                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                             Assigned on Briefs November 1, 2016

                              IN RE LA’TRIANNA W., ET AL.

                      Appeal from the Juvenile Court for Knox County
                           No. 93877 Timothy E. Irwin, Judge
                         ___________________________________

              No. E2016-01379-COA-R3-PT-FILED-DECEMBER 15, 2016
                       ___________________________________


This is a termination of parental rights case. Appellant/Mother appeals the trial court’s
termination of her parental rights to two minor children on the ground of mental
incompetence and on its finding that termination of Appellant’s parental rights is in the
children’s best interests. Discerning no error, we affirm.

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

KENNY ARMSTRONG, J., delivered the opinion of the court, in which ANDY D. BENNETT
and THOMAS R. FRIERSON, II, JJ., joined.

Ben H. Houston, II, Knoxville, Tennessee, for the appellant, La’Treese W.

Herbert H. Slatery, III, Attorney General and Reporter, and M. Cameron Himes,
Assistant Attorney General, for the appellee, Tennessee Department of Children’s
Services.

                                                OPINION

                                             I. Background

      This case involves two minor children, La’Trianna W. (born May 2012) and
La’Skylar W. (born June 2015).1 Both children were born out of wedlock to La’Treese
W. (“Mother” or “Appellant”). The Tennessee Department of Children’s Services
(“DCS” or “Appellee”) became involved with this family in August 2013, when it


        1
          In cases involving minor children, it is the policy of this Court to redact the parties’ names so as
to protect their identities.
received a referral that La’Trianna had been seen at a local hospital.2 The child was
reported to be malnourished and dirty. Shortly thereafter, DCS placed services in the
home. However, in December of 2013, DCS received a second report of harm, alleging
that Mother had intellectual delays and was unable to properly care for the child. When
DCS visited the home in December of 2013, La’Trianna wore only a diaper, and Mother
failed to properly dress the child after being prompted by the DCS case manager. The
case manager noted that the family was “basically living in one room with an electric
skillet, a griddle and a fryer within reach of the child.” DCS made arrangements for
additional in-home services to assist Mother.

        On March 20, 2014, DCS filed a petition in the Juvenile Court for Knox County
(“trial court”) to remove La’Trianna from Mother’s home. The trial court removed
La’Trianna to protective custody on the same day. On June 16, 2014, the trial court
entered an agreed order adjudicating La’Trianna as a dependent and neglected child
based on environmental neglect, lack of supervision, domestic violence, and mental
health issues of the parent.

       After La’Trianna was removed from her custody, Mother lived with several men.
Mother told the DCS case manager, Leaha Burke, that she frequently met men at the bus
station or the public library, moved them into her apartment, and engaged in sexual
relationships with them. At DCS’s behest, Mother also completed a psychological
evaluation. The intake form notes that Mother appeared inappropriately dressed and
smelling of body odor. During the evaluation, Mother blamed her boyfriends or the lies
of the person(s) who reported her to DCS for the child’s removal. Mother’s IQ was
determined to be 66, which indicates that she is functioning within a mentally challenged
range of intelligence. The evaluation noted that Mother is likely to struggle with the
basic tasks of daily living and will need continued support especially when dealing with
the complicated challenges of raising a child.

       In the Fall of 2014, Mother became pregnant with La’Skylar, who was born in
June of 2015. Mother told Ms. Burke that she met La’Skylar’s father on the street near
the public library and that the couple had intercourse in a public park that day. After
La’Trianna was removed from her custody, Mother attended vocational counseling;
however, she stopped attending during her pregnancy with La’Skylar. Mother also
completed a parenting assessment with a licensed professional counselor. The
assessment concluded that Mother “did not have the ability to be attuned to, anticipate,
acknowledge and appropriately meet the complex and demanding needs of parenting a
child.” The counselor noted that Mother makes decision in the interests of her own

       2
          At that time, Mother was living with La’Trianna’s biological father. His parental rights were
terminated by separate order entered on September 22, 2015, and he has filed a separate appeal to this
Court. See In re La’Trianna W., No. E2016-01322-COA-R3-PT. Father’s appeal does not bear on our
adjudication of this case.
                                                 -2-
emotional and physical needs, which often puts the children at risk.

