                                                                                                       01/16/2020
                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                            Assigned on Briefs December 2, 2019

                                       IN RE RONON G.

                      Appeal from the Circuit Court for Lewis County
                       No. 2016-CV-20 Michael E. Spitzer, Judge
                         ___________________________________

                                 No. M2019-01086-COA-R3-PT

Mother appeals the termination of her parental rights to her two children on grounds of
abandonment by failure to establish a suitable home, substantial noncompliance with
permanency plans, and persistence of conditions. We conclude that two grounds were not
applicable to Mother’s younger child because she was not removed from Mother’s home.
Because at least one ground was supported by the evidence as to each child, and the
evidence clearly and convincingly shows that termination is in their best interest, we
affirm the overall termination of Mother’s parental rights as modified.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in
                            Part; and Affirmed in Part

J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., and ANDY D. BENNETT, JJ., joined.

Richard Boehms, Hohenwald, Tennessee, for the appellant, Cassandra G.

Herbert H. Slatery, III, Attorney General and Reporter; Peako A. Jenkins, Assistant
Attorney General; for the appellee, Tennessee Department of Children’s Services.

                                              OPINION

                                       I.      BACKGROUND

      The Tennessee Department of Children’s Services (“DCS”) became involved with
Respondent/Appellant Cassandra G.1 (“Mother”) in January 2014, due to concerns of
environmental neglect of Mother’s son, Ronon G.2 Relevant to this appeal, DCS

        1
          In cases involving termination of parental rights, it is this Court’s policy to remove the full
names of children and other parties to protect their identities.
        2
          According to the dependency and neglect petition filed with regard to these children, Mother
had previously had DCS intervention in 2012 when Ronon was an infant.
conducted a home study of Mother’s home at that time and noted that it was filthy and
unsuitable for a child. DCS also was concerned that Ronon was not wearing weather-
appropriate clothes that fit him. Mother moved twice in quick succession, first to a home
with no electricity and then to a home that had no stove or refrigerator. DCS set up
services for Mother, but Mother gave birth to a second child, Persephone G., before the
services began. A few days after her birth, Persephone was hospitalized at Vanderbilt
Hospital in Nashville. Persephone underwent heart surgery and remained continuously at
Vanderbilt Hospital for approximately two months.

        During Persephone’s hospitalization, Mother left Ronon with relatives; Mother
lived sometimes with these relatives, often with other relatives, and sometimes in
Nashville.3 DCS provided the relatives caring for Ronon with various necessary supplies
because Mother did not provide them and the relatives could not afford them. DCS was
also concerned because Mother was doing little to maintain her bond with Ronon during
this time. Following heart surgery and recovery, Persephone was set to be released on
two conditions: (1) her caregiver was required to provide a sterile environment free of
cigarette smoke, pets, and other irritants; and (2) the caregiver was required to spend 48-
hours in the hospital “rooming-in” to learn to provide the care necessary for the child
under hospital supervision. Mother did not complete the rooming-in period and she was
not able to provide a home meeting these requirements. Moreover, the relatives caring for
Ronon could not provide for him due to financial issues.4 As such, the children came into
DCS custody by ex parte custody order on August 21, 2014. The children were placed
with a foster family (“Foster Family”) that completed the rooming-in period and that was
qualified to care for a medically fragile child. The children continued to reside with
Foster Family at the time of the termination petition.

        DCS filed a termination petition on August 18, 2016.5 Therein, DCS alleged
grounds for termination of abandonment by failure to provide a suitable home, substantial
non-compliance with permanency plans, and persistence of conditions. DCS filed an
amendment to their petition on August 31, 2018, to add the ground of mental
incompetence. The trial court thereafter denied Mother’s motion to strike the amendment
but granted Mother’s request for a continuance. A trial was held on March 29, 2019. The
proof consisted of the testimony of several DCS workers, foster mother, and the
deposition of a mental health professional retained to evaluate Mother’s mental
competence. Mother did not testify or call any witnesses on her behalf.

        3
           In particular, when asked where the family was living after Persephone’s birth, a DCS worker
testified that in addition to other places, “they were staying at Myra’s a little bit and [with other relatives]
a little bit, but there wasn’t anywhere definite”; testimony from DCS clarified that “Myra” was the
relative where Ronon was living at the time of the eventual removal. Prior to Persephone’s birth, Ronon
stayed with Mother even when she was “bouncing around from place to place.”
         4
           This home was also not suitable for Persephone.
         5
           The petition also sought termination of the parental rights of the children’s fathers; they are not
at issue in this appeal.
                                                     -2-
       DCS presented several parenting plans that were ratified by the juvenile court. The
general focus of the plans, as detailed infra, was for Mother to establish a safe and stable
home, for Mother to engage in visitation so as to bond with the children, for Mother to
participate in mental health treatment, and for Mother to obtain a legal means of income.

