                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                  On-Briefs February 6, 2003

 IN THE MATTER OF: R.L.H., A Child under Eighteen (18) Years of Age,
STATE OF TENNESSEE DEPARTMENT OF CHILDREN’S SERVICES v.
                 DARLENE MEDLEY HALL

                A Direct Appeal from the Juvenile Court for Franklin County
                    No. J00721     The Honorable Floyd D. Davis, Judge



                       No. M2002-01179-COA-R3-JV - Filed June 3, 2003


Department of Children’s Services filed petition to terminate parental rights of mother of abused,
dependent and neglected minor child. Department’s termination petition was based on allegations
of abandonment, mother’s failure to substantially comply with a permanency plan, the removal of
the child for at least six months with little likelihood that the conditions causing removal would be
remedied, and the best interests of the child. Juvenile Court granted petition terminating mother’s
parental rights. Mother appeals. For the following reasons, we affirm.

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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., joined, and
W. FRANK CRAWFORD , P.J., W.S., dissents with separate opinion.

John R. Colvin, Winchester, For Appellant, Darlene Medley Hall

Paul G. Summers, Attorney General and Reporter, Douglas Earl Dimond, Assistant Attorney
General, For Appellee, State of Tennessee Department of Children's Services

                                              OPINION

                                   Facts and Procedural History

        This is a termination of parental rights case. The petition was filed to terminate parental
rights to two children, J.W.M. and R.L.H., and was filed against both the mother, Darlene Medley
Hall (“Hall”), and the natural father, Donald Ray Hall (“father”). The juvenile court initially
terminated father’s parental rights to both children and Hall’s parental rights to J.W.M., and there
is no appeal from this ruling, and it is not included in this appeal. Therefore, our review of the
pleadings and the proof will be in reference to R.L.H. as the sole subject of the trial court proceeding.
R.L.H. (d/o/b 10/2/91) was originally removed from Hall’s care and placed in the custody of the
Tennessee Department of Children’s Services (“DCS”) in January 1998, upon allegations that Hall’s
live-in boyfriend sexually abused R.L.H. In November 1998, R.L.H. was placed in the custody of
father but was again removed to DCS’s custody in September 1999 based on allegations that father
physically abused minor child.1 R.L.H. was placed in a therapeutic foster home and at the time of
trial was still in the home. He has a learning disability and a language problem and receives special
education services. He has post-traumatic stress disorder and is receiving therapeutic treatment for
that disorder.
        Hall is in her mid-thirties and the mother of three children. None of these children are
currently in her custody. Hall was diagnosed as mentally retarded at a young age, and as such, has
received Social Security Disability since childhood. Hall’s monthly income consists of
approximately $505.00 in disability payments and $11.00 in food stamps. Hall is unemployed, and
has not had a job in several years.
        DCS drafted a Permanency Plan on October 15, 1999. The goal of this original plan was to
“return” R.L.H. to Hall’s custody. As part of this plan, DCS listed several “barriers to permanency,”
including Hall’s failure to report physical abuse by father despite knowledge of the bruises, and her
continued cohabitation and/or association with a known or suspected child abuser. To guide Hall
in overcoming these barriers, DCS also included a list of specific services to be provided, and actions
to be taken to facilitate return of the child. Specifically, DCS required Hall and R.L.H. to undergo
individual counseling to address abuse and behavior issues, and further mandated that Hall attend
parenting classes, participate with her case manager or another professional to develop a list of age
appropriate behavior rules for the minor child, learn techniques to enforce these behavior rules, admit
guilt or responsibility for her role in allowing past abuse to persist, and draft a letter to R.L.H.
accepting responsibility for her failure to protect the minor child from said abuse. Successful
completion of the counseling and treatment requirements was slated for April 2000. Hall signed the
plan on October 22, 1999.
        On December 5, 2000, DCS filed a petition to terminate Hall’s parental rights and those of
the father as to minor children R.L.H. and J.W.M.2 DCS based its petition to terminate mother and
father’s parental rights as to the minor children on the following grounds: (1) abandonment pursuant
to Tennessee Code Annotated section 36-1-113(g)(1); (2) substantial noncompliance with an
established permanency plan as required in Tennessee Code Annotated section 36-1-113(g)(2); and
(3) the presence of persistent conditions that led to the child’s removal, “little likelihood that these
conditions will be remedied at an early date so that the child can be safely returned to the parent,”
and proof that continuation of the parent-child relationship “greatly diminishes the child’s chances
of early integration into a safe, stable and permanent home,” according to Tennessee Code Annotated


         1
            These ab use allegations were based on two separate rep orts that b ruises we re discovered o n R.L.H.’s body,
the first report noting that bruises were seen on minor ch ild’s hips, legs, and buttocks, and the second asserting that
bruises were found on and around the child’s head.

