                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                          Assigned on Briefs March 13, 2014

                                   IN RE D’VANTE P.

                  Appeal from the Juvenile Court for Bradley County
                    No. J-10-414    Daniel Ray Swafford, Judge




                 No. E2013-02148-COA-R3-PT-FILED-MAY 5, 2014


This is a termination of parental rights case, focusing on D’Vante P., the minor child
(“Child”) of Ashley C. (“Mother”) and Sylvester P. (“Father”). The Child was taken into
protective custody by the Tennessee Department of Children’s Services (“DCS”) on October
27, 2010, following investigation of lack of supervision in the home. On October 10, 2012,
DCS filed a petition to terminate the parental rights of both parents. The proceeding to
terminate Father’s parental rights subsequently became a separate action, and Father is not
a party to this appeal. Following a bench trial conducted on July 15, 2013, the trial court
granted the petition as to Mother upon the court’s finding, by clear and convincing evidence,
that (1) Mother had failed to substantially comply with the permanency plans and (2) the
conditions causing the removal of the Child into protective custody persisted. The court
further found, by clear and convincing evidence, that termination of Mother’s parental rights
was in the Child’s best interest. Mother has appealed. Discerning no error, we affirm.

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

T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., C.J., and D. M ICHAEL S WINEY, J., joined.

David K. Calfee, Cleveland, Tennessee, for the appellant, Ashley C.

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

                          I. Factual and Procedural Background

       DCS originally became involved with the Child’s family in September 2010 when
DCS received a referral alleging that D’Vante’s brother, J’Shon, was exhibiting behavior
problems at school. At the time, D’Vante was six years old, and J’Shon was seven years old.
The two boys have different biological fathers. An investigator with Children’s Protective
Services (“CPS”), Kaitlin Hair, visited the home on September 27, 2010. Ms. Hair testified
that when she interviewed Mother that day, Mother admitted to having difficulty controlling
J’Shon’s and D’Vante’s behavior. Mother told Ms. Hair that the children had started fires
in the carpet by playing with lighters and matches. Ms. Hair observed burn marks in the
carpet. The children told Ms. Hair during the initial investigation that Mother slept a great
deal during the day, left them without supervision while she slept, and did not respond when
they awakened her to ask for food. Ms. Hair explained that the problem had arisen when
Mother kept lighters and matches in her purse and left the purse within the children’s reach.
Ms. Hair acknowledged that during the initial investigation, she did not suspect Mother of
any substance abuse.

       Following this initial home visit, Ms. Hair completed an official referral to DCS. In
response, DCS developed a non-custodial permanency plan with Mother and the children’s
maternal grandmother. On September 30, 2010, the trial court approved and entered the
noncustodial plan, under which Mother’s responsibilities were to secure all lighters and
matches away from the children, stay awake during the hours the children were awake, take
her medication for epilepsy and anxiety as prescribed, and attend counseling. Mother’s
medical conditions requiring medication were due to a brain injury she suffered after
surviving a car accident in 1998 that resulted in epileptic seizures, anxiety, and pain. DCS
required Mother to undergo counseling because Mother and the children were coping with
the recent loss of a maternal great-grandmother with whom they had been close.

         Ms. Hair returned to the home on October 27, 2010, and interviewed the children
individually and separately. Both J’Shon and D’Vante reported that they were still playing
with lighters and matches and that in the past few days they had begun spraying perfume and
igniting it to make a torch. The children told Ms. Hair that Mother knew about their
activities. When Ms. Hair confronted Mother regarding the hazards, Mother adamantly
denied that the children had been allowed any access to lighters or matches. As both children
were in the room during Mother’s denial, they began to remind Mother that they in fact had
lit fires. According to Ms. Hair, Mother became extremely angry with the children for
“telling on her,” grabbed a jagged-edged switch from behind the couch, and threatened to
beat the children. While Ms. Hair left the room to call her supervisor, she could hear Mother

                                             -2-
continuing to threaten the children. When Ms. Hair informed Mother that the children were
going to be removed into protective custody, Mother became “extremely threatening and
yelling.” The maternal grandmother arrived during this incident and confirmed to Ms. Hair
that lighters and matches had continued to be within the children’s reach. Law enforcement
subsequently assisted in the removal and placement of the children into protective custody.

