                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT JACKSON
                               Assigned on Briefs March 21, 2013

                               IN THE MATTER OF: DEON S.

                Direct Appeal from the Juvenile Court for Madison County
                        No. 51-46, 814    Christy R. Little, Judge


                     No. W2012-01950-COA-R3-PT - Filed April 17, 2013


       This is a termination of parental rights case. Mother appeals the trial court’s
termination of her parental rights on several grounds, including abandonment by willful
failure to visit pursuant to Tennessee Code Annotated Sections 36-1-113(g)(1) and 36-1-
102(1)(A)(i). We conclude that the ground of abandonment by willful failure to visit is met
by clear and convincing evidence in the record and that there is also clear and convincing
evidence that termination of Mother’s parental rights is in the child’s best interest. Affirmed
and remanded.


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

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS,
P.J.,W.S., and D AVID R. F ARMER, J., joined.

Daniel P. Bryant, Clarksville, Tennessee, for the appellant, Ashley S.

Robert E. Cooper, Jr., Attorney General and Reporter; Mary Byrd Ferrara, Assistant Attorney
General, for appellee, State of Tennessee, Department of Children’s Services.

Lanis L. Karnes, Jackson, Tennessee, Guardian ad Litem.

                                               OPINION

                                  MEMORANDUM OPINION 1


       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:
                                                                                   (continued...)
                                                I. Background

        Ashley S. (“Mother,” or “Appellant”) and Ractus H. (“Father”)2 are the parents of
Deon, born in April, 2010.3 On January 24, 2011, the State of Tennessee Department of
Children’s Services (“DCS,” or “Appellee”) filed a petition to adjudicate dependency and
neglect and for temporary custody of Deon. In relevant part, the petition states that, on or
about January 19, 2011, the child’s maternal grandmother, Linda P., brought Deon to the
local DCS office. When interviewed, Linda P. stated that she had received a call from a
family friend who told Linda P. that Mother had left Deon with a male friend who is not
related to the child on January 14, 2011. Although Mother indicated to the friend that she
would return within the hour, as of January 19, she had not returned or called. Linda P.
picked Deon up from the man’s home and took him to DCS, stating that she could not care
for the child because of physical, medical and financial reasons. When asked about Mother’s
whereabouts, Linda P. stated that Mother had been incarcerated, but that she thought Mother
was “doing better” since her latest release from jail in December 2010. Linda P. further
stated that Mother had a habit of leaving the child for days at a time. DCS scheduled a Child
and Family Team meeting for later that day. Linda P. stated that she would return to DCS
for that meeting, but failed to do so, even after DCS made contact with her. DCS also
attempted to contact Mother, but these attempts were unsuccessful, as were DCS’s attempts
to locate Mother at local hospitals and jails.

      On January 25, 2011, the Juvenile Court of Madison County entered a protective
custody order, finding that Deon was dependent and neglected, and that he should be
removed to DCS custody. The court found that Mother had a history of drug abuse and


        1
            (...continued)
                    This Court, with the concurrence of all judges participating in the case, may
                    affirm, reverse or modify the actions of the trial court by memorandum
                    opinion when a formal opinion would have no precedential value. When a
                    case is decided by memorandum opinion it shall be designated
                    “MEMORANDUM OPINION”, shall not be published, and shall not be
                    cited or relied on for any reason in any unrelated case.


        2
           Father’s parental rights were terminated in the trial court’s August 1, 2012 order, discussed infra.
Father has not appealed the termination of his parental rights. Because he is not a party to this appeal, we
will limit our discussion only to facts and procedural history relevant to the termination of Mother’s parental
rights.
        3
           It is the policy of this court to use the initials of children and parties involved in juvenile court
actions to protect the privacy of the children involved.

                                                        -2-
prostitution and had been in and out of jail. The court further found that Mother had a
history of leaving the child with various persons for days at a time. A guardian ad litem was
appointed for the child and an attorney was appointed to represent Mother, who was found
to be indigent.

      An adjudicatory hearing was held on March 8, 2011; Mother did not attend, but her
appointed attorney was present. Following that hearing, the court entered an order on March
22, 2011, finding that DCS had shown, by clear and convincing evidence, that Deon is
dependent and neglected, and ordering custody to remain with DCS.