         2
             Hall’s oldest son, minor child J.W.M., was removed from her care in May 1991, as a dependent and neglected
child. Legal custody of J.W.M. was granted to child’s great aunt and uncle. In October 1998, J.W.M. was removed from
this home and returned to the custody of DCS upon allegations of physical abuse at the hands of a unt a nd uncle . J.W.M.
re ma in s in fo ster care to th is d ate. H all is no t appea ling the te rmination of he r pare nta l rights a s to J.W .M .

                                                             -2-
section 36-1-113(g)(3)(A). The petition also alleges that termination is in the best interest of the
child.
        A hearing was held on January 18, 2001 to review whether DCS should remain in temporary
custody of R.L.H. and J.W.M. By Order entered March 5, 2001, the court determined that the minor
children should remain in the temporary custody of DCS, and appointed counsel to represent Hall
in the upcoming termination proceeding. The court further noted father’s failure to appear at the
January 18 hearing.
        On January 23, 2001, DCS drafted a revised permanency plan which Hall ultimately refused
to sign. Pursuant to this plan, the permanency goal was changed from “return to parent” to adoption.
DCS asserted several new barriers to permanency, including Hall’s failure to comply with, or work
toward the completion of, the goals set forth in the original permanency plan and her continued
cohabitation with a man who had been indicated by DCS for sexually abusing R.L.H.
        As scheduled, a hearing on DCS’s termination petition was held before the juvenile court on
March 7, 2001. During this hearing, Hall testified that she was currently living with a friend in
Belvidere, Tennessee, as she had been evicted from her apartment in February 2001 for failure to pay
rent.3 Hall informed the court that she had ceased living with the indicated sex abuser approximately
two months prior to the March 7th hearing.
        When questioned about her failure to comply with the requirements set forth in both the
original and revised permanency plans, Hall admitted that she had not attended any of the mandated
counseling sessions,4 had not yet attended the requisite number of parenting classes,5 and
acknowledged that she had not written a letter to R.L.H. accepting responsibility for her failure to
protect him from continued physical and sexual abuse.




         3
           Hall testified that she was unable to make her rental payments because she was financially supporting her live-
in boyfriend. Appellant noted that she borrowed money from a finance com pany to help her boyfriend p ay fines, and
also owed a debt to a seco nd finan ce compa ny on m oney or credit secured for the purchase of a television, air
conditioner, and washing machine.

         4
             Hall explained that she has not attended any counseling sessions because she did not have transportation.

         5
           Hall first testified that she had attended a parenting class in Decherd, Tennessee. Upon further questioning,
appellant noted:

                    Q: Oka y. So have you done anything as far as on your plan that you recall doing?
                    I mean, have you done anything?

                    A: I’m sup posed to be go ing at the first – second T uesday in April to the parenting
                    classes.

                    Q: O kay. So you haven’t started that?

                    A: N ot yet.