       During Mother’s pregnancy with La’Skylar, Mother frequently moved residences.
Mother would stay at her own apartment until the utilities were turned off for
nonpayment, then move to her grandmother’s house. At her grandmother’s house,
Mother fought with her sister and left her grandmother’s house to live with La’Trianna’s
father, who has a history of domestic violence against Mother. Eventually, Mother
returned to live in her apartment. At her apartment, Mother continued to move men into
her residence and engage in sexual relationships with them. These paramours included a
man whom Mother met at a bus station, a man whom Mother met on a social media
website, and a man who followed Mother home and began bringing stolen property into
her apartment. Mother also allowed a woman, who was attempting to leave a violent
relationship involving illegal drugs, to live in her apartment. After Mother gave birth to
La’Skylar in June of 2015, she left the hospital to live with her grandmother.

        DCS provided Mother with therapeutic visitation with La’Trianna; however, the
record indicates that Mother struggled to develop a relationship with the child. Renee
Stegall, a therapist who supervised the interaction between Mother and the children,
stated that Mother required frequent prompting concerning proper parenting skills, but
still experienced problems “remaining engaged with [La’Trianna], not understanding the
age appropriate limitation that La’Trianna had during visits, [and] expect[ing] her to do
more than she was able to do.” Ms. Stegall testified that she would not recommend that
Mother have unsupervised parenting time with La’Trianna. When La’Skylar was born,
Mother’s interactions with La’Trianna worsened. Mother focused on the younger child
and had to be prompted to interact with La’Trianna. Mother could not remember or
retain any of the information she received through the visitation. Caseworker, Leigh
Anne Goldstine, who conducted the visits, opined that, without a structured environment,
Mother could not care for the children on her own.3 Ms. Goldstine also was concerned
by the fact that Mother made dangerous decisions in moving strangers into her residence
and that Mother failed to understand that these decisions placed Mother at risk of harm
and endangered the children.

       On March 3, 2015, DCS filed a petition to terminate Mother’s parental rights to
La’Trianna. On June 17, 2015, DCS filed a second petition to terminate Mother’s
parental rights to La’Skylar. As grounds, for both petitions, DCS averred that Mother
was incompetent to care for the children and that the conditions that led to the children’s
removal from Mother’s home still persisted despite DCS’s reasonable efforts to help her.
The petitions to terminate Mother’s parental rights to La’Trianna and La’Skylar were
consolidated and heard by the trial court on July 23, 2015.

       3
         There is dispute in the record as to the proper spelling of Ms. Goldstine’s name. For
consistency and clarity, we will use the spelling set out in the trial court’s order and Ms.
Goldstine’s signature, “Leigh Anne Goldstine.”
                                            -3-
       On August 17, 2015, before the trial court entered an order on the hearing, Mother
filed two separate notices of appeal (discussed infra) to the Circuit Court of Knox
County. After the appeal was filed in the circuit court, the trial court entered an order
terminating Mother’s parental rights to the two children on September 22, 2015. The trial
court found, by clear and convincing evidence, that Mother was

      incompetent to adequately provide for the further care and supervision of
      the children because [Mother’s] mental condition is presently so impaired
      and is so likely to remain impaired that it is unlikely that [Mother] will be
      able to assume the care and responsibility of the children in the near future.

      Following entry of the September 22, 2015 order terminating her parental rights,
Mother took no further action to appeal the trial court’s decision. However, on or about
March 31, 2016, the circuit court entered an order, stating, in relevant part, that:

      [Mother’s] notice of appeal [i.e., the first August 17, 2015 notice of appeal
      to the circuit court] indicated that both appeals, the first concerning the
      finding that the minor children were dependent and neglected and the
      second appealing the termination of the parent’s parental rights, were done
      on the same Notice. Accordingly, [Mother’s] appeal of the termination of
      [her] parental rights was not sent to the Court of Appeals. This Court does
      not have jurisdiction to hear the [termination of parental rights] matter.
      Jurisdiction for th[e] appeal [of the order terminating Mother’s parental
      rights] lies in the Court of Appeals. This error was not caught by the . . .
      Circuit Court Clerk or this Judge until it was recently pointed out by the
      [DCS’s] attorney.