        On April 12, 2012, DCS filed a petition to terminate the parents’ rights.4 As grounds
for termination of Mother’s parental rights, DCS averred: (1) abandonment by willful failure
to visit and willful failure to support pursuant to Tennessee Code Annotated Sections 36-1-
113(g)(1) and 36-1-102(1)(A)(i); (2) abandonment by failure to establish a suitable home
pursuant to Tennessee Code Annotated Sections 36-1-113(g)(1) and 36-1-102(1)(A)(ii); (3)
abandonment by incarcerated parent pursuant to Tennessee Code Annotated Sections 36-1-
113(g)(1) and 36-1-102(1)(A)(iv); and (4) persistence of conditions pursuant to Tennessee
Code Annotated Section 36-1-113(g)(3). DCS also averred that termination of Mother’s
parental rights was in Deon’s best interest. DCS further asserted that, prior to filing the
petition, it had made reasonable efforts to assist Mother in the goal of reunification.

       The record clearly reveals that Mother has failed to engage in any meaningful way in
these proceedings. Despite notice from DCS, she did not participate in the formation or
evaluation of any of the child’s permanency plans. Furthermore, she failed to appear at the
dependency and neglect, adjudicatory, or final hearing in this case.

       Because of Mother’s lack of participation, subsequent to the filing of its petition to
terminate parental rights, DCS moved the court to be relieved of its obligation to provide
reasonable efforts toward reunification. By Order of June 12, 2012, the trial court found, by
clear and convincing evidence, that:

              [DCS] has made and is making reasonable efforts in achieving
              the child’s permanency goal of adoption by providing the
              services as listed in the child’s permanency plans including but
              not limited to referring Deon [] for regular medical assessments



       4
         Prior to DCS filing its petition, on January 19, 2012, the guardian ad litem filed a
petition to terminate parental rights. Both the DCS petition and the guardian ad litem’s
petition rely upon the same grounds for termination.

                                             -3-
              and any follow-up treatment; providing assistance with Deon’s
              life story book; continuing the legal process to terminate
              parental rights so Deon will be free for adoption; and by
              diligently searching for an appropriate adoptive home for Deon.

                      The Court finds that [DCS’s] motion to be relieved of
              making reasonable efforts toward reunification is well taken and
              is therefore granted based upon the fact and reasoning contained
              therein.

      A hearing on the petition to terminate parental rights was held on July 10 and July 17,
2012. Again, Mother failed to appear, but her attorney was present. By order of August 1,
2012, the trial court terminated Mother’s parental rights to Deon. The trial based the
termination of Mother’s parental rights on the four grounds asserted in DCS’s petition.
Concerning the first ground for termination of parental rights, abandonment by failure to
support or visit, the court made the following, relevant findings:

              27. DCS made reasonable efforts to assist [Mother] in visiting
              the child[] by making referrals for supervised visitation.

              *                                 *                          *

              29. [Mother] has made no attempts to visit Deon [] since he
              entered custody on January 19, 2011.

              30. The Court finds by clear and convincing evidence the
              [Mother] . . . [has] abandoned Deon [] pursuant to T.C.A. §36-1-
              113(g)(1) and T.C.A. §36-1-102(1)(A)(i) in that [Mother] has
              willfully failed to visit (or visits have been tokens merely to
              maintain minimal contact) . . . for more than four (4)
              consecutive months prior to the filing of this Petition . . . .
              [Mother] . . . [has] abandoned Deon [] pursuant to T.C.A. §36-1-
              113(g)(1) and T.C.A. §36-1-102(1)(A)(i); therefore [her]
              parental rights should be terminated.

       The trial court also found that Mother had abandoned Deon by failing to establish a
suitable home. Specifically, the order states that:

              33. For a period of four (4) months following removal, DCS has
              made reasonable efforts to assist [Mother] to establish a suitable

                                             -4-
             home for the child, but [Mother] ha[s] made no reasonable
             efforts to provide a suitable home and [has] demonstrated a lack
             of concern for the child to such a degree that it appears unlikely
             that [Mother] . . . will be able to provide a suitable home for the
             child at an early date.