        Mother’s housing situation was a significant issue at trial. Following the removal,
Mother moved into a home with her current boyfriend. Two home visits revealed that the
house was filthy and lacked appropriate furniture and food for the children.6 Mother soon
left this residence, as she claimed that her boyfriend was abusive. For the next several
years, Mother moved from home to home, often staying with friends and relatives.
Sometimes Mother would not allow DCS to complete home visits on the homes;
sometimes home visits revealed the homes to be unsuitable. Mother never provided a
lease showing that she had obtained any kind of stable residence and no home visit ever
concluded with a finding that Mother has a safe and stable residence for the children.

       Mother had various jobs following the removal of the children, but none that
lasted for a significant period of time. The only proof of income provided to DCS was a
handwritten statement from 2014 stating that Mother has been paid $272.00. Mother paid
some child support following the removal, but was not consistent. In September 2015,
Mother was held in criminal contempt for her failure to pay child support.

        Mother was provided supervised visitation following the removal of the children,
as well as parenting classes; Mother completed parenting classes and the visitation was
eventually increased. Mother missed some visits, often without timely notice. During
other visits, she would play on her phone; as such, DCS asked Mother to leave her phone
in her car during visits. When Mother was attentive, she gave the majority of her
attention to Ronon to the exclusion of Persephone. As such, Persephone was allowed to
engage in unsafe behaviors until stopped by DCS. Mother also provided unsafe food to
Persephone. During visits and other communications with DCS, Mother spoke to DCS
mostly about herself; outside of visits, Mother never asked about the children’s well-
being. Foster Mother eventually stopped coming to visits because the children looked to
her for direction, rather than Mother. Because Mother did not apply the skills she learned
in parenting classes during the visitations, DCS offered Mother additional classes;
Mother declined, stating that she did not need them.

       Both children, but especially Persephone, had various medical and developmental
issues that were well taken care of by Foster Family. For example, following her
discharge from Vanderbilt Hospital, Persephone was initially required to attend weekly

       6
         On the second visit, Mother had attempted to remedy the lack of appropriate furniture. Rather
than buying an appropriate crib for infant Persephone and toddler Ronan, Mother had purchased a bunk
bed. Mother claimed that she had a crib, but it was undisputedly not present in the home.
                                                -3-
doctor’s appointments. Ronon was developmentally delayed, nonverbal, and suffered
from an emotional issue that manifested with physical symptoms. Both children,
however, were improving in Foster Family’s care by the time of trial, with Persephone
needing only yearly appointments for her heart condition. Although Mother was
encouraged to attend all of the children’s appointments, Mother attended relatively few
appointments, and mostly only those that were scheduled during her visitation time.

        The children are bonded to their Foster Family, who wishes to adopt the children.
The children refer to their foster parents as “mom and dad,” while Mother is referred to
as “birth mom.” Ronon once told Mother that she was “not [his] mommy.” According to
the testimony, the children are also bonded with Foster Family’s extended family, as well
as the school, church, and neighborhood to which they belong.

       Finally, the deposition testimony of a psychological examiner was admitted into
evidence. Mother admittedly suffers from depression, anxiety, and bipolar “tendencies”
but reported that she was medicated and had historically attended counseling.7 The
examiner testified as to the tests performed on Mother to determine her mental
competence. Although Mother’s mental capabilities fell in the average range, the
examiner opined that Mother presented a high risk to be abusive and that she was not able
to adequately care for her children were she to have sole responsibility for them.

      Following trial, the trial court entered a written order finding sufficient proof of
the grounds of abandonment by failure to provide a suitable home, substantial non-
compliance with permanency plans, and persistence of conditions. The trial court did not,
however, find sufficient proof of mental incompetence. The trial court further found that
termination was in the children’s best interests. Mother thereafter filed a timely appeal.

                                  I.      ISSUES PRESENTED

        On appeal, Mother challenges each of the grounds found by the trial court, as well
as the trial court’s finding that termination is in the children’s best interest.

                                II.     STANDARD OF REVIEW

        The Tennessee Supreme Court has previously explained that:

        A parent’s right to the care and custody of her child is among the oldest of
        the judicially recognized fundamental liberty interests protected by the Due
        Process Clauses of the federal and state constitutions. Troxel v. Granville,

        7
          According to the testimony, however, Mother sometimes failed to take medication when she felt
it was not working. The record was not clear as to whether Mother was attending counseling at the time of
trial.
                                                  -4-
       530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley v. Illinois,
       405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re Angela E.,
       303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female Child, 896
       S.W.2d 546, 547–48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d 573, 578–
       79 (Tenn. 1993). But parental rights, although fundamental and
       constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at
       250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors. .
       . .’ Tennessee law, thus, upholds the [S]tate’s authority as parens patriae
       when interference with parenting is necessary to prevent serious harm to a
       child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d
       425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S.
       745, 747, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); In re Angela E., 303
       S.W.3d at 250.