                                                             -3-
        The record in this case includes a report from attorney Glen A. Isbell (“Isbell”), the appointed
Guardian ad Litem for minor children R.L.H. and J.W.M.6 In his report, Isbell confirms that Hall
was evicted from her apartment and is currently living with friends in Belvidere, Tennessee, until
she can find a place of her own. Isbell also reports that Hall was living with her boyfriend, the
indicated sex abuser, until just prior to March 6, 2001.
        Addressing the issue of Hall’s noncompliance with the original or revised permanency plans,
Isbell notes that appellant had not completed any task listed in the revised permanency plan that she
signed on April 10, 2000.7 Isbell also reported that Hall had not attended any counseling sessions
or parenting classes as of March 6, 2001, but noted that Hall blamed her failure to fulfill these
obligations on the fact “that she did not know what she was supposed to do, or the department never
set the classes up, however she would like to start taking the parenting classes in April in
Townsend.” Isbell further reiterated that Hall maintained regular visitation with R.L.H., but not with
J.W.M.
        Isbell’s report also addressed allegations of physical abuse by father, and the effects that this
abuse, and Hall’s failure to prevent it, had on R.L.H.’s behavior. Isbell noted:
                In reviewing the file as to [R.L.H.], there are reports that the father
                DONALD RAY HALL, physically abused [R.L.H.]. It is my
                understanding that the abuse was inflicted by the father and was
                known by the mother, however she did not report this abuse or take
                the necessary steps to protect her child. [R.L.H.] has some of the
                same problems by acting out and behavioral problems as [J.W.M.]
                currently maintains. He will continue to need the necessary
                counseling and treatment in the future.

At the conclusion of his report, Isbell offered the following recommendation:

                   There is concern as to whether the mother, DARLENE MEDLEY
                   HALL, is capable of meeting the needs of these children and
                   protecting her children from themselves and the public. She has
                   recently been evicted from her apartment and is currently living with
                   a friend. The mother needs to get her life in order, before she should
                   be allowed to have these children back in her home. I think she has
                   problems herself, which she needs to address such as, stable
                   environment for the children, counseling, undesirable companions
                   that these children may be exposed to, and whether these children are
                   more important than these undesirable companions. Without the
                   availability of a psychological report on the mother, there is concern


        6
           Isbell noted that he had not spoken to either of the minor children prior to submitting this report. The
Guardian ad Litem’s report was based on his conversations with Hall and the DCS caseworker assigned to minor
children’s case, and a review of all relevant files and exhibits.

        7
            According to this report, the juvenile court approved the April 2000 permanency plan on April 19, 2000.

                                                         -4-
                 that the mother is borderline mentally challenged. I believe that she
                 does not understand or realize the seriousness or consequences that
                 are presently before her. There is concern as to whether she is
                 mentally capable of completing the necessary steps in getting her
                 children returned. She has two (2) children that will require
                 counseling and treatment for years to come. I believe the mother
                 loves these children and she wants the children back in her home,
                 however, the time is now in determining what and/or who is more
                 important. This Court should take a look at whether this mother will
                 be mentally and physically capable of raising these children, which I
                 am unable to do at this time.
         From the evidence presented at this March 7th hearing, the juvenile court found clear and
convincing evidence for grounds for termination of Hall’s parental rights to the older child, J.W.M.,
but did not make a finding as to R.L.H., instead continuing the case to a later date pending
completion of a psychiatric evaluation of Hall’s competency to parent R.L.H. On May 1, 2001, the
juvenile court filed an order in two parts: the first part is styled “Default Judgment,”8 and the second
part is styled “Termination Of Parental Rights And Final Decree Of Guardianship As To [J.M.] And
Partial Guardianship As To [R.H.].” The second part terminated the parental rights of both
respondents, Darlene Hall and Donald Ray Hall, as to J.W.M. and terminated the parental rights of
Donald Ray Hall to R.L.H. There has been no appeal from this ruling.
         On May 31, 2001, J. Trevor Milliron, Ph.D. (“Dr. Milliron”), performed a psychological
evaluation of Hall upon referral by DCS. According to Dr. Milliron’s report, “[t]he purpose of this
evaluation was to assess this individual’s level of intellectual functioning and emotional stability.
This evaluation also obtained information about how her personality dynamics impact her parenting
abilities.”
         In his evaluation, Dr. Milliron reported that Hall could barely read, was poorly groomed,
experienced difficulty concentrating, and “struggled with many simple questions, including her own

         8
             The o rder states:

                    In this cause, on Motion of the Petitioner, and it appearing to the Court that service
                    of process by publication has been duly made upo n the Defendant, Donald Ray
                    Hall, that said Defendant has failed to appear and make defense to said petition
                    within the time required by law, IT IS ORDER ED that said petition be taken as
                    confessed to by said Defendant Donald R ay Hall and the cause set for hearing ex
                    parte.