             *                                     *                        *

             35. [Mother’s] lack of reasonable efforts include failing to
             secure and maintain a stable home environment, failing to
             remain arrest free, failing to maintain regular contact with the
             case manager, failing to visit and support the child and failing
             to participate in Child and Family Team Meetings.

             36. The Court finds by clear and convincing evidence,
             Respondent[] . . . [Mother] [has] abandoned Deon [] pursuant to
             T.C.A. §36-1-113(g)(1) and T.C.A. §36-1-102(1)(A)(ii), and
             therefore, [her] parental rights should be terminated.

      As a third ground for termination of Mother’s parental rights, the trial court found
abandonment by an incarcerated parent. Specifically:

             37. The Court finds, the Respondent, [Mother], pled guilty to
             prostitution on November 10, 2011. She was sentenced to six
             (6) months imprisonment, 0 days to serve. The conditions of her
             sentence were to complete A&D assessment and follow any
             treatment recommended therefrom and submit to an HIV test.
             [Mother] was placed on probation but violated the terms of her
             probation [in] March 2012. She was ordered to complete a
             long-term treatment program.

             *                                *                         *

             39. [Mother] . . . willfully failed to support said child for four
             (4) months immediately preceding [her] most recent
             incarceration[].

             *                                     *                        *

             44. The Respondent, [Mother] . . . , engaged in such criminal

                                             -5-
              conduct prior to [her] original incarceration and [her]
              subsequent violation[] of probation/arrests, which exhibit a
              wanton disregard for the welfare of the child.

              45. The Court finds by clear and convincing evidence, the
              Respondent[], [Mother] . . . [has] abandoned Deon [] pursuant
              to T.C.A. §36-1-113(g)(1) and T.C.A. §36-1-102(1)(A)(iv) and
              therefore [her] parental rights should be terminated.

      Finally, the trial court found that Mother’s parental rights should be terminated on the
ground of persistence of conditions. The order specifically states, in relevant part, that:

              46. The Court finds, the child has been removed from the
              custody of [Mother] for more than six (6) months.

              47. The conditions which led to removal of the child from the
              home of [Mother] still exist and other conditions exist which in
              all probability would cause the child to be subject[ed] to further
              abuse and/or neglect, making it unlikely that the child could be
              returned to [Mother] in the near future.

              48. There is little likelihood that these conditions will be
              remedied at an early date so that the child can be returned to
              [Mother] in the near future.

              *                                     *                         *

              50. The conditions that prevent the child’s return to the
              mother’s home are that she failed to secure and maintain a stable
              home environment, failed to remain arrest free, failed to
              maintain regular contact with the case manager, failed to visit
              and support the child, failed to remain drug free, and failed to
              participate in Child and Family Team Meetings.

              *                                     *                        *

              52. The Court finds by clear and convincing evidence the
              parental rights of [Mother] should be terminated pursuant to
              T.C.A. §36-1-113(g)(3).



                                             -6-
        In addition to the foregoing grounds for termination of Mother’s parental rights, the
trial court also found, by clear and convincing evidence, that termination was in Deon’s best
interest. Concerning best interest, the order states, in pertinent part, that:

              54. The Court finds, [Mother] . . . [has] not made an adjustment
              of circumstances, conduct or conditions as to make it safe and
              in the child’s best interest to be in the home of the parent.

              55. [Mother] . . . [has] failed to effect a lasting adjustment after
              reasonable efforts by available social agencies for such duration
              of time that lasting adjustment does not reasonably appear
              possible.

              56. [Mother] . . . [has] not maintained regular visitation or other
              contact with the child.

              57. A meaningful relationship has not otherwise been
              established between the child and . . . [Mother].

              58. A change of caretaker and physical environment is likely to
              have a negative effect on the child’s emotional, psychological
              and/or medical condition.

              59. The physical environment of the home[] of [Mother] . . . [is]
              unhealthy and/or unsafe for the child.

              60. There is criminal activity in [Mother’s ] home . . . .

              61. The use of alcohol or controlled substances by [Mother] . .
              . render[s] [her] consistently unable to care for the child in a safe
              and stable manner.

