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State9/25/2001
r consecutive months prior to the filing of the DCS Petition to Terminate. See Tenn. Code Ann. § 36-1-102(1)(E).
The Juvenile Court, in making this determination, used the two statutory definitions of the term "abandonment" found at Tenn. Code Ann. §§ 36-1-102(1)(D) and (1)(E), willful failure to support and willful failure to visit. The Supreme Court, however, in In re Swanson, 2 S.W.3d 180 (Tenn. 1999), held that the "willful failure to support" definition of abandonment was unconstitutional because it created an "irrebuttable presumption that the failure to provide monetary support for the four months preceding the petition to terminate parental rights constitutes abandonment, irrespective of whether that failure was intentional . . . ." Id. at 188. The Court further held that " ntil otherwise amended by our legislature, the definition of abandonment that was in effect under prior law shall be applied." Id. at 189. Thereafter, this Court, citing In re Swanson, used the prior statutory law from 1994 for both of the above definitions of the term "abandonment." In re Adoption of Copeland, 43 S.W.3d 483, 488 (Tenn. Ct. App. 2000).
Both the In re Swanson and In re Adoption of Copeland decisions were issued prior to the entry of the Final Decree in this matter. Because the Juvenile Court applied an unconstitutional definition of "abandonment" as one of the grounds for terminating Mother's and Father's parental rights, we vacate this portion of the Final Decree. We need not remand this case to the Juvenile Court for a determination utilizing the definition of "abandonment" under prior law of whether the parents abandoned the Children because we have affirmed the Juvenile Court's judgment that other statutory grounds for termination are met under Tenn. Code Ann. §§ 36-1-113 (g)(2) and (g)(3).
Having affirmed that two of the three statutory grounds for termination were proven by clear and convincing evidence, we next address Father's issue regarding whether the Juvenile Court erred in holding that the termination of his parental rights is in the best interests of the Children. Tenn. Code Ann. § 36-1-113(i) describes the standard for determining whether termination is in the best interests of the child in such cases:
(i) In determining whether termination of parental or guardianship rights is in the best interest of the child pursuant to this part, the court shall consider, but is not limited to, the following:
(1) Whether the parent or guardian has made such an adjustment of circumstance, conduct, or conditions as to make it safe and in the child's best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting adjustment after reasonable efforts by available social services agencies for such duration of time that lasting adjustment does not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or other contact with the child;
(4) Whether a meaningful relationship has otherwise been established between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to have on the child's emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent or guardian, has shown brutality, physical, sexual, emotional or psychological abuse, or neglect toward the child, or another child or adult in the family or household;
(7) Whether the physical environment of the parent's or guardian's home is healthy and safe, whether there is criminal activity in the home, or whether t
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