W e note that on the face of the petition to terminate parental rights Donald Ra y Hall’s address in Winchester, Tennessee
is shown. W e also note that the record includes a copy of the permanency plan filed in the case which lists Donald Ray
Hall’s address in Winchester, Tennessee, along with his telephone number. Although there may be other parts of the
record pertaining to the matter against Donald Ray H all that are not included in the record before us that might
substantiate service of process by publication, there is nothing in the record before us to indicate suc h a situation. W e
also note that there is nothing in the record to indicate that proper notice of the motion for judgment by default, if there
was ever a motion, was served on Donald Ray Hall pursuant to the provisions of Tenn.R.Civ.P. 55.01. On remand, the
status of the case against Donald Ray Hall should be reviewed.



                                                             -5-
name.” Dr. Milliron noted that, at the time of this evaluation, Hall was living with her new
boyfriend. With regard to Hall’s compliance with the permanency plan requirements, Dr. Milliron
recounted that appellant informed him that she had attended six parenting classes, maintained regular
visitation with R.L.H., and had participated in one counseling session, after which the counselor
reportedly informed her that further sessions were unnecessary.
        Dr. Milliron utilized a series of aptitude and intellectual functioning tests to evaluate Hall,
and, based on Hall’s performance on these tests, Dr. Milliron concluded that she appears to be
experiencing “some mild reactive depression and anxiety symptoms directly related to loss of
custody of her children. She also appears to meet both the functional and intellectual criteria for
mild mental retardation.” Dr. Milliron closed his evaluation with the following summary and
recommendations:
                Ms. Hall expressed strong positive emotion toward [R.L.H.] during
                the interview. She did admit that [R.L.H.] was a challenging child for
                her to parent due to his quick temper. She stated she believed she had
                learned effective techniques during her parenting classes and was
                eager to try these techniques on [R.L.H.]. Ms. Hall’s ability to
                function is substantially limited, primarily by her mental retardation.
                Parenting a challenging child would be difficult for Ms. Hall under
                the best of circumstances, but is particularly problematic with the lack
                of substantial family and community support. She has been
                ineffective in protecting [R.L.H.] from harm in the past and would be
                unlikely to be able to do so in the future due to her cognitive
                limitations without this kind of substantial support. In her favor, she
                does appear to be motivated to do what is necessary to regain custody,
                although she has been unable to find an alternative living situation.
                Any placement of [R.L.H.] back into his mother’s care should be
                accompanied by both professional (continued counseling for [R.L.H.]
                and parenting classes for Ms. Hall) and family commitments of
                ongoing support.

       Upon the juvenile court’s request, Dr. Milliron submitted an addendum to his evaluation on
August 3, 2001, stating his opinion as to whether Hall could be trained to provide minimal care for
R.L.H. Dr. Milliron cited several damaging factors:
              1. - Severe cognitive limitations as evidenced by history and IQ
              scores
              2. - Lack of adequate family and community support
              3. - Unstable living arrangements
              4. - History of interpersonal difficulties and volatile relationships
              5. - Inability to read, drive or find suitable employment
              6. - A clear pattern of multiple failures to provide minimal protection
              of any of her three children over a period of several years
              7. - Poor insight based on her IQ scores, Family Apperception Test,
              and Interview


                                                 -6-
               8. - Evidence, based on her self-report, that her son, [R.L.H.], would
               be a challenging child to raise by any parent due to frequent
               behavioral problems
               9. - Substantial depression and anxiety symptoms
               10. - Inability to properly stay on medication for anxiety as prescribed
               by physician

Considering these factors in their totality, Dr. Milliron offered the following opinion:

               No one of the above mentioned problems, including her cognitive
               limitations, would preclude her ability to be trained to provide
               minimal care of her child. However, when considered together, Ms.
               Hall simply has many circumstances working against her at once. It
               is my considered opinion that at this current time and the immediate
               foreseeable future, Ms. Darlene Hall is highly unlikely to be able to
               be adequately trained to provide minimal standards of care for her
               child.

       On September 26, 2001, a supplemental hearing was held before the juvenile court to
consider Dr. Milliron’s psychological evaluation and addendum. In this hearing, Ms. Hall stated to
the court that she understood she was a slow learner but she was going to school at Townsend
School, taking reading, writing, and math, and that she had been rather steadfast in her support of
R.L.H. The following exchange took place at this hearing:
                MS. HALL: I have been standing behind him since he’s been in DCS
                custody and stuff, been trying to get him through it and stuff.