In re Carrington H., 483 S.W.3d 507, 52223 (Tenn. 2016) (footnote omitted). In
Tennessee, termination of parental rights is governed by statute which identifies
“‘situations in which that 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 Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App.
2013) (quoting 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))). Thus, a party seeking to terminate a parent’s rights must prove: (1)
existence of one of the statutory grounds and (2) 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).

       Considering the fundamental nature of a parent’s rights, and the serious
consequences that stem from termination of those rights, a higher standard of proof is
required in determining termination cases. Santosky, 455 U.S. at 769. As such, a party
must prove statutory grounds and the child’s best interests by clear and convincing
evidence. Tenn. Code Ann. § 36-3-113(c); 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 evidence[,]” and “produces in a fact-finder’s mind a firm belief
or conviction regarding the truth of the facts sought to be established.” In re M.J.B., 140
S.W.3d 643, 653 (Tenn. Ct. App. 2004).

      In termination cases, appellate courts review a trial court’s factual findings de
novo and accord these findings a presumption of correctness unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); In re Carrington H., 483 S.W.3d at
52324 (citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010); In re M.L.P., 281
S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn.
2007)). Our supreme court further explains:
                                         -5-
       The trial court’s ruling that the evidence sufficiently supports termination
       of parental rights is a conclusion of law, which appellate courts review de
       novo with no presumption of correctness. In re M.L.P., 281 S.W.3d at
       393 (quoting In re Adoption of A.M.H., 215 S.W.3d at 810). Additionally,
       all other questions of law in parental termination appeals, as in other
       appeals, are reviewed de novo with no presumption of correctness. In re
       Angela E., 303 S.W.3d at 246.

In re Carrington H., 483 S.W.3d at 524.

       Lastly, in the event that 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.” In re Navada N., 498 S.W.3d 579, 591 (Tenn. Ct.
App. 2016) (citing 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)). This Court therefore
“gives great weight to the credibility accorded to a particular witness by the trial court.”
In re Christopher J., No. W2016-02149-COA-R3-PT, 2017 WL 5992359, at *3 (Tenn.
Ct. App. Dec. 4, 2017) (citing Whitaker, 957 S.W.2d at 837).

                                    III.   DISCUSSION

                                A. Grounds for Termination

       The trial court found three grounds for termination of Mother’s parental rights:
abandonment by failure to establish a suitable home, substantial noncompliance with
permanency plans, and persistence of conditions. In this case, the evidence supporting
each ground generally overlaps. This, however, is not a bar to finding multiple grounds
for termination. See Tenn. Code Ann. § 36-1-113(g) (“[A]cts or omissions in one ground
does not prevent them from coming within another ground[.]”). We will therefore
consider each ground in turn.

   1. Abandonment by Failure to Establish a Suitable Home

       Under Tennessee Code Annotated section 36-1-113(g)(1), “[a]bandonment by the
parent or guardian, as defined in § 36-1-102” may constitute a ground for termination.
Section 36-1-102(a) in turn contains several definitions for the statutory ground of
abandonment. At the time the petition was filed, the relevant definition of abandonment
provided as follows:

       The child has been removed from the home of the parent or parents or the
       guardian or guardians as the result of a petition filed in the juvenile court in
                                            -6-
        which the child was found to be a dependent and neglected child, as defined
        in § 37-1-102, and the child was placed in the custody of the department or
        a licensed child-placing agency, that the juvenile court found, or the court
        where the termination of parental rights petition is filed finds, that the
        department or a licensed child-placing agency made reasonable efforts to
        prevent removal of the child or that the circumstances of the child’s
        situation prevented reasonable efforts from being made prior to the child’s
        removal; and for a period of four (4) months following the removal, the
        department or agency has made reasonable efforts to assist the parent or
        parents or the guardian or guardians to establish a suitable home for the
        child, but that the parent or parents or the guardian or guardians have made
        no reasonable efforts to provide a suitable home and have demonstrated a
        lack of concern for the child to such a degree that it appears unlikely that
        they will be able to provide a suitable home for the child at an early date.
        The efforts of the department or agency to assist a parent or guardian in
        establishing a suitable home for the child may be found to be reasonable if
        such efforts exceed the efforts of the parent or guardian toward the same
        goal, when the parent or guardian is aware that the child is in the custody of
        the department; . . . .