      Based on the foregoing findings, [the circuit court] now Orders as follows:

      1. The . . . appeal of the termination of . . . parental rights shall be
         transferred to the Court of Appeals, having exclusive jurisdiction for the
         determination of that issue.
      2. The . . . Circuit Court Clerk is directed to make a certified copy of the
         Notice of Appeal that was filed in the Juvenile Court and transmitted to
         this Court as part of the Juvenile Court record, and forward it, along with
         a certified copy of this Order, to the Court of Appeals.
      3. That the Order be sent to the Clerk of the Knox County Juvenile Court to
         alert them to the need to prepare and send to the Court of Appeals the
         record for the appeal of the termination of parental rights.
      4. This case is set for trial in [the circuit court] on August 3, 2016, as to the
         issue of Dependent and Neglect.

Mother’s first August 17, 2015 notice of appeal was transmitted to this Court and
                                      -4-
stamped “Received” on July 6, 2016.

                                         II. Issues

       Appellant raises the following issues for review, as stated in her brief:

       1. The trial [c]ourt erred by terminating… the parental rights of the Mother
          for mental incompetence pursuant to Tenn. Code. Ann. § 36-1-
          113(g)(8).

       2. The trial [c]ourt erred by finding that a termination of the Mother’s
          parental rights was in the best interests of her children.

       DCS raises the following additional issue:

       1. This Court lacks jurisdiction because Mother did not timely file her
          notice of appeal.

                                 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 when a compelling interest
exists. 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 children’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).

       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. Accordingly, both the
grounds for termination and that termination of parental rights is in the children’s best
interests 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
                                            -5-
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 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).

                                   IV. Notice of Appeal

       We will first address Appellee’s issue concerning the timeliness of Appellant’s
notice of appeal. DCS argues that Mother’s appeal was not timely filed pursuant to
Tennessee Rule of Appellate Procedure 4(a), which provides, in relevant part: “In an
appeal as of right to the… Court of Appeals…, the notice of appeal required by Rule 3
shall be filed with and received by the clerk of the trial court within 30 days after the date
of entry of the judgment appealed from….” As discussed above, by order of December
10, 2014, the trial court declared La’Trianna to be dependent and neglected. By order of
August 25, 2015, the trial court found La’Skylar to be dependent and neglected. DCS
filed separate petitions to terminate Mother’s parental rights to the children; these
petitions were consolidated for hearing on July 23, 2015. By order of September 22,
2015, the trial court terminated Mother’s parental rights to both children.

       On August 17, 2015, prior to the entry of the order terminating her parental rights,
Mother filed two form notices of appeal in the juvenile court. The first notice of appeal
sought appeal of a “July” order to the “4th Circuit” court. On this notice of appeal, under
“Type of Case,” Mother checked two boxes, one for “Dependent and Neglect” and the
other for “Parental Termination.” Like the first notice of appeal, the second notice of
appeal sought an appeal of a “July” order to the “4th Circuit” court but noted the “Type
of Case” as “Parental Termination” only.

       Although the circuit court had subject matter jurisdiction over the dependency and
neglect appeal, it did not have jurisdiction over the parental termination appeal.
Tennessee Code Annotated Section 37-1-159(c) provides that an appeal as of right from a
termination of parental rights in the juvenile court shall be heard directly by the Court of
Appeals. Ordinarily, a court without jurisdiction over a case “has no authority to transfer
it, unless that authority is specifically conferred by statute, rule, or constitutional
provision.” Norton v. Everhart, 895 S.W.2d 317, 319 (Tenn. 1995). However, as noted
by Appellant in her brief, pursuant to Tennessee Code Annotated Section 16-4-108(a)(2),
                                            -6-
when a case has been appealed to the wrong appellate court, the case shall be “transferred
to the court having jurisdiction thereof.” This Court has held that this statute applies even
when, as in this case, a case originating in juvenile court was incorrectly appealed to the
circuit court. See Dalton v. Deuel, No. M2005-02399-COA-R3-CV, 2007 WL 1241254,
at *2 (Tenn. Ct. App. Apr. 27, 2007) (citing In re Estate of White, 77 S.W.3d 765 (Tenn.
Ct. App. 2002)).

