 (Tex.Crim.App.2006).

To determine whether there have been multiple punishments for the same offense, we begin with the “same elements” test from Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). “[W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” Id. The Blockburger test is the starting point in the analysis of a multiple-punishments double-jeopardy claim: Bigon v. State, 252 S.W.3d 360, 370 (Tex.Crim.App.2008). “Under the Blockburger test, two offenses are not the same if one requires proof of an element that the other does not.” Bigon, 252 S.W.3d at 370. The analysis in Blockburger is based upon the face of the statute at issue. Blockburger, 284 U.S. at 304, 52 S.Ct. 180. “But in Texas, when resolving whether two crimes are the same for double-jeopardy purposes, we focus on the elements alleged in the charging instrument.” Bigon, 252 S.W.3d at 370, citing Parrish v. State, 869 S.W.2d 352, 354 (Tex.Crim.App.1994).

In the present case, the two charges presented in the indictment each require proof of elements that the other does not. Clearly, possession with intent to deliver requires the proof of intent to deliver, and a conviction for manufacturing a controlled substance requires proof of manufacture. Thus, under the Blockbur-ger test, there is no double-jeopardy violation.

Legislative Intent

“Application of Blockburger does not serve, however, to negate otherwise clearly expressed legislative intent.” Villanueva v. State, 227 S.W.3d 744, 747 (Tex.Crim.App.2007). In the multiple-punishments context, the Blockburger test is no more than a rule of statutory construction, useful in determining legislative intent as to the scope of punishment where the intent is not otherwise manifested, and does not operate to “trump ‘clearly expressed legislative intent.’ ” Garza v. State, 213 S.W.3d 338, 351-52 (Tex.Crim.App.2007), citing Ex parte Kopecky, 821 S.W.2d 957, 959 (Tex.Crim.App.1992)(quoting Missouri v. Hunter, 459 U.S. 359, 368, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983)).

In Ex parte Ervin v. State, 991 S.W.2d 804 (Tex.Crim.App.1999) we addressed the issue of double-jeopardy and legislative intent, and we “laid out a nonexclusive list of factors to consider when examining if two offenses are the same in the context of multiple punishment.” Bigon v. State, 252 S.W.3d at 371. These factors included: 1) whether offenses are in the same statutory section; 2) whether the offenses are phrased in the alternative; 3) whether the offenses are named similarly; 4) whether the offenses have common punishment ranges; 5) whether the offenses have a common focus; 6) whether the common focus tends to indicate a single instance of conduct; 7) whether the elements that differ between the two offenses can be considered the same under an imputed theory of liability that would result in the offenses being considered the same under Blockburger; and 8) whether there is legislative history containing an articulation of an intent to treat offenses as the same for double-jeopardy purposes. Id. citing Ervin, 991 S.W.2d at 814. We further explained that the common-focus factor includes whether the gravamens of the offenses are the same. Ervin, 991 S.W.2d at 814.

Guerrero v. State

In Guerrero v. State, we applied Block-burger and the Ervin factors while addressing a closely analogous double-jeopardy case. See Guerrero v. State, 305 S.W.3d 546 (Tex.Crim.App.2009). Guerrero was in possession of three batches of methamphetamine in various stages of manufacture. Id. at 547-48. Two of the batches contained greater than 4 grams of methamphetamine. Id. Guerrero was convicted of both manufacturing and possessing with intent to deliver methamphetamine, in quantities greater than 4 grams but less than 200 grams, under Texas Health and Safety Code § 481.112. Id.

Guerrero sought review on double-jeopardy grounds and contended that the legislature did not intend for multiple convictions and punishments for his actions. Id. We issued split opinions. A four-judge plurality held that Guerrero’s conviction for manufacturing and possessing with intent to deliver the same cache of methamphetamine did not violate the Double Jeopardy Clause. Id. at 553-54, 557, 560-61. But a majority, comprised of two concurring judges and three dissenting judges, noted that the legislature did not intend multiple punishments for manufacture and simultaneous possession with intent to deliver with respect to a single quantity of controlled substances. Id. at 563-64, 567 (Cochran, J., concurring; Holcomb, J., dissenting). However, the concurring judges noted that Guerrero had engaged in more than one distinct act by separately producing three distinct batches of methamphetamine. Id. at 561. Two of the batches were of a sufficient amount to sustain separate convictions for manufacturing or possession with intent to deliver at the charged weight. Therefore, the concurrence agreed with the plurality that there was no violation of double jeopardy in that case. Id. “Two distinct acts equal two violations of section 481.112 of the Texas Health and Safety Code, but one act (simultaneous manufacture and possession with intent to deliver) evidenced by one bottle seized at one time equals only one violation of that section.” Id.