Tenn. Code Ann. § 36-1-102(1)(A)(ii) (2016).8

        As noted above, this statute requires that the children be “removed from the home
of the parent or parents or the guardian or guardians as the result of a petition filed in the
juvenile court in which the child was found to be a dependent and neglected child[.]” Id.
(emphasis added). This Court has previously concluded that this ground was inapplicable
when the evidence did not establish that the child at issue was removed from the parent-
at-issue’s home. See, e.g., In re K.M.K., No. E2014-00471-COA-R3-PT, 2015 WL
866730, at *5 (Tenn. Ct. App. Feb. 27, 2015) (noting the lack of evidence as to the
father’s residence and the fact that the children were not living with the father at the time
of the removal); In re Maria B.S., No. E2012-01295-COA-R3-PT, 2013 WL 1304616, at
*10 (Tenn. Ct. App. Apr. 1, 2013) (reversing as to this ground when the children were
not removed from the father’s home). Likewise, Mother argues that this ground is
inapplicable because the children were not removed from her home at the time they came
into DCS custody. Instead, Ronon was staying with relatives, and Persephone was
residing at Vanderbilt Hospital.


        8
           This definition of abandonment was amended following the filing of the petition in this case.
See 2018 Tenn. Laws Pub. Ch. 875 (H.B. 1856), eff. July 1, 2018. In relevant part, the current version of
the statute now requires that the child be removed “from the home or the physical or legal custody of a
parent or parents or guardian or guardians by a court order at any stage of proceedings in which a petition
has been filed in the juvenile court alleging that a child is a dependent and neglected child[.]” Tenn. Code
Ann. § 36-1-102(1)(A)(ii) (2019). DCS concedes that the above language is not applicable to this case.
                                                   -7-
        Here, the evidence shows that Ronon was staying primarily with Mother’s
relatives at the time of the removal. The evidence indicates, however, that Mother was
also staying at this residence periodically prior to the removal, making this residence her
home as much as any of her other periodic residences. Moreover, Mother placed Ronon
with relatives because she had no home of any kind in which to keep him, and she was
spending a great deal of time in Nashville due to Persephone’s temporary hospitalization.
The evidence does not show that any formal action had taken place to place Ronon with
relatives, such as a court order.

        Ronon’s removal, therefore, is analogous with the removal that occurred in In re
Amarria L., No. M2017-00878-COA-R3-PT, 2018 WL 1391627 (Tenn. Ct. App. Mar.
20, 2018), where the mother left the child unsupervised at a homeless shelter; the child
was thereafter removed from the shelter and placed in DCS custody. Id. at *6. Other
cases have come to similar conclusions. See, e.g., In re Roger T., No. W2014-02184-
COA-R3-PT, 2015 WL 1897696, at *8 (Tenn. Ct. App. Apr. 27, 2015) (affirming this
ground where the mother was incarcerated and the children were staying in a camper that
lacked food and space). In another case in which removal from the parent’s home was a
prerequisite to the ground for termination at issue, this Court affirmed the trial court’s
finding that the child was removed from the father’s home even though the physical
removal of the child by DCS occurred at the mother’s home. See In re Alleyanna C., No.
E2014-02343-COA-R3-PT, 2015 WL 4773313, at *14 (Tenn. Ct. App. Aug. 10, 2015)
(involving persistent conditions, the requirements of which are discussed, infra). To reach
that result, we considered the fact that the father had joint physical custody of the child
and custody of the child had never been legally placed solely with the mother or other
relatives. Id. Moreover, the father admitted that he could not provide a stable home for
the children at the time of the removal. Id.

       Although Ronon was not left totally unsupervised, Ronon was removed from a
home where he was placed by Mother when she admittedly had no other suitable home
for the child to go. The evidence suggests that Mother also periodically stayed in this
home around the same time frame. Prior to that time, both Mother and the child had been
“bouncing around” among relatives’ homes. Moreover, the home where Mother left
Ronon was not equipped to care for him, leaving him little better than unsupervised at a
shelter. Likewise, no action was ever taken to place formal custody with relatives prior to
the removal by DCS. Under these circumstances, we decline to interpret the language of
section 36-1-102(1)(A)(ii) in such a restrictive manner as to make the ground
inapplicable in this situation. We therefore conclude that the trial court properly applied
this ground to Ronon.

       The same cannot be said of Persephone. At the time of the removal, Persephone
was not residing in a home of any kind, but at Vanderbilt Hospital. Although Mother was
spending considerable time in Nashville, she was not living with Persephone at the
hospital, as evidenced by her failure to complete the mandatory rooming-in period.
                                          -8-
Indeed, it appears that Persephone spent no more than ten days total in Mother’s home
and certainly was not in Mother’s home at the time of the removal. We are constrained by
the plain language of the applicable version of the statute to only apply this ground where
the child was removed from the parent’s “home.” Thus, despite the overwhelming
evidence that Mother did not have a suitable home for Persephone at the time of removal,
we cannot conclude that Persephone was in fact removed from Mother’s home.9
Consequently, we are forced to reverse this portion of the trial court’s order.