        However, even if we allow, arguendo, that the circuit court lacked the authority to
transfer this case to the Court of Appeals, we nonetheless conclude that Mother’s second
notice of appeal, filed in the trial court on August 17, 2015, was sufficient to confer
jurisdiction over the parental termination appeal to this Court under Tennessee Rule of
Appellate Procedure 3(a). As noted above, Appellant’s notice of appeal from the parental
termination case was filed in the juvenile court on August 17, 2015, which was prior to
the entry of the trial court’s September 22, 2015 order terminating her parental rights.
Tennessee Rule of Appellate Procedure 4(d) provides that “[a] prematurely filed notice of
appeal shall be treated as filed after the entry of the judgment from which the appeal is
taken and on the day thereof.” Accordingly, based strictly on the timing, Mother’s notice
of appeal is not invalid.

       However, the fact remains that, substantively, Mother’s notice of appeal did not
denote the proper court to which she was appealing the judgment of the trial court.
Tennessee Rule of Appellate Procedure 3(f) provides, in relevant part: “[t]he notice of
appeal shall specify the party or parties taking the appeal…, shall designate the judgment
from which relief is sought, and shall name the court to which the appeal is taken.” Here,
Mother’s notice of appeal fails to comport with the requirements of Tennessee Rule of
Appellate Procedure 3(f) in at least two regards. First, the notice of appeal references a
“July” order as the order appealed; however, there is no July order in the record.
Although the trial court heard the petition to terminate parental rights in July, the order
terminating Mother’s parental rights was not entered until September 22, 2015. Second,
Mother’s notice of appeal lists the wrong appellate court, i.e., the circuit court rather than
the Court of Appeals. The question, then, is not, as DCS argues, one of timing, but rather
one of sufficiency of the notice of appeal under Tennessee Rule of Appellate Procedure
3(f).

        Although Tennessee Rule of Appellate Procedure 3(f) sets out specific criteria
concerning the content of a notice of appeal, the rule also provides that “an appeal shall
not be dismissed for informality of form or title of notice of appeal.” The Advisory
Comments expound on the rule, stating that “[t]he purpose of the notice of appeal is
simply to declare in a formal way an intention to appeal. As long as this purpose is met, it
is irrelevant that the paper filed is deficient in some other respect.” Here, there is no
question that DCS was on notice that it would need to defend an appeal of the order
terminating Mother’s parental rights. As this Court has noted, the notice of appeal
functions as a device to alert other parties in the case that the decision is being appealed.
                                             -7-
When describing a case involving the modification of a parent’s visitation to allow a
divorced parent to move out of state, wherein the father erroneously filed his appeal to
the circuit court instead to the Court of Appeals, this Court stated that

      the appellant’s failure to name the court to which the appeal was being
      taken did not compromise the effectiveness of the notice in alerting the
      appellees that the appellant intended to seek further judicial review of the
      trial court’s judgment.

Howse v. Campbell, No. M1999-01580-COA-R3-CV, 2001 WL 459106, at *3 (Tenn. Ct.
App. May 2, 2001) (discussing Searle v. Pfister, No. M2000-00731-COA-R3-CV, 2000
WL 1862841, at *3-4 (Tenn. Ct. App. Dec. 21, 2000)). The Tennessee Court of Appeals
has the discretion to waive “defects in the contents of the notice [of appeal].” Searle,
2000 WL 1862841, at *3. In a similar case involving termination of parental rights, In re
B.N.J., this Court exercised its discretion under Tennessee Rule of Appellate Procedure
2, infra. In re B.N.J., No. M2008-02442-COA-R3-PT, 2009 WL 4017161, at *3 (Tenn.
Ct. App. Nov. 19, 2009). In re B.N.J. involved a defective notice of appeal, which
omitted the case name, trial court docket number, and the court to which the case was
appealed. Id., at *3. Nevertheless, this Court exercised its discretion, under Tennessee
Rule of Appellate Procedure 2, to proceed with the appeal on the merits, stating:

      Tennessee Rule of Appellate Procedure 2 permits this Court to suspend the
      requirements or provisions of any of the rules of appellate procedure for
      good cause… Because of the gravity of a proceeding to terminate the
      rights of a parent and the fact that the parties had notice of [the parent’s]
      intent to appeal before and after the entry of the final judgment, we do not
      find it appropriate under the circumstance to deny [the parent’s] right to
      appeal the judgment of the trial court.