              62. [Mother] . . . [has] not paid child support consistently with
              the child support guidelines . . . .

              63. [Mother] . . . [has] not paid a reasonable portion of the
              child’s substitute physical care and maintenance when
              financially able to do so.

              64. The child is placed in a foster home/relative foster home

                                               -7-
                 that wishes to adopt the child.

                 65. The child has established a strong bond with the foster
                 parents.

                                                  II. Issues

        Mother appeals and raises two issues for review:

                 1. Whether any of the grounds for termination of Mother’s
                 parental rights are proved by clear and convincing evidence in
                 the record.

                 2. If so, whether termination of Mother’s parental rights is in
                 the child’s best interest.5

                                        III. Standard of Review

        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 (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 (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. Tenn. Code 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).



        5
           We note that Mother does not specifically raise the issue of best interest in her appellate brief.
However, as discussed, infra, this Court must make an independent inquiry into best interest when reviewing
a trial court’s decision to terminate a parent’s rights. We further note that, although Mother did not raise a
best interest issue, the guardian ad litem’s brief addresses only the best interest analysis and does not discuss
any of the grounds for termination. The absence of any discussion of the grounds for termination is not fatal
to our consideration of the guardian ad litem’s brief, especially in light of the fact that DCS’s appellate brief
thoroughly discusses the grounds for termination as well as the trial court’s finding that termination of
Mother’s rights is in Deon’s best interest.

                                                      -8-
        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. Consequently, both the grounds for
termination and the best interest inquiry must be established by clear and convincing
evidence. Tenn. Code 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 as set forth in Tennessee Rule
of Appellate Procedure 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).

               IV. Grounds for Termination of Mother's Parental Rights

        As set out above, the trial court found four grounds for terminating Mother's parental
rights. Only one ground must be proved by clear and convincing evidence to justify
termination of parental rights. Tenn. Code Ann. § 36-1-113(c).

       The first ground asserted for termination of Mother’s parental rights is abandonment
pursuant to Tennessee Code Annotated Section 36-1-113(g)(1). Tennessee Code Annotated
Section 36-1-102(1)(A)(i) defines “abandonment,” in relevant part, as follows:

               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

                                               -9-
                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; . . . .

      Willful failure to visit means “the willful failure, for a period of four (4) consecutive
months, to visit or engage in more than token visitation.” Tenn. Code Ann. § 36-1-
102(1)(E).6 As defined in Tennessee Code Annotated Section 36-1-102(1)(A)(i), supra, the
four month time period for the ground of willful failure to visit is the four months
immediately preceding the filing of the petition to terminate parental rights. In this case,
DCS filed its petition on April 12, 2012.

         The decision to pursue a termination of parental rights on the grounds of
abandonment, persistence of conditions and/or substantial noncompliance generally invokes
DCS's statutory duty to make reasonable efforts to facilitate the safe return of a child to the
child's home. In re R.L.F., 278 S.W.3d 305, 315 (Tenn. Ct. App. 2008) (citing Tenn. Code
Ann. § 37-1-166(b), -166(a)(2), -166(g)(2)); see also In re Tiffany B., 228 S.W.3d 148, 151,
160 (Tenn. Ct. App. 2007) (vacating a finding of abandonment, substantial noncompliance,
and persistence of conditions for failure to make reasonable efforts). The statutory duty to
make reasonable efforts includes an obligation to exercise “‘reasonable care and diligence
. . . to provide services related to meeting the needs of the child and the family.’” In re
R.L.F., 278 S.W.3d at 316 (emphasis omitted) (citing Tenn. Code Ann. § 37-1-166(g)(1)).
Courts evaluate the reasonableness of DCS's efforts in consideration of the following factors:

                (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 the 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 initial removal of the children, the
                requirements of the permanency plan, and the Department's
                efforts.



        6
         Token visitation means that “visitation, under the circumstances of the individual case, constitutes
nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short duration
as to merely establish minimal or insubstantial contact with the child.” Tenn. Code Ann. § 36-1-102(1)(B).