        DCS case manager Lisa Blankenship testified that she had worked with the Child
from the time he and his brother came into protective custody through the trial two years
later. During this time period, three permanency plans were established for the Child. The
first permanency plan was created on November 23, 2010, ratified by the trial court on
December 16, 2010, and set target goals for May 23, 2011.1 Mother’s responsibilities under
the first permanency plan were to obtain a working smoke detector; repair a broken, sharp-
edged window; complete parenting classes; address her physical health by keeping all
medical appointments and taking medication as prescribed; and complete a mental health
intake, following any resultant recommendations.

        According to Ms. Blankenship, Mother progressed satisfactorily toward the goals of
the first permanency plan through April 2011. She completed the needed safety repairs to
her home, maintained supervised visitation with both children, and attended parenting
classes. She reported seeing a medication management counselor at Hiwasee Mental Health
for assistance with managing her prescribed medications for seizures and anxiety. While
progressing under this permanency plan, Mother volunteered to undergo an alcohol and drug
assessment, although such an assessment had not been required of her at that time. In April
2011, however, Mother revealed to DCS that she was using marijuana, and Ms. Blankenship
testified that she informed the trial court of Mother’s admission. Nonetheless, DCS
scheduled supervised visitation in Mother’s home with an aim toward increasing visitation
until Mother and the children were prepared for an unsupervised trial home visit. A second
permanency plan, developed on May 20, 2011, and ratified by the trial court on May 26,
2011, set identical responsibilities for Mother as the first plan with a new goal target date of
October 15, 2012.

      The children were returned to Mother’s home for a trial home visit in early June 2011.
When Ms. Blankenship visited Mother’s home after the children were returned, however,
D’Vante and J’Shon informed Ms. Blankenship that Mother continued to use marijuana in
the home. In July 2011, DCS personnel requested that Mother submit to a drug screen while


        1
         Other than the ratified permanency plans, no documentation of the dependency and neglect
proceedings was admitted as evidence during the termination proceedings. We note that according to
Mother’s brief on appeal, Mother consented to an adjudication of dependency and neglect as to both children
during the December 16, 2010 hearing.

                                                   -3-
she was attending a foster care review meeting. Mother tested positive for marijuana. DCS
ended the trial home visit at that point upon the evidence of Mother’s continued marijuana
use and its contribution to Mother’s alleged inability to supervise D’Vante and J’Shon
properly.

       As the trial court noted in its final order, custody of J’Shon was awarded to his
biological father upon the father’s petition during the dependency and neglect phase of the
case.2 D’Vante continued residing with the foster mother, M.R., who had cared for both
children upon their removal into protective custody. Following termination of the trial home
visit with Mother, DCS arranged supervised visitation for her with the Child (D’Vante) at
the DCS office in Cleveland, Tennessee. According to Ms. Blankenship, OMNI Vision
workers were no longer able to transport the Child to scheduled visits with Mother, as they
once had, because Mother began threatening the OMNI Vision workers. Mother missed
several visits with D’Vante, including one on his birthday. She also often cut visits short.
Although Mother told DCS personnel she could obtain rides from family members, she
usually offered a lack of transportation as the reason for missing visits with the Child. The
foster mother volunteered to transport the Child to some visits, but Mother also missed these
on occasion. Ms. Blankenship further testified that for the most part, Mother telephoned
D’Vante approximately once a week, although she had the opportunity to do so every day.


        A third permanency plan was created on June 26, 2012, and ratified by the trial court
on August 30, 2012. To the original goal of a return to parent, DCS combined a concurrent
goal of adoption for the Child. This plan added to Mother’s responsibilities that she must
attend three Alcoholics Anonymous (“AA”) or Narcotics Anonymous (“NA”) meetings a
week, submit to random drug screens, and demonstrate learned parenting techniques from
the parenting classes she had completed. Ms. Blankenship testified that to her knowledge,
Mother tested positive for marijuana on every drug screen to which she submitted. Mother
had on several occasions told Ms. Blakenship that it was no use testing her because the
results would be positive for marijuana. According to Ms. Blankenship, Mother avoided
many drug screens during the year preceding trial by either claiming she could not urinate
for up to two hours at a time or refusing to answer the door of her home for DCS personnel.
Mother also presented no proof that she had followed recommendations for mental health
counseling.




        2
         The foster mother testified that J’Shon left the foster home for his biological father’s home in
February 2012, and in her brief on appeal, Mother states that J’Shon was placed in his father’s custody on
or about February 23, 2012.