               THE COURT: Of course, my problem is I hate to terminate parental
               rights when a parent is trying if there’s any chance.

               MS. HALL: I’m doing my best.

               THE COURT: I think I told you that the last time you were here. And
               based on what these reports are saying there will at least be very,
               very, very little option of what to do. I don’t know why they came to
               these conclusions. I read what they say and they’re not very good.

               MS. HALL: I’m a slow learner and I’m going to school up here at
               Townsend School for my reading and writing and math and stuff. I
               was in special ed classes all the way through school.

               THE COURT: And the worst part about the decision I may have to
               make is once it’s made it’s almost irreversible. I mean, I know of
               very little things that would reverse it because all kinds of things start


                                                  -7-
               happening so far as this child is concerned. But on the other hand,
               based on these reports I can’t in good conscience say that there’s any
               chance that you would ever get this child back. I mean, I honestly
               wish there was – I was hoping that this doctor when I sent you back
               – because you’ve tried – would give us some hope. But it doesn’t
               look very favorable. I’m sure Mr. Colvin has gone over with you
               what Dr. Milliron is saying.

       On April 11, 2002, the court entered its final decree terminating Ms. Hall’s parental rights
to R.L.H. The final decree states in pertinent part:
             And thereupon, this cause came on to be further and finally heard on
             the 26th day of September 2001, before the Honorable Floyd Davis,
             Judge of the Juvenile Court of Franklin County, Tennessee.
             Respondent Donald Ray Hall’s parental rights were terminated on
             February 22, 2001. Having reviewed the psychological reports as
             requested and based upon previous testimony, statements of counsel
             upon the sworn petition of the State of Tennessee, Department of
             Children’s Services, proof introduced at the hearing and the entire
             record, from all of which the Court finds by clear and convincing
             evidence that it is in the best interest of the said child and the public
             that all of the parental rights of the Respondent to the said child be
             forever terminated and that the complete custody, control and
             guardianship of the said child should now be awarded to the State of
             Tennessee, Department of Children’s Services with the right to place
             said child for adoption and to consent to any adoption in loco
             parentis. This decree will have the effect of terminating all the rights,
             responsibilities, and obligations of the Respondent to the said child
             and of the said child to the Respondent arising from the parental
             relationship, and the Respondent is not hereinafter entitled to notice
             of proceedings for the adoption of said child by another nor have any
             right to object to such adoption or otherwise to participate in such
             proceedings, or hereafter, at anytime, to have any relationship, legal
             or otherwise, with said child.

(emphasis added).

                                                Issue

        Hall filed a Notice of Appeal, and presents for review the sole issue of whether there is clear
and convincing evidence of grounds for termination of her parental rights and that termination is in
the child’s best interest.




