                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                                Assigned On Briefs July 28, 2011

 IN THE MATTER OF: JADA T.L.P. (d/o/b 10/11/2003) AND JOSEPH D.P.
      (d/o/b 5/25/2009), Children Under Eighteen (18) Years of Age

                   Direct Appeal from the Juvenile Court for Sevier County
                   No. 10-000726 & 10-000727      Dwight E. Stokes, Judge


                  No. E2011-00291-COA-R3-PT-FILED-AUGUST 19, 2011


This is a termination of parental rights case. The juvenile court terminated the parental rights of the
mother on the grounds of persistence of conditions, substantial noncompliance with the terms of her
permanency plans, severe child abuse, and abandonment. The mother appeals, arguing the
Department of Children’s Services did not make reasonable efforts to reunite her with her children
following their removal and did not clearly and convincingly prove termination of her parental rights
was in the best interests of the children. We affirm.

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

D AVID R. F ARMER, J., delivered the opinion of the Court, in which H OLLY M. K IRBY, J., and
J. S TEVEN S TAFFORD, J., joined.

Robert L. Huddleston, Maryville, Tennessee, for the appellant.

Robert E. Cooper, Jr., Attorney General and Reporter, Alexander S. Rieger, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.

                                   MEMORANDUM OPINION 1



       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

       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       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited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.
         Kimberly L.P. (“Mother”) is the single mother of Joseph D.P. (d.o.b. 5/25/2009) and
Jada T.L.P. (d.o.b. 10/11/2003).2 Mother is an admitted drug addict who at the time of the
hearing in this cause had recently begun a long-term drug rehabilitation program in
Knoxville, Tennessee. Mother’s abuse of prescription painkillers, primarily morphine
tablets, began in 2006. Mother testified she initially used morphine on a recreational basis
but later developed a “full blown addiction.” In 2007, Mother’s drug use led to an arrest and
subsequent guilty plea to simple possession in Loudon County, Tennessee. By May 2008,
Mother was ingesting morphine daily and hydrocodone twice per week, both without a
doctor’s prescription. Despite becoming pregnant in 2008, Mother’s drug abuse continued.
Her youngest child, Joseph, was consequently born addicted to drugs and in the lower tenth
percentile for weight and length. He suffered from withdrawal, experienced uncontrollable
fits, struggled to keep his milk down, and had to be weaned from opiate addiction through
the extended administration of phenobarbital.

        The Department of Children’s Services (“DCS”) intervened after learning of Joseph’s
condition and filed a petition for temporary custody of both children. DCS alleged Mother
illegally obtained morphine pills from the maternal grandmother, ingested both morphine and
hydrocodone during her pregnancy with Joseph, and caused Joseph to be born extremely drug
exposed. DCS further alleged no less drastic alternative to removal would reasonably protect
the children from an immediate threat to their health and safety pending a preliminary
hearing because Mother’s chronic drug addiction rendered her unfit to care for the children.
The juvenile court, finding probable cause to believe the children were dependent and
neglected and that removal was necessary, granted a temporary custody order and set a
preliminary hearing for June 10, 2009. At the June 10 preliminary hearing, the juvenile court
continued the matter and awarded Mother visitation contingent upon her passing drug
screens. At the subsequent hearing, Mother stipulated to a finding of probable cause of
dependency and neglect. Mother also stipulated at the final dependency and neglect hearing
that she abused prescription drugs during her pregnancy with Joseph and caused the child to
suffer from withdrawal. The juvenile court consequently concluded clear and convincing
evidence supported a finding that both children were dependent and neglected “pursuant to
Tenn. Code Ann. § 37-1-102(b)(12)(F) and (G).”3 It did not, however, find Mother


       2
           This appeal concerns only the parental rights of Mother.
       3
         Tennessee Code Annotated sections 37-1-102(b)(12)(F) and (G) provide that a “dependent and
neglected child” includes a child:

               (F) Who is in such condition of want or suffering or is under such improper
       guardianship or control as to injure or endanger the morals or health of such child or others;
               (G) Who is suffering from abuse or neglect[.]
                                                                                                (continued...)

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committed severe child abuse. Because Mother was incarcerated at the time of the final
dependency and neglect hearing, the juvenile court ordered legal and physical custody of the
children to remain with DCS.