                                                    -10-
In re Tiffany B., 228 S.W.3d at 158–59 (footnote omitted) (citing In re Giorgianna H., 205
S.W.3d 508, 519 (Tenn. Ct. App. 2006)). Courts should decide the reasonableness of DCS's
efforts “on a case-by-case basis in light of the unique facts of the case.” In re Bernard T.,
319 S.W.3d 586, 601 (Tenn. 2010) (citing In re J.C.D., 254 S.W.3d 432, 446 (Tenn. Ct.
App. 2007)). The burden is on DCS to prove clearly and convincingly the reasonableness of
its efforts. In re R.L.F., 278 S.W.3d at 316 (citing In re B.B., No. M2003-01234-COA-R3-
PT, 2004 WL 1283983, at *9 (Tenn. Ct. App. June 9, 2004)).

        The exercise of reasonable efforts is important because “[t]he success of a parent's
remedial efforts generally depends on the Department's assistance and support.” In re
Giorgianna H., 205 S.W.3d at 518 (citations omitted). DCS employees must affirmatively
and reasonably use their education and training to help a parent eliminate the conditions
requiring removal of the children and to meet the responsibilities of the permanency plans
before courts will terminate the parent-child relationship. In re R.L.F., 278 S.W.3d at 316.
DCS's duty to affirmatively assist parents exists even if the parents do not seek assistance.
Id. (citing In re C.M.M., No. M2003-01122-COA-R3-PT, 2004 WL 438326, at *7 (Tenn.
Ct. App. March 9, 2004)).

        The Legislature, however, did not place the burden to reunify parent and child on
DCS's shoulders alone. See State, Dep't of Children's Servs. v. Estes, 284 S.W.3d 790, 801
(Tenn. Ct. App. 2008). Reunification “is a two-way street, and neither law nor policy requires
the Department to accomplish reunification on its own without the assistance of the parents.”
In re Tiffany B., 228 S.W.3d at 159 (citations omitted). “Parents share the responsibility for
addressing the conditions that led to the removal of their children from their custody.” Id.
Once services have been made available, parents must make reasonable efforts to rehabilitate
themselves. Id. The reasonableness of DCS's efforts should be decided on a case-by-case
basis in light of the unique facts of the case. Id.

        As noted above, Mother has failed to either appear or participate in any meaningful
way in this case. Mother’s lack of participation is apparent in the sparsity of the appellate
record. Simply put, the record does not contain the information that we usually find in
parental termination cases, i.e., information concerning a parent’s employment, housing,
living conditions, drug and alcohol history, family history, etc. Because of the conspicuous
lack of evidence, it is difficult to comprehend the basis for the multiplicity of grounds for
termination found by the trial court. This Court has previously held that a parent’s failure
to participate in termination proceedings, resulting in a record “devoid of proof,” is
insufficient to support termination of parental rights without some affirmative evidence
establishing a ground for termination. See In re Zeylon T.S., 2011 WL 5052957, at *9 (Tenn.
Ct. App. 2011). As explained by this Court:



                                             -11-
                 The State’s argument points to the most troubling part of this
                 case, namely, that Mother's utter refusal to engage or cooperate
                 with DCS or participate in the proceedings leaves the record
                 devoid of proof as to Mother's condition, her home, her income,
                 her mental health, or anything else. Of course, the State has the
                 affirmative burden of establishing this ground [i.e., persistence
                 of conditions] by clear and convincing evidence. We are
                 concerned that reversing on this ground would be in essence
                 rewarding Mother’s bad behavior, namely, her refusal to
                 cooperate or participate. The State, however, has provided no
                 authority indicating that a lack of evidence on this ground is
                 sufficient to carry the State’s burden. Therefore, we reluctantly
                 reverse the Juvenile Court’s finding on this ground.