       Mother next argues that DCS did not make reasonable efforts to help Mother
establish a suitable home during the relevant time period. Respectfully, we disagree.
Here, the evidence shows that DCS provided Mother with several resources and detailed
steps to help her procure adequate housing, to improve Mother’s parenting skills, and to
improve the condition of Mother’s home. DCS also provided services to Mother related
to Persephone’s medical issues. Although Mother utilized some of the services, Mother
refused other services because she stated she did not need help.

       These efforts exceeded Mother’s efforts. Although Mother did move into an
apartment following the removal, two home visits revealed that the apartment was filthy
and inappropriate for the children. This residence, however, did not last. A few months
later, Mother’s transient lifestyle returned when she again moved from one home to
another, staying often with friends and relatives. On more than one occasion, Mother
refused to allow DCS to inspect the homes. Thus, the proof showed that compared to
Mother’s efforts, DCS “made reasonable efforts to assist the parent or parents or the
guardian or guardians to establish a suitable home for the child[.]” Tenn. Code Ann. § 36-
1-102(1)(a)(ii).

         Finally, the proof showed that Mother had no suitable home for Ronon to return to
at trial and it was unlikely that she could provide one in the near future. Although Mother
initially made some progress in securing an apartment, the apartment was not suitable and
even that stability was fleeting. Thereafter, Mother moved to various places, some of
which she refused to allow DCS to inspect, others of which were unsuitable. Although
DCS continued to attempt to inspect Mother’s home, its efforts never resulted in a single
home being declared suitable for the children. By the time the petition was filed, Mother
was living with a non-relative whose home was not suitable for children. Moreover, in
her brief, Mother does not point to any evidence that she had a safe and stable home at
the time of the termination trial. Rather, she points only to the apartment that she
previously had around November 2014. Respectfully, evidence of a purportedly suitable

       9
          As previously discussed, this language was amended to also include removal from a parent’s
“physical or legal custody.” Tenn. Code Ann. § 36-1-102(1)(A)(ii) (2019). This amendment likely
removes the anomalous result of making this ground inapplicable in the cases where a lack of suitable
home is most obvious and in need of remediation—when a parent has no home whatsoever for the child
to be placed.
                                                -9-
home years prior to trial is not sufficient when DCS presented evidence that Mother’s
living situation has been neither safe nor stable in the years since that time. In a similar
case, we have observed that a parent’s “past efforts cannot compensate for her present
[lack of housing.]” In re B.D., No. M2008-01174-COA-R3-PT, 2009 WL 528922, at *12
(Tenn. Ct. App. Mar. 2, 2009). Here, Mother was still living no more than a transient
lifestyle by the time of trial and lacked “residential stability”; as such, she did not have a
suitable home, despite reasonable efforts by DCS. See In re Seth B., No. E2017-00173-
COA-R3-PT, 2017 WL 4082484, at *9 (Tenn. Ct. App. Sept. 14, 2017) (affirming this
ground where the evidence showed the parents lived a transient lifestyle). Mother’s
inability to maintain suitable housing for any period of time demonstrates “a lack of
concern for the child to such a degree that it appears unlikely that they will be able to
provide a suitable home for the child at an early date[.]” Tenn. Code Ann. § 36-1-
102(1)(a)(ii). As such, this ground for termination is affirmed as to Ronon.

    2. Substantial Noncompliance with Permanency Plans

       Pursuant to Tennessee Code Annotated section 36-1-113(g)(2), a ground for
termination exists when “[t]here has been substantial noncompliance by the parent or
guardian with the statement of responsibilities in a permanency plan pursuant to title 37,
chapter 2, part 4[.]” Four permanency plans are at issue in this case, the first three
containing generally the same requirements.10 Mother was generally required to (1) abide
by court orders regarding child support; (2) maintain supervised visitation; (3) maintain
an appropriate home; (4) provide a legal means of income to support the family; (5)
maintain the children in an environment safe and free from harm; (6) establish an
appropriate bond with the children; (7) meet Mother’s mental health needs.