                                                   -4-
        On October 10, 2012, DCS filed its petition seeking termination of Mother’s parental
rights on the statutory grounds of abandonment through failure to visit the Child, substantial
noncompliance with the permanency plans, and persistence of conditions that led to the
Child’s removal into protective custody. Following a bench trial conducted on July 15, 2013,
the trial court found, by clear and convincing evidence, that (1) Mother had failed to
substantially comply with the permanency plans and (2) the conditions causing the removal
of the Child into protective custody persisted. The court further found, by clear and
convincing evidence, that it was in the best interest of the Child to terminate Mother’s
parental rights. The trial court entered its final decree on September 11, 2013. Mother
timely appealed.

                                     II. Issues Presented

       On appeal, Mother presents three issues, which we have restated as follows:

       1.     Whether the trial court erred by finding there was clear and convincing
              evidence that Mother had substantially failed to comply with the statements of
              responsibilities in the permanency plans.

       2.     Whether the trial court erred by finding there was clear and convincing
              evidence that the conditions that led to the Child’s removal into protective
              custody persisted.

       3.     Whether the trial court erred by finding there was clear and convincing
              evidence that it was in the best interest of the Child to terminate Mother’s
              parental rights.

                                  III. Standard of Review

        In a termination of parental rights case, this Court has a duty to determine “whether
the trial court’s findings, made under a clear and convincing standard, are supported by a
preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The
trial court’s findings of fact are reviewed de novo upon the record, accompanied by a
presumption of correctness unless the evidence preponderates against those findings. Id.;
Tenn. R. App. P. 13(d). Questions of law, however, are reviewed de novo with no
presumption of correctness. In re Bernard T., 319 S.W.3d 586, 597 (Tenn. 2010). The trial
court’s determinations regarding witness credibility are entitled to great weight on appeal and
shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).



                                              -5-
       “Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling, 92
S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not absolute
and parental rights may be terminated if there is clear and convincing evidence justifying
such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599
(1982)). As our Supreme Court has instructed:

              In light of the constitutional dimension of the rights at stake in
              a termination proceeding under Tenn. Code Ann. § 36-1-113,
              the persons seeking to terminate these rights must prove all the
              elements of their case by clear and convincing evidence. Tenn.
              Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d
              at 808-09; In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
              The purpose of this heightened burden of proof is to minimize
              the possibility of erroneous decisions that result in an
              unwarranted termination of or interference with these rights. In
              re Tiffany B., 228 S.W.3d 148, 155 (Tenn. Ct. App. 2007); In re
              M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005). Clear and
              convincing evidence enables the fact-finder to form a firm belief
              or conviction regarding the truth of the facts, In re Audrey S.,
              182 S.W.3d 838, 861 (Tenn. Ct. App. 2005), and eliminates any
              serious or substantial doubt about the correctness of these
              factual findings. In re Valentine, 79 S.W.3d at 546; State, Dep’t
              of Children’s Servs. v. Mims (In re N.B.), 285 S.W.3d 435, 447
              (Tenn. Ct. App. 2008).

In re Bernard T., 319 S.W.3d at 596.

                  IV. Substantial Noncompliance with Permanency Plans

       The trial court, inter alia, terminated Mother’s parental rights on the statutory ground
that she failed to substantially comply with the reasonable responsibilities set out in her
permanency plans. Tennessee Code Annotated § 36-1-113(g)(2) (Supp. 2013) provides, as
relevant to this action:

       (g) Initiation of termination of parental or guardianship rights may be based
       upon any of the grounds listed in this subsection (g). The following grounds
       are cumulative and non-exclusive, so that listing conditions, acts or omissions
       in one ground does not prevent them from coming within another ground:

                                              -6-
       ...

              (2) There has been substantial noncompliance by the parent or guardian
              with the statement of responsibilities in a permanency plan pursuant to
              the provisions of title 37, chapter 2, part 4.

       As this Court has previously explained:

       Terminating parental rights based on Tenn. Code Ann. § 36-1-113(g)(2)
       requires more proof than that a parent has not complied with every jot and tittle
       of the permanency plan. To succeed under Tenn. Code Ann. § 36-1-113(g)(2),
       the Department 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, and second
       that the parent’s noncompliance is substantial in light of the degree of
       noncompliance and the importance of the particular requirement that has not
       been met. Trivial, minor, or technical deviations from a permanency plan’s
       requirements will not be deemed to amount to substantial noncompliance.