Id. at *4. Like the B.N.J. case, Mother’s notice of appeal, even though it was deficient,
was sufficient to “declare in a formal way an intention to appeal.” Id. (citing Tenn. R.
App. P. 3(f)). Here, as in B.N.J., “[t]he notice evidently achieved this purpose as both
the trial court and the clerk of this Court knew which case was being appealed.” Id.
Additionally, DCS undisputedly received notice of Mother’s filing of the notice of
appeal, thus providing notice of the appeal of the termination of parental rights. Like
B.N.J., this appeal implicates the same “gravity of a proceeding to terminate the rights of
parent.” Id. Accordingly, we exercise our discretion under Tennessee Rules of Appellate
Procedure 2 to waive the formal requirements for notices of appeal under Tennessee Rule
of Appellate Procedure 3(f), and we exercise jurisdiction over the appeal.

                              V. Ground for Termination

      In terminating Mother’s parental rights, the trial court relied solely on the ground
                                         -8-
of mental incompetence. Each ground for termination of parental rights must be proven
by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re D.L.B., 118
S.W.3d at 367; In re Valentine 79 S.W.3d at 546. The ground of parental mental
incompetence is found at Tennessee Code Annotated Section 36-1-113(g)(8), which
provides:

        (8)(B) The court may terminate the parental or guardianship rights of that
        person if it determines on the basis of clear and convincing evidence that:

               (i) The parent or guardian of the child is incompetent to adequately
               provide for the further care and supervision of the child because the
               parent’s or guardian’s mental condition is presently so impaired and
               is so likely to remain so that it is unlikely that the parent or guardian
               will be able to assume or resume the care of and responsibility for
               the child in the near future; and

               (ii) That termination of parental or guardian rights is in the best
               interest of the child;

        (C) In the circumstances described under subdivisions (8)(A) and (B), no
        willfulness in the failure of the parent or guardian to establish the parent’s
        or guardian’s ability to care for the child need be shown to establish that the
        parental or guardianship rights should be terminated.

        In relying on this ground for termination of Mother’s parental rights, the trial court
found

        that [Appellant] is incompetent to adequately provide for the further care
        and supervision of the children because [Appellant]’s mental condition is
        presently so impaired and is so likely to remain impaired that it is unlikely
        that [Appellant] will be able to assume the care of and responsibility for the
        children in the near future.

                The fundamental question before this Court is whether the mother
        can reason well enough to make important decisions for this child. Some of
        the factors the Court considered in arriving at its conclusion include her IQ
        scores, the uncertainty regarding her abilities expressed by Dr.
        MacGillivray and The Solution Source in their clinical evaluations, and the
        conclusive findings of the two professionals who actually observed
        [Appellant] attempting to care for her children. [Appellant] has completed a
        lot of different steps, but the big step is being able to demonstrate that she
        “gets it” and that she will “get it” in the future. This Court does not believe
        she can.
                                               -9-
        Turning to the record, it is undisputed that Mother’s IQ is 66. This IQ score was
described by Mother’s psychologist as “very limited intellectually… she is likely to
continue to have serious problems living independently, let alone caring for her child.”
In the parenting assessment, counselors who observed Mother during supervised
visitation stated, in relevant part, that:

      [Mother’s] quest to get her own emotional and physical needs met has
      prevented and continues to prevent her from being accurately attuned to,
      anticipating, acknowledging and appropriately meeting her daughter’s
      needs…. [Mother and La’Trianna’s] emotional connection does not
      translate into an ability on [Mother’s] part to adequately parent her child….
      [Mother’s] cognitive and emotional deficits prevent [Mother] from being
      able to appropriately and effectively parent [her] daughter in any other than
      a supported, supervised setting. Supervised visitation in a contained
      environment is needed for Ms. [W.] to ensure La’Trianna’s emotional and
      physical safety and well-being as it is highly unlikely that enough change
      would or could be made by [Mother] to enable her to safely care for her
      daughter due to her limitations.

        At the hearing on the petitions to terminate Mother’s parental rights, both Ms.
Burke, Mother’s DCS case manager, and Ms. Goldstine, testified that Mother placed
herself in unsafe situations by bringing men to live in her home after meeting them on the
street and at bus stops and that Mother did not comprehend why this behavior threatened
her own safety, as well as the children’s. Ms. Burke stated that Mother “didn’t see the
safety concerns… that she wanted to have a social life and a boyfriend, so she didn’t see
why we were concerned.” Furthermore, Ms. Goldstine testified that,

      in [Mother’s] quest to get her emotional needs for intimacy and connection
      met, she places herself in situations which lead her to become very quickly
      engaged in sexual liaisons with men who[] she doesn’t know and then
      provides her reasoning for doing so and minimalizing any potential harm to
      herself or her child.