       The determination of whether there has been substantial noncompliance with a
permanency plan is a question of law, to be reviewed on appeal de novo with no
presumption of correctness. In re Valentine, 79 S.W.3d 539, 548 (Tenn. 2002).
Termination of parental rights under Tennessee Code Annotated section 36-1-113(g)(2)
“requires more proof than that a parent has not complied with every jot and tittle of the
permanency plan.” In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004). To
succeed under section 36-1-113(g)(2), DCS “must demonstrate first that the requirements
of the permanency plan are reasonable and related to remedying the conditions that
caused the child to be removed from the parent’s custody in the first place.” In re M.J.B.,
140 S.W.3d at 656–57 (citing In re Valentine, 79 S.W.3d at 547; In re L.J.C., 124
S.W.3d 609, 621 (Tenn. Ct. App. 2003)). Second, DCS must show that “the parent’s
noncompliance is substantial in light of the degree of noncompliance and the importance

        10
            The fourth permanency plan was geared toward adoption and therefore Mother had no
responsibilities under the plan. A fifth permanency plan was ratified immediately prior to the filing of the
termination petition. Mother argues that this plan should not be considered. DCS does not address this
plan in its brief and we therefore will not consider it.
                                                  - 10 -
of the particular requirement that has not been met.” In re M.J.B., 140 S.W.3d at 657
(citing In re Valentine, 79 S.W.3d at 548–49; In re Z.J.S., No. M2002-02235-COA-R3-
JV, 2003 WL 21266854, at * 12 (Tenn. Ct. App. June 3, 2003)).

       The trial court found that the requirements were both reasonable and related to the
remedying the conditions that led to the removal of the children. Mother, however, takes
issue with one requirement, that she establish a bond with the children. According to
Mother, this requirement is not related to the reasons that the children came into custody,
which Mother contends was merely due to environmental issues. We respectfully
disagree. According to the testimony, at the time of the removal, DCS was concerned not
only with the physical environment of Mother’s home, but also with the fact that she was
not spending any time with Ronon, focusing all her energy on Persephone.11 Although
this may have been reasonable under the circumstances, it was also reasonable for DCS
to ask Mother to establish a bond with both children.

       Mother also argues that this ground should be reversed because DCS did not
exercise reasonable efforts, citing In re R.L.F., 278 S.W.3d 305 (Tenn. Ct. App. 2008),
overruled by In re Kaliyah S., 455 S.W.3d 533 (Tenn. 2015). In 2015, however, the
Tennessee Supreme Court held that reasonable efforts were not a prerequisite to
termination under this ground. In re Kaliyah, 455 S.W.3d at 555 (“[W]e hold that, in a
termination proceeding, the extent of DCS’s efforts to reunify the family is weighed in
the court's best-interest analysis, but proof of reasonable efforts is not a precondition to
termination of the parental rights of the respondent parent.”). Thus, Mother’s allegation
that DCS did not make reasonable efforts is not a bar to the application of this ground,
but may be considered in the best interest analysis.

       Having reviewed the evidence, we conclude that the trial court did not err in
finding that Mother substantially failed to comply with the relevant permanency plans.
Here, as discussed above, Mother has failed to make lasting effort to establish and
maintain an appropriate home for the children; Mother’s continued lack of a stable
residence indicates that Mother has made little progress toward maintaining the children
in a safe environment. Indeed, even when Mother was offered homemaking services to
improve the condition of her home, she refused these services under the belief that she
did not need them. Mother also failed to make consistent child support payments, leading
to one instance of criminal contempt over her failure to do so. Moreover, Mother has not
been consistent with visitation, failing to provide appropriate snacks, diapers, and wipes
at many visitations, failing to appear at some scheduled visitations, and often failing to
appropriately supervise the children during the visits. Indeed, Mother was asked by DCS
to leave her phone in the car because she paid more attention to it than her children

        11
          Mother’s focus at the time of removal is in contrast to her apparent focus during the visitations
that took place in this case; rather than focus solely on Persephone during those visitations, Mother
focused primarily on Ronon.
                                                  - 11 -
during the precious few hours she was allowed to spend with them each month. Mother
also provided no proof to DCS or at trial of consistent employment. Rather, the proof
showed that Mother could not maintain any employment for a significant length of time.
Mother had also not made a significant effort to bond with the children. Even though
Mother did attend DCS provided parenting classes, she did not utilize the skills she
learned and she declined additional classes. She also missed many of the children’s
medical appointments. Mother did, however, participate in a mental health intake and
counseling. While Mother did make an effort toward some of the requirements of the
parenting plan, we must conclude that Mother’s efforts fell far short. Instead, her
noncompliance was “substantial in light of the degree of noncompliance and the
importance of the particular requirement that has not been met.” In re M.J.B., 140
S.W.3d at 657. As such, the trial court’s determination as to this ground is affirmed.

    3. Persistence of Conditions

       The final ground for termination found by the trial court is commonly referred to
as persistence of conditions or persistent conditions. For purposes of this case, the ground
of persistent conditions is defined as follows:

        The child has been removed from the home of the parent or guardian by
        order of a court for a period of six (6) months and:

                (A) The conditions that led to the child’s removal or other conditions
                that in all reasonable probability would cause the child to be
                subjected to further abuse or neglect and that, therefore, prevent the
                child’s safe return to the care of the parent or parents or the guardian
                or guardians, still persist;
                (B) There is little likelihood that these conditions will be remedied at
                an early date so that the child can be safely returned to the parent or
                parents or the guardian or guardians in the near future; and
                (C) The continuation of the parent or guardian and child relationship
                greatly diminishes the child’s chances of early integration into a
                safe, stable and permanent home; . . . .