        DCS created at least two sets of permanency plans for Mother and the children. The
first set of permanency plans required Mother to complete an alcohol and drug assessment,
submit to random drug screens, attend parenting classes, obtain a legal income, and maintain
appropriate housing for the children. The second set of permanency plans incorporated
similar requirements and further required Mother to resolve her pending legal issues without
incurring additional charges. DCS attempted to provide Mother with services to complete
the requirements of her permanency plans, but those efforts were frustrated by Mother’s
refusal to cooperate and her incarceration. The record shows Mother did not attempt to
comply with her permanency plans following the children’s removal; rather, she continued
abusing drugs and refused at least two drug screens. She was thereafter jailed from
September 2009 to February 2010 and from March 2010 to July 2010 for violating the terms
of her probation, restricting DCS’s ability to provide services. Even when Mother was not
incarcerated, DCS struggled to maintain contact with Mother.

       DCS was able to provide Mother with some services despite the aforementioned
difficulties. The record establishes the efforts of DCS as follows: (1) Mother’s case
manager, Lorrie Armstrong, made phone calls and sent letters of notice of the staffing of the
permanency plans to Mother; (2) Ms. Armstrong met with Mother at court proceedings; (3)
Ms. Armstrong spoke with Mother about rehabilitation programs and gave her telephone
numbers to call for an alcohol and drug assessment; (5) Ms. Armstrong met with Mother in
August 2009 to have Mother sign papers related to the children’s education and health; (6)
Ms. Armstrong asked Mother to take drug screens, which Mother refused; (7) DCS offered
to conduct visitation if Mother passed the drug screens; (8) Laura Hamilton, a family service
worker for DCS in Blount County, met with Mother at the Loudon County Jail while Ms.
Armstrong was on maternity leave; (9) Ms. Hamilton discussed Mother’s permanency plan
and where she could obtain services following her release; (10) Ms. Armstrong administered
two successful drug screens in July 2010; and (11) Ms. Armstrong provided visitation on five
separate occasions following Mother’s release from prison in July 2010. DCS also made
substantial efforts to establish the paternity of two men Mother named as the putative fathers
of Jada and Joseph and provided the children with a number of services designed to ensure
their health and well-being.

       DCS petitioned to terminate Mother’s parental rights as to both children in May 2010


       3
        (...continued)
Tenn. Code Ann. §§ 37-1-102(b)(12)(F), (G) (2010).

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while Mother was incarcerated in the Loudon County Jail. DCS alleged Mother had severely
abused Joseph by ingesting drugs during pregnancy, had not maintained sobriety subsequent
to removal of the children or following her release from prison in February 2010, had not
obtained stable housing and income, and had not completed the requirements of her
permanency plans. DCS further alleged Mother’s conviction for a drug offense, conviction
for violation of the Tennessee Financial Responsibility Law, and convictions for probation
violation exhibited a wanton disregard for the children’s welfare. Asserting termination of
Mother’s parental rights was in the best interests of the children, DCS sought a final decree
forever severing the parent-child relationship between Mother and her two children.

       The juvenile court conducted a final hearing on DCS’s petition in October 2010 and
took the matter under advisement. On January 12, 2011, the juvenile court issued a final
judgment terminating the parental rights of Mother. The court found: (1) DCS made
reasonable efforts to reunify Mother with her children based on the totality of the
circumstances in the case; (2) DCS clearly and convincingly established the grounds for
termination of substantial noncompliance, persistence of conditions, abandonment, and
severe child abuse; and (3) DCS clearly and convincingly showed termination of Mother’s
parental rights was in the best interests of the children. On the issue of best interests, the
court emphasized that maintaining the children’s continuity of placement in a stable and
loving pre-adoptive foster home, as well as their need to “move on,” supported its decision.
Mother timely appealed.

                                   II. Issues Presented

       Mother presents the following issues, as we slightly restate them, for our review:

              (1) Whether DCS made reasonable efforts to reunite Mother and her
       children; and

              (2) Whether DCS proved by clear and convincing evidence that
       termination of Mother’s parental rights was in the best interests of the
       children.

Mother does not argue DCS failed to prove grounds for the termination of her parental rights.
These issues are therefore waived. See Tenn. R. App. P. 27(a)(7); Tenn. Ct. App. R. 6(a),
(b); Bean v. Bean, 40 S.W.3d 52, 55-56 (Tenn. Ct. App. 2000) (citations omitted).

                                 III. Standard of Review

       This Court reviews a trial court’s findings of fact de novo upon the record, according

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a presumption of correctness to the findings unless a preponderance of the evidence is to the
contrary. Tenn. R. App. P. 13(d); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citation
omitted). This Court will not reevaluate the determinations of a trial court based on an
assessment of credibility unless clear and convincing evidence is to the contrary. In re
M.L.D., 182 S.W.3d 890, 894 (Tenn. Ct. App. 2005) (citation omitted). This Court reviews
the record de novo where the trial court has not made a specific finding of fact. In re
Valentine, 79 S.W.3d at 546 (citation omitted). No presumption of correctness attaches to
a trial court’s conclusions of law. Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913,
916 (Tenn. 2000) (citation omitted).