Renee Stegall, a therapist who supervised the interaction between Mother and the
children, stated that Mother should not have unsupervised time with the children. Even
in her own testimony, Mother conceded that her apartment is not safe for the children,
because of the men who come around the apartment. Despite this admission, the record
indicates that Mother does not understand that her behavior is dangerous and poses a
safety risk to the children.

       Nonetheless, Mother raises three arguments as to why the trial court erred in
finding her to be mentally incompetent to care for the children: (1) the parenting
assessment did not consider that Mother cooperated with the counselor’s instructions; (2)
                                         - 10 -
the psychological assessment was not sufficiently definite that Mother could not parent
the children; and (3) Mother has support from other family members, which compensates
for her own mental challenges in raising the children.

        As to the first of Mother’s arguments, Ms. Goldstine testified that Mother
followed her instructions and cooperated in clinical sessions. However, Ms. Goldstine
stated that

      [Mother’s] decisions that she makes to get her own emotional and physical
      needs met put a child in jeopardy or at risk of harm. And in having
      conversations with her about those choices, she did not seem to possess an
      understanding of why those choices, meeting men, picking them up at the
      bus station and bringing them home and engaging in sexual relationships
      with them without having any knowledge about them, would place her
      child at risk of harm.

Ms. Goldstine’s opinion was developed after two-and-one-half months of interviews with
and observations of Mother. From Ms. Goldstine’s testimony, although Mother
cooperated with the assessments, she failed to comprehend the purpose of the assessment,
which was to help her to understand how her choices affected the children and to aid in
her ability to make better parenting decisions.

      Mother’s second argument rests on the psychological assessment conducted by Dr.
William A. MacGillivray, which states, “it is too soon to conclude, on the basis of
information I have been given, that [Mother] is unable to parent her child.” Mother
contends that this opinion indicates that the psychological assessment was inconclusive
as to Mother’s mental competence to parent the children. At the hearing, Dr.
MacGillivray did not testify, but Ms. Goldstine testified regarding her review of Dr.
MacGillivray’s assessment as follows:

      Q. In the psychological evaluation of the mother that was completed by Dr.
          MacGillivray –
      A. Uh-huh.
      Q. – he had stated that [“]concerning her ability to parent her child, I
          would conclude that further information would be needed to assess her
          day-to-day ability to attend to her child’s needs.[”] Do you feel like
          that your evaluation has filled that blank in?
      A. Yes.
      Q. And then your conclusion after observation is that she doesn’t have the
          ability to tend to the day-to-day needs of her child; would that be
          correct?
      A. Correct, because she’s busy trying to attend to her own basic needs.

                                         - 11 -
Although Mother argues that Dr. MacGillivray’s testimony (i.e., that “it is too soon to
conclude, on the basis of information I have been given, that [Mother] is unable to parent
her child.”) should be given more weight than Ms. Goldstine’s opinion that Mother
cannot parent the children, Ms. Goldstine’s testimony, unlike Dr. MacGillivray’s
testimony, is corroborated by other testimony in the record. For example, DCS case
manager, Ms. Burke, testified that Mother stated that she moved strangers into her
apartment because “she wanted to have a social life, that she gets bored, that she wants to
have a love life as well” and that “[s]he didn’t really understand why it was a safety
concern to move in a stranger or even why we did background checks of why that was
concerning.” From the record as a whole, it is clear that the weight of the evidence
shows that Mother’s mental incompetence is not simply an intellectual deficiency, but
rather an impairment to her understanding that her needs for socialization and intimacy
cannot take precedence over the children’s safety.

       As to Mother’s parenting skills, counselors who worked with Mother during
therapeutic visitation with the children, stated that Mother’s mental incompetence
hindered her interaction with the children. For example, Ms. Stegall testified that

       [Mother’s] struggle was remaining engaged with her child, not
       understanding the age appropriate limitations that La’Trianna had during
       the visits, expecting her to do more than she was able to do…. She
       changed the baby’s diaper excessively. During the last visit I had tried to
       educate her on the importance of maintaining a schedule for the baby
       because foster mom had indicated that she would eat at a later time, mom
       tried to feed her early.