Tenn. Code Ann. § 36-1-113(g) (2016).12

       “A parent’s continued inability to provide fundamental care to a child, even if not
willful, . . . constitutes a condition which prevents the safe return of the child to the
parent’s care.” In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576, at *20

        12
          This ground was amended following the filing of the petition at issue. See 2018 Tenn. Laws
Pub. Ch. 875 (H.B. 1856), eff. July 1, 2018. Again, we apply the version of the statute in effect at the time
the termination petition was filed.
                                                   - 12 -
(Tenn. Ct. App. Oct. 13, 2008) (citing In re T.S. & M.S., No. M1999-01286-COA-R3-
CV, 2000 WL 964775, at *7 (Tenn. Ct. App. July 13, 2000)). The failure to remedy the
conditions which led to the removal need not be willful. In re T.S. & M.S., 2000 WL
964775, at *6 (citing State Dep’t of Human Servs. v. Smith, 785 S.W.2d 336, 338 (Tenn.
1990)). “Where . . . efforts to provide help to improve the parenting ability, offered over a
long period of time, have proved ineffective, the conclusion is that there is little
likelihood of such improvement as would allow the safe return of the child to the parent
in the near future is justified.” Id. The purpose behind the “persistence of conditions”
ground for terminating parental rights is “to prevent the child’s lingering in the uncertain
status of foster child if a parent cannot within a reasonable time demonstrate an ability to
provide a safe and caring environment for the child.” In re A.R., No. W2008-00558-
COA-R3-PT, 2008 WL 461675, at *20 (Tenn. Ct. App. Oct. 13, 2008) (quoting In re
D.C.C., No. M2007-01094-COA-R3-PT, 2008 WL 588535, at *9 (Tenn. Ct. App. Mar. 3,
2008)).

       Mother again argues that the trial court erred in applying this ground because the
children were not removed from her home. As previously discussed, although Ronon was
removed from Mother’s home, Persephone was not. Accordingly, this ground for
termination is reversed as to Persephone.13

        Having reviewed the evidence, however, we affirm this ground for termination as
to Ronon. At the time of trial, the child had been removed from Mother’s custody for a
period of over four years pursuant to adjudication of dependency and neglect. In that
time, Mother’s situation did not improve, instead she moved from one unsuitable home to
another, never making any real progress. Indeed, even when resources were offered to
Mother by DCS, she refused some services under the belief that she did not need help,
only to claim that DCS did not do enough to help her in her appellate brief. Based on the
evidence presented, the conditions that led to the child’s removal, particularly the lack of
safe, stable housing and a means of support, have not been remedied and appear unlikely
to be remedied in the near future. These conditions make Mother’s home unsafe and
prevent Ronon from being adopted by Foster Family, the family that Ronon has known
for the majority of his life. As such, there is ample evidence in the record to support this
ground for termination as to Ronon.

                                             B. Best Interest

      Having determined that at least one ground for termination is supported by clear
and convincing evidence as to each child, we proceed to consider whether clear and

        13
          Again, recent amendments alter the language to add that removal from the home or from “the
physical or legal custody” of the parent is sufficient for purposes of this ground. Tenn. Code Ann. § 36-1-
113 (g)(3)(A) (2019).

                                                  - 13 -
convincing evidence supports the trial court’s determination that termination of Mother’s
parental rights is in the children’s best interests. “Upon establishment of a ground for
termination, the interests of the child and parent diverge, and the court’s focus shifts to
consider the child’s best interest.” In re Audrey S., 182 S.W.3d 838, 877 (Tenn. Ct. App.
2005). Even where a parent is unfit, termination may not necessarily be in the best
interests of the child. Id.

       Tennessee’s termination statute lists the following factors to be used in the best
interest analysis:

      (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, controlled substances or controlled substance
      analogues 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).

      The Tennessee Supreme Court has explained that:

                                          - 14 -
       Facts considered in the best interests analysis must be proven by a
       preponderance of the evidence, not by clear and convincing evidence. After
       making the underlying factual findings, the trial court should then consider
       the combined weight of those facts to determine whether they amount to
       clear and convincing evidence that termination is in the child’s best
       interests. When considering these statutory factors, courts must remember
       that the child’s best interests are viewed from the child’s, rather than the
       parent’s, perspective. Indeed, a focus on the perspective of the child is the
       common theme evident in all of the statutory factors. When the best
       interests of the child and those of the adults are in conflict, such conflict
       shall always be resolved to favor the rights and the best interests of the
       child.