In re M.J.B. & M.W.S., Jr., 140 S.W.3d 643, 656-57 (Tenn. Ct. App. 2004) (internal citations
omitted).

        In its findings regarding Mother’s efforts under the permanency plans, the trial court
stated in relevant portion:

              1.     A permanency plan was created for [Mother] on November 23,
                     2010. The goal of the permanency plan was reunification with
                     mother. [Mother] was given until May 23, 2011 to complete the
                     following:
                     •      Provide the boys a safe home by getting a working
                            smoke detector and repairing a window which had been
                            broken and had jagged sharp edges;
                     •      Learn to supervise the children better through completing
                            a parenting class;
                     •      Ensure she is physically healthy so that she can take care
                            of the children by going to all doctor appointments and
                            taking medication as prescribed;




                                              -7-
              •     Ensure that she is emotionally healthy by scheduling an
                    in ta k e f o r c o u n s e l i n g a n d f o llo w in g a n y
                    recommendations.
       These goals were reasonable and were related to remedying the
conditions which necessitated removal.

       2.    The permanency plan was updated several times and included
             the same requirements. On the third plan drafted on June 26,
             2012, the goal of adoption was added as well as the following
             requirements:
             •      Address her marijuana use which continued after
                    completing an intensive alcohol/drug outpatient
                    treatment program on January 17, 2011 by attending
                    three AA/NA sessions every week and submitting to
                    random drug screens.
             •      Demonstrate parenting techniques learned from her
                    completed parenting classes, which she completed on
                    December 17, 2010.
             •      Her counseling requirement was expanded to include
                    addressing grief, loss, and traumatic life events such as
                    the loss of her older [child] J’Shon to his father’s
                    custody, her accident in 1998, and her grandmother’s
                    death.
       These goals were reasonable and were related to remedying the
conditions which necessitated removal.

       3.     CM [case manager] Blankenship testified that the Court ratified
              the plans and found that the requirements were reasonably
              related to remedying the reasons for foster care. This was due
              to the fact that [Mother] used marijuana sometimes resulting in
              daylong sleep during which she could not supervise her children
              properly. She allowed the children free reign of the home
              despite the fact she was aware they were setting fires and could
              harm themselves. She failed to properly address her medical
              needs which often [led] to her having seizures which alarmed
              the children and left them without supervision. She reported
              that she suffered from anxiety and depression which was not
              being treated. All of these posed a risk to the child.




                                       -8-
4.   CM Blankenship testified concerning the efforts she made in the
     reunification of the child with [Mother]. [Mother] was provided
     with a case manager from DCS and OmniVisions. Permanency
     plans were developed to help [Mother] understand what she
     needed to do to correct the problems in her home. DCS and
     OmniVisions offered transportation to [Mother] to court,
     meetings, and visits. Regular visitation was provided to
     [Mother] including weekend visitation at one point. Random
     drug screens were provided and she was urged to attend drug
     classes and treatment. The state attempted a trial home visit[.]
     DCS cared for the child during the time that [Mother] was given
     to try and complete the requirements of her plan. The child was
     placed in an OmniVisions foster home so that he could get extra
     foster care services to help his behavior issues. The child was
     sent to Joe Johnson Mental Health Center to get medicine for
     ADHD and medication to help him sleep. He was also provided
     counseling. The child was provided routine medical and dental
     care as well as specialized ophthalmologist care for his eyes.

5.   [Mother] was consistently encouraged to attend AA/NA
     meetings and was provided with a schedule of these meetings.
     She failed to attend [these] meetings. She was offered
     transportation to visitations initially but this was stopped due to
     her repeated threats and comments to the case managers who
     transported her. The child was repeatedly transported to
     Cleveland to make it easier for the mother to visit and she failed
     to take full advantage of this.

6.   CM Blankenship testified that [Mother] has failed to complete
     the most important parts of her permanency plan. [Mother] has
     failed to stop using marijuana, she has not attended AA/NA
     meetings, she has not remained in counseling to address
     emotional problems, and she has not gone to a doctor to evaluate
     her brain injuries to see if there are alternatives for treatment to
     marijuana use.

7.   [Mother] presented no proof concerning her completion of any
     items that the Department alleges were incomplete.




                              -9-
              8.     CM Blankenship testified that [Mother] had made some efforts
                     to comply with the permanency plans when she completed
                     parenting classes, maintained housing, and initially completed
                     an alcohol/drug assessment and treatment. However, she
                     continued to use marijuana after she completed this treatment.