Ms. Stegall also testified that Mother had to be prompted at every visit to use the foster
mother’s formula instead of a formula that Mother brought, with Mother complaining to
Ms. Stegall that formula is not breast milk. Mother testified that she had not learned
anything in her educational therapy with Ms. Goldstine and Ms. Stegall because, after
having La’Trianna, she already knew everything about parenting.

        As to Mother’s final argument concerning family support, Mother relies on State
Dept. of Children’s Services v. Whaley. No. E2001-00765-COA-R3-CV, 2002 WL
1116430 (Tenn. Ct. App. May 30, 2002), in support of her contention that a mentally
incompetent parent, with a support system, may not have his or her parental rights
terminated on the grounds of mental incompetence. In Whaley, this Court did not make
such a bright-line rule; rather, we considered “factors” concerning whether a parent “by
clear and convincing evidence… is incompetent to such a degree that she is unable to
care for her child now or that she will be unable to care for [the child] in the future.” Id.
at *14. In Whaley, mother was diagnosed as mildly intellectually disabled, and mother’s
neighbor, a retired teacher, provided support to mother and volunteered to assist mother
in raising the child. Id. at *8. To this end, the neighbor also allowed mother and child to
                                            - 12 -
move into her home. Id. In deciding the appeal, this Court considered the evidence,
including that the mother had completed vocational training, had properly regulated and
administered her own prescription medications, had obtained a job, and was able to use
public transportation to get to work and appointments. Id. at *14. These factors,
combined with the fact that mother had not only a support system, but also a willing
foster parent, led this Court to conclude that the State had failed to show, by clear and
convincing evidence, that mother was mentally incompetent to provide care and
supervision for the child. Id.

        The instant case differs factually from Whaley. Although Mother argues that she
has support from her grandmother, Luzanna W, Mother’s own testimony casts doubt as to
whether Mother will remain in Luzanna W.’s home.4 Although Luzanna W. testified that
Mother can live with her free of charge, Mother continues to maintain an apartment,
where her possessions are located. The record indicates that, in the past, Mother has been
transient, moving from her apartment, to her grandmother’s house, to La’Trianna’s
father’s residence, and back to her apartment. Mother’s apartment, as described by
Mother, is “not safe.” Where the mother in Whaley was able to complete vocational
training and maintain employment, our record does not show that Mother has the capacity
to navigate employment. Here, Mother has not returned to her vocational training class,
which she left incomplete after she became pregnant with La’Skylar. Although Mother
testified that she began an online sales job (at midnight prior to the hearing), she could
neither recall the name of the company nor supply any details to the trial court. Mother’s
IQ is 66, and her psychological report indicates that she is “very limited intellectually.”
The record shows that her intellectual limitations extend to her ability to learn proper
parenting skills. As discussed above, several expert witnesses testified that Mother
should not be unsupervised with the children, as she requires prompting and is unable to
retain information (even short-term) concerning proper parenting skills. Perhaps most
troubling, however, is Mother’s pattern of making dangerous decisions in meeting men
and moving them into her apartment without understanding that these decisions threaten
not only her own safety, but also the children’s safety. As the trial court found in its
order:

       [Mother] has consistently failed to see how moving strangers into her home
       could be a safety risk to herself and her child. When confronted, she has
       responded that she was bored, she wanted to have a boyfriend and a social
       life and didn’t see why anybody was concerned.

From the totality of the circumstances, we conclude that there is clear and convincing
evidence that Mother is mentally incompetent to provide adequately for the future care

       4
          There is dispute in the record as to the proper spelling of Luzanna W.’s name. For
consistency and clarity, we will use the spelling set out in the parties’ appellate briefs and the
transcript, “Luzanna W.”
                                              - 13 -
and supervision of the children.
                                     VI. Best Interests

        When at least one ground for termination of parental rights has been established,
the 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
ground(s) for termination of parental rights), the interests of parent and child diverge. In
re Audrey S., 182 S.W.3d at 877. 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). Further, “[t]he 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. 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;

                                            ***

       (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....
       (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
                                          - 14 -
       effectively providing safe and stable care and supervision for the child....
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. As explained by this Court:

       Ascertaining a child’s best interests does not call for a rote examination of
       each of Tenn. Code Ann. § 36-1-113(i)’s nine factors and then a
       determination of whether the sum of the factors tips in favor of or against
       the parent. The relevancy and weight to be given each factor depends on
       the unique facts of each case. Thus, depending upon the circumstances of a
       particular child and a particular parent, the consideration of one factor may
       very well dictate the outcome of the analysis.