                                                 -8-
                                                Standard of Review
        Pursuant to Tennessee Code Annotated section 36-1-113(c)(1)(2) (2001), termination of
parental rights must be based on a finding by clear and convincing evidence that grounds for
termination exist, and that such termination is in the best interest of the child. Since this case was
tried by the trial court sitting without a jury, we review the case de novo upon the record with a
presumption of correctness of the findings of fact by the trial court. Unless the evidence
preponderates against the findings, we must affirm, absent error of law. T.R.A.P. 13(d). “Where the
trial judge has seen and heard the witnesses, especially if issues of credibility and weight to be given
oral testimony are involved, considerable deference must be accorded those circumstances on
review.” McCaleb v. Saturn, 910 S.W.2d 412, 415 (Tenn. 1995) (citing Townsend v. State, 826
S.W.2d 434, 437 (Tenn. 1992)).
                                         Law and Analysis
       It is a well established premise that “[a] parent has a fundamental right to the care, custody
and control of his or her child.” Dep’t. of Children's Servs. v. Wiley, No. 03A01-9903-JV00091,
1999 WL 1068726, at *3 (Tenn. Ct. App. Nov. 24, 1999) (citing Stanley v. Illinois, 405 U.S. 645,
651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)). A parent’s right to the care, custody, and control of
his or her child is not absolute and may be terminated if justified by clear and convincing evidence
under the applicable statute. See In re C.W.W., N.W.W., Z.W.W., & A.L.W., 37 S.W.3d 467, 473
(Tenn. Ct. App. 2000) (citing Wiley, 1999 WL 1068726, at *3 (citing Santosky v. Kramer, 455 U.S.
745, 769, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982))). As stated, termination of parental rights must
be based on a finding, by clear and convincing evidence, that the grounds for termination of rights
have been established and that termination of parental rights is in the best interest of the child.
T.C.A. § 36-1-113(c)(1) and (2). Clear and convincing evidence has been defined as evidence which
“‘eliminates any serious or substantial doubt concerning the correctness of the conclusion to be
drawn from the evidence.’” In the Matter of: C.D.B., S.S.B., & S.E.B., 37 S.W.3d 925, 927 (Tenn.
Ct. App. 2000) (citing O’Daniel v. Messier, 905 S.W.2d 182, 186 (Tenn. Ct. Ap. 1995)). In
addition, in order to terminate parental rights there must be a showing that the parent is unfit or that
substantial harm to the child will result if the parental rights are not terminated. In Re Swanson, 2
S.W.3d 180, 188 (Tenn. 1999) (citations omitted).
          Tennessee Code Annotated section 36-1-113(g) (2001) sets forth the legal grounds upon
which termination of an individual’s parental rights may be based. “[T]he existence of any one of
the statutory bases will support a termination of parental rights.” In re C.W.W., N.W.W ., Z.W.W.,
& A.L.W., 37 S.W.3d 467, 473 (Tenn. Ct. App. 2000) (citations omitted).
          In its petition to the juvenile court, DCS listed several grounds for termination and further
asserted that termination is in the best interest of the child under Tennessee Code Annotated section
36-1-113(g)(7)(A)(ii) (1996). At the time this petition was filed, Tennessee Code Annotated section
36-1-113(g)(7) permitted termination where the parent is incompetent to adequately provide for the
care and supervision of a child because of an impaired mental condition and, pursuant to subdivision
(ii), cited in DCS’s petition, termination is in the best interests of the child.9




          9
              Termination based on mental incompetence of the parent is currently governed by T.C.A. § 36-1-113(g)(8)
(2001).

                                                          -9-
        Although DCS did not specifically refer to mental impairment or incompetence as grounds
for termination in its petition, it appears that its citation to Tennessee Code Annotated section 36-1-
113(g)(7) was sufficient to alert Hall to these grounds. Our conclusion is supported by the fact that
counsel for both parties addressed the competency issue in opening statements at the March 7, 2001
hearing. We note also that the court reserved judgment on the termination issue at the M arch 7th
hearing pending a psychological evaluation of Hall. Additionally, we note that Hall failed to raise
an objection to the incompetency issue/grounds at either the March 7 or September 26 proceedings.
        Tennessee Code Annotated section 36-1-113(g)(7) (1996) provides:
                (A) The chancery and circuit courts shall have jurisdiction in an
                adoption proceeding, and the chancery, circuit, and juvenile courts
                shall have jurisdiction in a separate, independent proceeding
                conducted prior to an adoption proceeding to determine if the parent
                or guardian is mentally incompetent to provide for the further care
                and supervision of the child, and to terminate the parent’s or
                guardian’s rights to the child.

               (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 (g)(7)(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.

        From his comments at the September 26, 2001 proceeding, it seems that the juvenile court
judge based his decision to terminate Hall’s parental rights on the grounds of mental incompetence
on the evaluation and addendum opinion of Dr. Milliron. In forming his opinion, Dr. Milliron relied
upon the results and information gleaned from the tests and interviews conducted on May 31, 2001.
Dr. Milliron specifically considered several factors in reaching his final opinion that Hall was unfit
to care for her child, including her below average IQ scores, severe cognitive limitations, unstable
living conditions, lack of adequate support from outside sources, inability to read or drive, “failure
to provide minimal protection of any of her three children over a period of several years, and history


                                                 -10-
of relationships with known or suspected abusers.” Based on all of these factors, Dr. Milliron
articulated the following opinion as to Hall’s ability to provide adequate care to R.L.H.:
                No one of the above mentioned problems, including her cognitive
                limitations, would preclude her ability to be trained to provide
                minimal care of her child. However, when considered together, Ms.
                Hall simply has many circumstances working against her at once. It
                is my considered opinion that at this current time and the im mediate
                foreseeable future, Ms. Darlene Hall is highly unlikely to be able to
                be adequately trained to provide minimal standards of care for her
                child.