Id. Thus, despite a parent’s refusal to participate in proceedings, resulting in a exiguous
record, the burden remains on the State to affirmatively prove at least one ground for
termination by clear and convincing evidence. Consequently, in parental termination cases
such as this one, the “absence of evidence is not evidence of absence.” 7

        From our review of the record, the evidence unquestionably supports the
establishment of one ground by clear and convincing evidence—abandonment by willful
failure to visit. Based upon DCS’s records, its affidavit of reasonable efforts, and the
testimony, it is clear that DCS not only notified Mother of her right to visit Deon, but DCS
also set specific times for visitation. Mother’s attorney does not dispute that Mother knew
about her right and opportunities to visit. Despite DCS’s attempt to facilitate visitation, the
record indicates that Mother has neither visited Deon, nor made any inquires as to the child’s
whereabouts or welfare since he came into the State’s custody. Accordingly, there is clear
and convincing evidence in the record to support a finding that, despite reasonable efforts on
the part of DCS (and Mother’s attorney), Mother has willfully failed to visit the child in (at
least) the four months preceding the filing of the petition to terminate her parental rights.

       Having determined that clear and convincing evidence exists to support this ground
for termination of Mother’s parental rights, and in light of the sparsity of evidence in this
record, we pretermit discussion of the other grounds found by the trial court.

                                            V. Best Interest

       When at least one ground for termination of parental rights has been established, the

       7
           This quotation is attributable to United States astronomer Carl Sagan.

                                                    -12-
petitioner must then prove, by clear and convincing evidence, that termination of the parent's
rights is in the child's best interest. White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App.
1994). When a parent has been found to be unfit upon establishment of a ground for
termination of parental rights, then the interests of parent and child diverge. In re Audrey S.,
182 S.W.3d 838, 877 (Tenn. Ct. App. 2005). The focus shifts to the child's best interest. Id.
at 877. Because not all parental conduct is irredeemable, Tennessee's termination of parental
rights statutes recognize the possibility that terminating an unfit parent's parental rights is not
always in the child's best interest. Id. However, when the interests of the parent and the child
conflict, courts are to resolve the conflict in favor of the rights and best interest of the child.
Tenn. Code Ann. § 36-1-101(d). “The child's best interest must be viewed from the child's,
rather than the parent's, perspective.” Moody, 171 S.W.3d at 194.

       The Tennessee Legislature has codified certain factors that courts should consider in
ascertaining the best interest of the child in a termination of parental rights case at Tennessee
Code Annotated Sections 36-1-113(I). These factors include, but are 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;

               *                                      *                           *

               (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

                                               -13-
               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.

Tenn. Code Ann. § 36-1-113(i). This Court has noted that, “this list [of factors] is not
exhaustive, and the statute does not require a trial court to find the existence of each
enumerated factor before it may conclude that terminating a parent's rights is in the best
interest of a child.” In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Depending
on the circumstances of an individual case, the consideration of a single factor or other facts
outside the enumerated, statutory factors may dictate the outcome of the best interest
analysis. In re Audrey S., 182 S.W.3d at 877.

       The trial court made specific findings concerning the child's best interest. From our
review of the entire record, we conclude that clear and convincing evidence exists to support
the majority of these findings. As discussed above, although given ample opportunity,
Mother has failed to visit the child. There is no evidence that Mother and Deon have any
meaningful relationship; there is, however, evidence in the record to suggest that Deon has
bonded with his foster family, and they with him. The foster family has indicated a desire
to adopt Deon. Mother’s lack of participation in these proceedings, her failure to visit, and
her general lack of concern for the child is proof of her inability and lack of desire to parent
Deon. Furthermore, Mother’s failure to participate in this case has resulted in a dearth of
evidence concerning Mother’s housing, current employment status, and arrest record.
Accordingly, it would not be in the child’s best interest to delay his integration into a safe and
stable environment in the hope that Mother will improve her condition and undertake her
parental responsibilities. To do so would be nothing more than speculation on the part of the
Court. From the record as it exists, we conclude that there is sufficient evidence to support
a finding that termination of Mother’s parental rights is in Deon’s best interest.

                                       VI. Conclusion

       For the foregoing reasons, we affirm the order of the trial court, terminating Mother’s
parental rights on the ground of abandonment by willful failure to visit. The case is
remanded for further proceedings as may be necessary and are consistent with this opinion.
Costs of the appeal are assessed against the Mother. Because Mother is proceeding as a
pauper in this appeal, execution may issue for costs if necessary.

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       J. STEVEN STAFFORD, JUDGE




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