White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).

       In its order, the trial court made several findings regarding the children’s best
interests. With regard to the first and second factors, i.e. whether the parent has made
lasting adjustments so as to make the home safe for the children, the trial court found

       [Mother] has not made such an adjustment of circumstance, conduct, or
       conditions as to make it safe and in the children’s best interest to be in her
       home despite reasonable efforts by available social services agencies for
       such duration of time that lasting adjustment does not reasonably appear
       possible.

        Concerning the third factor as to visitation, the trial court stated that “[Mother] has
maintained regular visitation with the children but that visitation is now problematic for
La’Trianna.” As to the fifth factor, i.e., the effect of a change in caretakers and physical
environment from the foster family to Mother, the trial court found that “[a] change of
caretakers and physical environment is likely to have a detrimental effect on the
children’s emotional and psychological condition.” In discussing the sixth factor, the
trial court found that “[Mother] has shown neglect toward La’Trianna and remained in
the home with that child’s father despite his abuse.” For the seventh factor, the safety of
the parent’s home, the trial court found that:

       [Mother has] remained in the home with that child’s father despite his
       abuse. She has an apartment of her own, but has failed to demonstrate that
       it would be a safe place for her children. She is currently residing in the
       crowded home of her grandmother but there is no guarantee that she will
                                          - 15 -
       remain there long-term.
Finally, as to the eighth factor, which refers to the effect of the parent’s emotional or
mental state on the parent’s ability to care for the child, the trial court stated that “[t]he
primary issue is that [Mother]’s mental and/or emotional status would be detrimental to
the children or prevent [Mother] from effectively providing safe and stable care and
supervision for the children.”

       As discussed above, the record indicates that Mother struggles with proper
parenting skills in terms of dividing her attention and time between the children and
providing appropriate parenting and care. Several counselors testified that they would
not recommend that Mother have unsupervised visitation with the children. Additionally,
from the evidence adduced at the hearing, it is clear that Mother fails to understand the
safety concerns arising from her decision to move men into her apartment after knowing
them for only a short time. Furthermore, Mother has not demonstrated that she would be
able to provide a safe home environment for two children. At the hearing, Mother agreed
that her apartment is unsafe.

       The record shows that La’Trianna and La’Skylar are flourishing in their foster
home. Ms. F., the children’s foster mother, testified that La’Trianna identifies herself
verbally as part of the foster family and that she has bonded with her sister in the foster
home. Ms. F. stated that she was willing to adopt both children. Ms. F. stated that
La’Trianna had recently begun wetting her bed after visitation with Mother and that
La’Trianna left supervised therapeutic visitation with Mother by greeting Ms. F. as her
mother and running to her with outstretched arms. Accordingly, there is evidence to
suggest that a change in caregivers, at this point, would cause emotional and
psychological distress to the children.

       From the totality of the circumstance, Mother displays significant difficulty in
retaining and implementing proper parenting skills. More concerning, Mother fails to
understand that her lifestyle, including the array of people living in her apartment,
threatens the wellbeing and safety of the children. Mother is unable to comprehend that,
by putting her needs for emotional and physical intimacy before the needs of the children,
she endangers them. Accordingly, we conclude that there is clear and convincing proof
to support the trial court’s finding that termination of parental rights is in the children’s
best interests.

                                     VII. Conclusion

       For the foregoing reasons, the order of the trial court, terminating Appellant’s
parental rights to the children, is affirmed. The case is remanded for such further
proceedings as may be necessary and are consistent with this opinion. Costs of the appeal


                                            - 16 -
are assessed to the Appellant, La’Treese W. Because La’Treese W. is proceeding in
forma pauperis in this appeal, execution for costs may issue if necessary.




                                               _______________________________

                                               KENNY ARMSTRONG, JUDGE




                                      - 17 -