        Tennessee Code Annotated section 36-1-113 governs the termination of parental
rights. The Code provides, in pertinent part:

              (c) Termination of parental or guardianship rights must be based upon:
              (1) A finding by the court by clear and convincing evidence that the
       grounds for termination of parental or guardianship rights have been
       established; and
              (2) That termination of the parent’s or guardian’s rights is in the best
       interests of the child.

Tenn. Code Ann. § 36-1-113(c)(1), (2) (2010). This two-step analysis requires appellate
courts to consider “whether the trial court’s findings, made under a clear and convincing
standard, are supported by a preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d
528, 530 (Tenn. 2006). “Although the ‘clear and convincing evidence’ standard is more
exacting than the ‘preponderance of the evidence’ standard, it does not require the certainty
demanded by the ‘beyond a reasonable doubt’ standard.”                In re M.A.B., No.
W2007-00453-COA-R3-PT, 2007 WL 2353158, at *2 (Tenn. Ct. App. Aug. 20, 2007)
(citation omitted). “Clear and convincing evidence is evidence that eliminates any
substantial doubt and that produces in the fact-finder’s mind a firm conviction as to the
truth.” Id. (citation omitted).

                                        IV. Analysis

                                   A. Reasonable Efforts

       The first question before this Court is whether DCS made reasonable efforts to help
reunite Mother with her children. 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)

                                              -5-
(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).
Although DCS may be relieved of its duty to make reasonable efforts after a court of
competent jurisdiction finds “aggravating circumstances,” Tenn. Code Ann. §
37-1-166(g)(4)(A)-(C), it cannot withhold reasonable efforts “‘in the hopes that a court will
later make a finding . . . that retroactively ‘forgives’ DCS’s lack of efforts. . . .’” 4 In re
Keisheal N.E., No. M2009-02527-COA-R3-PT, 2010 WL 2176104, at *13 (Tenn. Ct. App.
May 28, 2010) (no perm. app. filed) (quoting In re B.L.C ., No. M2007-01011-COA-R3-PT,
2007 WL 4322068, at *9 (Tenn. Ct. App. Dec. 6, 2007)).

       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.

In re Tiffany B., 228 S.W.3d at 158-59 (footnote omitted) (citing In re Giorgianna H., 205


        4
          DCS submits for the first time on appeal, and despite the filing of numerous affidavits of reasonable
efforts, that it was not required to make reasonable efforts to reunite Mother with her children. DCS,
however, was not relieved of its duty to make reasonable efforts on the grounds of Tennessee Code
Annotated section 36-1-113(g)(1)–(3) prior to the termination hearing, because the court’s order on
dependency and neglect concluded only that the children were dependent and neglected “pursuant to Tenn.
Code Ann. § 37-1-102(b)(12)(F) and (G).” The court did not make a finding of aggravated circumstances
which would relieve DCS of its statutory duty until the final judgment terminating Mother’s parental rights.
Because we find DCS made reasonable efforts, we need not consider whether the grounds in Tennessee Code
Annotated section 36-1-113(g)(4)–(8), including the ground of severe child abuse, require the exercise of
reasonable efforts in the absence of a prior finding of aggravated circumstances. See In re Bernard T., 319
S.W.3d 586, 600 n.30 (Tenn. 2010); In re Keisheal N.E. ,No. M2009-02527-COA-R3-PT, 2010 WL
2176104, at *8 n.8 (Tenn. Ct. App. May 28, 2010); In re C.M.M., No. M2003-01122-COA-R3-PT, 2004 WL
438326, at *7 n.26 (Tenn. Ct. App. Mar. 9, 2004).

                                                     -6-
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 utilize their education and training to help a mother eliminate the conditions
requiring removal of her children and to meet the responsibilities of her permanency plans
before courts will terminate the parent-child relationship. In re R.L.F., 278 S.W.3d at 316
(citations omitted). DCS’s duty to affirmatively assist parents exists even if the parents do
not seek assistance. Id. (citing In re C.M.M., 2004 WL 438326, at *7). “While the
Department’s reunification efforts need not be ‘herculean,’ the Department must do more
than simply provide the parents with a list of services and send them on their way.” In re
Giorgianna H., 205 S.W.3d at 519 (citation omitted).

       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) (citation omitted). 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. (citations omitted).