(emphasis added).

         We are particularly concerned with two of the factors cited by Dr. Milliron in support of his
opinion. First, we note that there is considerable evidence in the record to indicate that Hall knew
of, or at least suspected, that R.L.H. was being physically and sexually abused, at the time the abuse
was taking place. Despite this knowledge, Hall failed to contact the proper authorities, or take any
other reasonable measures to protect R.L.H. from further abuse.
         Hall does not deny that she was aware of the physical abuse inflicted upon R.L.H. by his
father, but she remains skeptical as to her son’s sexual abuse claims. The following testimony from
the March 7 hearing is convincing evidence that Hall does not fully acknowledge or credit R.L.H.’s
allegations of sexual abuse:
               Q: When [R.L.H.] first was taken into custody a couple of years ago
               for the sexual abuse, did you believe [R.L.H.] when he said that [your
               boyfriend] had done that to him?

               A: No, I didn’t.

               Q: And do you believe that now?

               A: In a way I do.

               Q: But in a way you don’t?

               A: Right.

               Q: What about when [R.L.H.] said that his father beat them?

               A: I believed him. I saw pictures where he had bruises on his legs.

       We have concern regarding Hall’s mental and emotional capacity to properly care for R.L.H.,
concern supported by the fact that none of appellant’s three children are currently in her custody.
At least two of Hall’s children, R.L.H. and J.W.M., were removed from her custody as dependent
and neglected children. Moreover, Hall’s parental rights as to J.W.M. were terminated without an

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appeal. This documented history of neglect is evidence that Hall was incapable of providing
adequate care to R.L.H. at the time of trial.
        Hall introduced evidence to refute Dr. Milliron’s opinion that appellant could not be
adequately trained to provide even minimal care to R.L.H., by a brief letter from Sandra Langley
(“Langley”) of Highland Rim Mental Health Center. In this letter, Langley concludes that Hall does
not meet the criteria for diagnosis of mental illness, and further notes that “her inability to parent her
son, is not a problem of mental health, but her inability to enforce boundaries and limits.” There is
no indication in the record as to Langley’s professional qualifications, and no evidence to determine
how many times Langley counseled/interviewed Hall, the basis for Langley’s opinion, or the
measures or tests utilized to evaluate appellant.
        The trial court, in its comments on September 26, 2001, found that all ten reasons that Dr.
Milliron listed were horrible, but “the most damaging part, it is the last line, which says, it is my
considered opinion that at this current time and the immediate foreseeable future Ms. Darlene Hall
is highly unlikely to be able to be adequately trained, to provide minimal standards of care for her
child.” The trial judge also noted that the immediate foreseeable future might last forever. We
agree. The record clearly indicates that Hall has many factors which hinder her ability to provide
minimal levels of care and protection to her special needs son. Unfortunately, due to Hall’s limited
intelligence, it is very unlikely that her cognitive limitations will ever improve to the level required
to properly care for R.L.H. As such, we find the trial court committed no error.
        We also find that there is clear and convincing evidence in the record to demonstrate that
there has been substantial noncompliance by Hall with respect to the permanency plan under
Tennessee Code Annotated section 36-1-113(g)(2). The permanency plan required Hall to attend
counseling, attend and participate in parenting classes, write a letter to R.L.H. accepting her failure
to protect him from abuse, and to develop a list of age-appropriate behavior rules. At the March 7,
2001 hearing, Marcia Ray, the team leader at the Department of Children’s Services, testified that
Hall did not attend the required counseling and that, to her knowledge, Hall had not taken the
required parenting classes. In his report, filed March 7, 2001, Isbell, the guardian ad litem, stated
that Hall “has not completed any of the tasks that the Department of Children Services has outlined
in the Permanency Plan.” Isbell went onto note that Hall stated that she had not been to counseling
or any parenting classes. Hall herself testified at the March 7, 2001 hearing that she had not done
any counseling and that she had yet to begin her parenting classes. In his evaluation conducted May
31, 2001, Dr. Milliron noted that Hall reported that she had attended one counseling session and six
parenting classes. Despite her efforts after the termination petition had been filed and a hearing
conducted, Hall did not take any action to comply with the Permanency Plan, other than visitation,
from October 15, 199910 until sometime between March 7, 2001 and May 31, 2001. Also, Hall never
wrote the required letter to R.L.H. accepting her failure to protect him from abuse. In addition, Hall
testified that she did not believe R.L.H. when he told her that her then-boyfriend had abused him.
Hall testified that, to this day, she does not completely believe R.L.H. One of the primary reasons
R.L.H. was taken away from Hall’s care was that he suffered abuse and she failed to take any action
to protect him or prevent further abuse. We find that Hall’s refusal to accept responsibility for her
role in failing to protect R.L.H., coupled with the fact that Hall waited well over one year to begin