The five concurring and dissenting judges relied on our earlier analysis of the same statute in Lopez v. State, 108 S.W.3d 293, 297 (Tex.Crim.App.2003). Id. at 563-64. In Lopez, we noted that manufacturing, possessing with intent to deliver, and delivering were all points along the spectrum of the offense of drug trafficking. Lopez v. State, 108 S.W.3d at 299-300. Further, in light of the fact that the legislature enumerated differing punishments based solely on the quantity of drugs discovered, the gravamen of the statute seems to be on the quantity of drugs as opposed to the type of action taken. Id. Therefore, we concluded that the statute established alternative ways to commit a single offense of “distribution of dangerous drugs in our society” and was designed to allow prosecution regardless of where on the continuum the perpetrator is caught. Id.

Conclusion

The present case is distinguished from Guerrero in that, unlike Guerrero’s indictment for manufacture and possession involving three distinct batches of methamphetamine, this appellant was charged and convicted based on the manufacture and simultaneous possession of a single quantity of methamphetamine. In accordance with our analysis of the statute in Lopez, we hold that the legislature intended that Texas Health and Safety Code § 481.112 establishes alternative means of punishing an offense in the continuum of drug distribution. Manufacturing and possession with intent to deliver both create the singular danger that controlled substances will be distributed to society. Therefore, a single act (simultaneous manufacture and resulting possession with intent to deliver) with respect to a single quantity of controlled substances constitutes a single violation of Texas Health and Safety Code § 481.112.

While one cannot manufacture methamphetamine without simultaneously possessing it, this is not true of delivery of that same single quantity of methamphetamine; one can possess without delivering. We reiterate that our holdings here and in Guerrero do not bar a prosecution for delivery of a controlled substance if a person who manufactures (and thereby possesses) a quantity of a controlled substance later delivers that same quantity to a third party. A later sale of that substance to a third party would be a second distinct act, a separate violation of the statute, and a basis for a second punishment. See Blockburger, 284 U.S. at 301-02, 52 S.Ct. 180.

Appellant’s convictions for both the manufacture and simultaneous possession with intent to deliver of a single container of methamphetamine violated the Double Jeopardy Clause. We affirm the judgment of the court of appeals.

KELLER, P.J., filed a dissenting opinion in which KEASLER, and HERVEY, JJ., joined.

KEASLER, J., filed a dissenting opinion in which KELLER, P.J., and HERVEY, J., joined.

KELLER, P.J.,

filed a dissenting opinion in which KEASLER, and HERVEY, JJ., joined.

The Court relies on Lopez for the proposition that the gravamen of the statute at issue here is “the quantity of drugs” as opposed to “the type of action taken.” The Court bases its holding today on the Lopez “continuum theory,” which says that manufacturing, possessing with intent to deliver, and delivering are “all points along the spectrum of the offense of drug trafficking.” They are all alternative ways to commit a single offense — the offense of “distribution of dangerous drugs in our society,” “regardless of where on the continuum the perpetrator is caught.” As I have said before, the big problem with the continuum theory is that it means that a person who manufactures a controlled substance is free to later sell that substance to a third party without subjecting himself to prosecution for an additional offense.

In order to avoid this irrational outcome, the Court engages in some strange maneuvers. It refers to supposed holdings in this case and in Guerrero that manufacture and delivery of drugs are separate offenses, even though those were not the offenses at issue in either case, and even though Guerrero was a plurality opinion. More importantly, it chops off the end of the Lopez continuum, even though that is the only basis for its holding in this case. If “distribution of dangerous drugs” is not a single offense, as the Court held in Lopez, then not only has the Court overruled that opinion sub silentio, it has lost the footing for its holding today.

I respectfully dissent.

KEASLER, J.,

filed a dissenting opinion in which KELLER, P.J., and HERVEY, J., joined.

The majority incorrectly distinguishes the facts of this case from those in our recent decision in Guerrero v. State. But the facts of Guerrero are identical. In Guerrero, a plurality of us held that Guerrero’s convictions for manufacturing and possessing with intent to deliver the same cache of methamphetamine did not violate the Double Jeopardy Clause. Though Guerrero’s manufacture and possession with intent to deliver were close in time, they “were discrete acts with different impulses” — “one impulse to manufacture and another impulse to possess for the purpose of delivering what has been manufactured.” The same can and should be said here. I would therefore hold that there is no jeopardy violation and reverse the court of appeals’s judgment.

      . Id. at 561. (Cochran, J., joined by Womack, J., concurring)("I concur in the court’s judgment, but I respectfully disagree that a person may be punished for both manufacturing and possessing with intent to deliver the same single cache of methamphetamine at one specific time.”)

      . Id. at 567 (Holcomb, J., joined by Meyers and Johnson, JJ., dissenting)("[T]he Legislature intended that the manufacture of a single quantity of methamphetamine and the simultaneous possession of that methamphetamine with intent to deliver it to someone else would constitute but one violation of § 481.112(a), for which there could be but one conviction and one punishment.”)

      . Lopez v. State, 108 S.W.3d 293 (Tex.Crim. App.2003).

      . Id. at 302 (Keller, P.J., concurring).

      . Guerrero v. State, 305 S.W.3d 546 (Tex.Crim.App.2009).

      . 305 S.W.3d 546 (Tex.Crim.App.2009) (plurality op.).

      . Id. at 553-54, 557, 560-61.

        .Id. at 554.