        Mother argues the trial court erred when it considered the totality of the circumstances
when deciding the issue of reasonable efforts. Mother contends her incarceration should not
affect DCS’s duty to make reasonable efforts or, in the alternative, it should place a higher
burden on DCS to provide services. According to Mother, DCS did not make reasonable
efforts either before or during her incarceration. We disagree. Having reviewed the record,
we conclude DCS made reasonable efforts to assist Mother. DCS initially took affirmative
steps to provide Mother with services which she refused to accept. Any further attempts to
provide services were frustrated by Mother’s persistent incarceration. Although we consider
this a close case in light of the clear and convincing standard, it was ultimately Mother who
did not make reasonable efforts to rehabilitate herself and it was ultimately Mother’s actions
that impeded DCS’s ability to provide services. Considering the unique facts of this case,
we affirm the juvenile court’s finding on the issue of reasonable efforts.

                                              -7-
                                        B. Best Interests

        The second question before this Court is whether termination of Mother’s parental
rights was in the best interests of the children. Termination of a mother’s parental rights is
appropriate only if clear and convincing evidence establishes that eliminating those rights is
in the best interests of the child or children named in the petition. Tenn. Code Ann. § 36-1-
113(c)(2) (2010). Courts consider the following non-exhaustive list of factors when
determining the best interests of a child:

              (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.

Tenn. Code Ann. § 36-1-113(i)(1)-(9) (2010). “Every factor need not be applicable in order
for the trial court to determine that it is in the best interest of the child for a parent’s right[s]

                                                 -8-
to be terminated.” In re D.C.A., No. M2008-01279-COA-R3-PT, 2009 WL 837877, at *8
(Tenn. Ct. App. Mar. 30, 2009) (no perm. app. filed). The weight and relevance of these
factors may vary from case to case and it is possible that a single factor is determinative. Id.
(citing In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)). In evaluating the issue
of best interests, the court must remember that any conflict between the best interests of a
child and the adult parent “shall always be resolved to favor the rights and the best interests
of the child. . . .” Tenn. Code Ann. § 36-1-101(d) (2010).

        The juvenile court found termination of Mother’s parental rights was in the best
interests of the children based in part on their need for future stability in a loving home. The
court explained the children were in a “drug-free, safe and nurturing environment in their
foster home with an extended and loving family” where they appeared to be “thriving.” In
the court’s view, the children needed an opportunity to “move on,” whereas it would “take
many more months or years before the mother is in a position to parent the children.” The
court found Mother had abused and neglected Joseph, failed to support the children, and
thwarted her ability to reunify with the children. Considering the factors it deemed relevant,
the juvenile court found clear and convincing evidence to show that termination was in the
best interest of Joseph and Jada.

        Mother argues the juvenile court’s findings do not clearly and convincingly
demonstrate termination was in the best interests of the children. Mother submits DCS did
not provide evidence to show she failed to foster a meaningful relationship with the children,
had not formed a bond with the children, or failed to visit the children when released from
prison. Mother further argues she made an adjustment of circumstances by enrolling herself
in long-term drug rehabilitation prior to the final termination hearing. DCS disagrees,
submitting Mother did not make an adjustment of circumstances, conduct, or conditions as
to make it safe for the children’s return merely by enrolling in a rehabilitation program.
Rather, an adjustment of circumstances would occur only if and when Mother completed the
program many months later. DCS further argues Mother did not maintain regular visitation
with the children, emphasizing the fact that she refused to take the drug tests necessary to
permit visitation in the months immediately following removal. Mother’s submission to drug
tests only after the filing of the termination petition was too little, too late according to DCS.
DCS instead maintained the fact that it took “a proceeding as grave as termination of parental
rights to spur a mother to visit her children” weighed in favor of termination.

        We affirm the decision of the juvenile court. The evidence shows Mother has not
made such an adjustment of circumstances, conduct, or conditions as to make it safe and in
the children’s best interests to be in Mother’s care. Mother did not maintain regular
visitation or other contact with the children during these proceedings. And Mother inflicted
abuse and neglect on Joseph. The foster parents, on the other hand, have developed a

                                               -9-
healthy, loving relationship with the children and intend to adopt them at the conclusion of
these proceedings. Considering the totality of the evidence before the juvenile court, we
conclude it correctly found clear and convincing evidence to support termination of Mother’s
parental rights.

                                      V. Conclusion

      For the foregoing reasons, the decision of the juvenile court is affirmed. Costs of this
appeal are assessed to the appellant, Kimberly L.P., for which execution may issue if
necessary.




                                                    _________________________________
                                                    DAVID R. FARMER, JUDGE




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