        10
             Octo ber 1 5, 19 99 is the date listed on the initial plan.

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any type of required parenting classes, sufficient to find that Hall was in substantial noncompliance
with the permanency plan.
       After a finding that the grounds for termination have been established by clear and
convincing evidence, the court must then determine if termination is in the best interests of the child.
T.C.A. § 36-1-113(c)(2). Section 36-1-113(i) enumerates the following factors courts are to consider
in making the best interests determination:
        (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.
T.C.A. § 36-1-113(i)(2002). After reviewing the aforementioned factors, we agree with the trial
court that termination of Hall’s parental rights is in the best interests of R.L.H. R.L.H. is a special

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needs child who has specific learning, speech, and behavioral problems.11 Hall has consistently
failed to provide the stable environment which R.L.H. desperately needs. Hall’s sole support is
derived from social security, she has no prospects for employment in the near future, she has failed
to provide a safe and suitable home for R.L.H. in the face of abuse, and Hall had no suitable
residence for the child at the time of trial. In her favor, it is clear from the record that Hall made
regular visitations with R.L.H., and the record indicates that R.L.H. is anxious to continue such
visitation. Further, the representative of DCS testified that there was bonding between Hall and the
child. However, as this Court has previously held, “the development of a ‘relationship,’ without
more, is an insufficient basis to support a finding that it is not in the best interest of [the minor child]
to terminate his parents’ parental rights.” State of Tennessee Dept. of Children’s Services v. D.G.B.
and C.B., No. E2001-02426-COA-R3-JV, 2002 Tenn. App. LEXIS 647, *27 (Tenn. Ct. App. Sept.
10, 2002).
         In consideration of all the relevant factors, removing R.L.H. from Hall’s care and custody
offers R.L.H. his best chance at a healthy and productive life. See In the Matter of C.D.B., S.S.B.,
& S.E.B., 37 S.W.3d 925, 928 (Tenn. Ct. App. 2000). All reports indicate that R.L.H. is in need of
continued counseling and therapy and has been placed in a therapeutic foster home where he
currently resides under the care of trained foster parents. He is enrolled in school, and although he
still engages in inappropriate conduct on occasion (lying, stealing, disruptive behavior), he has
“made improvements in the areas of stealing and lying in the past few months” and has shown “some
progress” with regard to his behavior in school. Despite all he has been through, R.L.H. seems to
be adapting well. R.L.H. is approximately twelve years old at the present time and the “continuation
of the parent . . . and child relationship greatly diminishes [his] chances of early integration into a
safe, stable and permanent home.” See T.C.A. § 36-1-113(g)(3)(A)(iii).
         Under the record before us, we find that the evidence preponderates in favor of the trial
court’s finding of clear and convincing evidence that termination is in the best interest of the child.
Accordingly, the order of the trial court terminating Hall’s parental rights to R.L.H. is affirmed. The
case is remanded to the juvenile court for such further proceedings as may be necessary with respect
to our comments concerning the default judgment. Costs of the appeal are assessed against the
Appellant, Darlene Medley Hall.

                                                 ______________________________
                                                 ALAN E. HIGHERS, J.




        11
              According to the October 15, 1999 permanency plan, R.L.H. was diagnosed with Attention Deficit
Hyp eractivity Disorder, and re portedly functioned below grad e level.

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