In re Gabriella D., 531 S.W.3d 662, 68182 (Tenn. 2017) (internal citations omitted).
Furthermore, “[a]scertaining a child’s best interests does not call for a rote examination”
of the statutory factors. In re Audrey S., 182 S.W.3d at 878. The analysis requires “more
than tallying the number of statutory factors weighing in favor of or against termination.”
In re Gabriella D., 531 S.W.3d at 682 (citing White v. Moody, 171 S.W.3d 187, 19394
(Tenn. Ct. App. 2004)). “The facts and circumstances of each unique case dictate how
weighty and relevant each statutory factor is in the context of the case,” and the analysis
“must remain a factually intensive undertaking.” In re Gabriella D., 531 S.W.3d at 682.
Thus, “[d]epending 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.” Id.
(citing In re Audrey S., 182 S.W.3d at 878). In undertaking this analysis, the court must
examine all of the statutory factors, as well as other relevant proof put forth by the
parties. Id.

       As to the first two factors, Mother argues that she has made a lasting adjustment of
circumstances to make it safe and in the child’s best interest to be in her home, citing her
prior arguments as to suitable home and persistence of conditions. See Tenn. Code Ann. §
36-1-113(i)(1) & (2). Respectfully, we cannot agree. As we previously held, despite
DCS’s reasonable efforts, Mother has made no lasting progress in providing a safe and
stable home life for the children in the nearly five years that they have been in DCS
custody. These factors weigh heavily in favor of termination.

       Mother’s visitation history is also troubling. See Tenn. Code Ann. § 36-1-
113(i)(3). The evidence shows that Mother missed many visitations, sometimes without
appropriate notice. Mother also failed to attend many of the scheduled medical
appointments with the children. When Mother did visit, she was often inattentive and
more concerned with her phone than her children. She also failed to appropriately parent
Persephone, creating dangerous situations. As a result, Mother does not have a
meaningful relationship with the children. See Tenn. Code Ann. § 36-1-113(i)(4). The
proof shows that Foster Mother is the parent that the children look to for support, even
                                         - 15 -
when Mother is present. The children are strongly bonded to their foster family and a
change in caretakers would be detrimental to their well-being. See Tenn. Code Ann. § 36-
1-113(i)(5). Here, Mother made no effort to learn to take care of Persephone’s medical
needs. Instead, Persephone has relied on foster family for all but three months of her
life.14 Both children are happy and healthy with their new family, where their emotional
and medical needs are provided for. By the time of trial, even Ronon had lived with
Foster family for longer than he had been in Mother’s custody. Moreover, Mother’s
physical environment still has not been shown to be safe or stable. See Tenn. Code Ann.
§ 36-1-113(i)(5), (7). As such, these factors support termination.

       Although there are no abuse allegations in this case, the record does show that
Mother neglected Ronon by placing him with relatives who could not financially support
him and failing to provide necessities. See Tenn. Code Ann. § 36-1-113(i)(6). There was,
however, no evidence of drug abuse or criminal activity in Mother’s home. See Tenn.
Code Ann. § 36-1-113(i)(7). Although the trial court rejected DCS’s attempt to find
Mother mentally incompetent to care for the children, the trial court did state that the
findings of the mental examination were troubling. Still, the evidence was somewhat
unclear as to whether Mother was appropriately seeking counseling and medication to
treat her mental health issues. See Tenn. Code Ann. § 36-1-113(i)(8). Mother did not,
however, consistently pay child support. See Tenn. Code Ann. § 36-1-113(i)(9).

       From the totality of the circumstances, we conclude that DCS presented clear and
convincing evidence that termination is in the children’s best interests. Despite nearly
five years to obtain employment and suitable housing, Mother was no closer to providing
these necessities at trial as she was at the time of the removal. During the years of this
removal, Mother also made little effort to maintain a relationship with her children,
choosing to spend her time with the children on her phone rather than engage with them.
On the other hand, the children are happy and their health is improving in a home that
provides for their needs. Foster Family also wishes to adopt the children, providing them
the stability that is sorely lacking from Mother’s life. As such, the trial court’s best
interest finding is affirmed.

                                       IV.    CONCLUSION

        The judgment of the Lewis County Circuit Court is reversed in part and affirmed
in part. The termination of Cassandra G.’s parental rights is affirmed as modified. Costs
of this appeal are taxed to Appellant Cassandra G., for which execution may issue.


       14
           And during those three months prior to foster care, much of Persephone’s care was done by
Vanderbilt Hospital. Indeed, Mother refused to even participate in the 48-hour rooming-in period that
would have allowed Persephone to be returned to her, had, of course, Mother had an appropriate home to
return to.
                                               - 16 -
         _________________________________
         J. STEVEN STAFFORD, JUDGE




- 17 -