              9.     The Department presented testimony through CM Blankenship
                     that the Department attempted a trial home visit with the mother
                     in an effort to reunify the family. However, due to her
                     continued drug use and failure to address her mental and
                     physical challenges this trial home visit was ended.

        Upon careful review, we determine that a preponderance of the evidence supports
these findings. As the trial court noted, three permanency plans were created and ratified for
the Child. The first two plans set the single goal of “return to parent” and delineated
identical responsibilities for Mother, including obtaining a working smoke detector; repairing
a broken, sharp-edged window; completing parenting classes; addressing her physical health
by keeping all medical appointments and taking medication as prescribed; and completing
a mental health intake and following any resultant recommendations. As the trial court
expressly found, these requirements were reasonable and related to the conditions that caused
the Child to be removed into protective custody because the requirements addressed the
safety of the home and Mother’s ability to devote attention to safely supervising the children.

        Case manager Blankenship acknowledged that Mother made substantial progress
toward compliance with the requirements of the first permanency plan throughout the first
few months the children were in protective custody, leading to the trial home visit that
occurred from approximately early June through mid-July 2011. Mother made the needed
safety repairs to her home. She completed parenting classes and satisfactorily maintained
visitation with the children. She also reported to Ms. Blankenship that she was seeing a
medication management counselor at Hiwassee Mental Health for assistance with managing
her prescribed medications. In addition, Mother voluntarily underwent an alcohol and drug
assessment and subsequently completed an outpatient substance abuse treatment program on
January 17, 2011.

       Ms. Blankenship testified further, however, that in April 2011, Mother revealed that
she was using marijuana to help her with chronic pain from her 1998 head injury. Although
Ms. Blankenship stated that the permanency plan had been updated in April or May 2011 to
include goals related to Mother’s marijuana use, the second permanency plan, developed on
May 20, 2011, and ratified by the trial court on May 26, 2011, was identical to the first
permanency plan regarding the concerns and responsibilities delineated for Mother. It was

                                             -10-
undisputed, however, that during the May 26, 2011 hearing, DCS informed the trial court of
Mother’s admitted marijuana use but requested that she be allowed a trial home visit with the
children due to her significant progress in reaching the permanency plan goals. Ms.
Blankenship stated that once Mother informed her of the marijuana use, she informed Mother
that a second alcohol and drug assessment would be required. According to Ms.
Blankenship, Mother was obligated from that point forward to demonstrate that she had
stopped using marijuana in order to achieve permanency with the children.

        The children’s trial home visit with Mother began in late May or early June 2011.
When Ms. Blankenship visited Mother’s home after the children were returned, however,
D’Vante and J’Shon reported that Mother continued to use marijuana in the home. In mid-
July 2011, DCS personnel requested that Mother submit to a drug screen while she was
attending a foster care review meeting. Mother tested positive for marijuana. DCS ended
the trial home visit at that point upon the evidence of Mother’s continued marijuana use and
its contribution to Mother’s inability to supervise the children properly.

        As the trial court noted in its final order, the third permanency plan, developed a year
later on June 26, 2012, and ratified by the court on August 30, 2012, did note the concern of
Mother’s marijuana use and required her to attend three AA/NA meetings per week and
submit to random drug screens. The third permanency plan also required Mother to remain
on her prescribed medications for chronic medical conditions and demonstrate learned
parenting techniques from the parenting classes she had previously completed. As the trial
court also expressly found, these revised requirements were reasonable and related to the
conditions that caused the Child to be removed into protective custody because the
requirements addressed the underlying cause of Mother’s inability to devote attention to
safely supervising the children.

        According to testimony from Ms. Blankenship and the foster mother, Mother’s efforts
to comply with the permanency plans decreased significantly following the termination of
the trial home visit and J’Shon’s placement with his father. Mother frequently missed or
abbreviated visits with D’Vante, making it problematic at best for her to demonstrate learned
parenting skills. Moreover, Ms. Blankenship testified that in the year between entry of the
third permanency plan and trial on July 15, 2013, Mother failed to test negative for marijuana
a single time. During this time period, Mother had on at least three occasions told Ms.
Blankenship that drug testing her was unnecessary because the results would be positive for
marijuana. Mother also avoided many drug screens by either claiming she could not urinate
for up to two hours at a time or refusing to answer the door for DCS personnel. During one
occasion, Mother told Ms. Blankenship that she had tried to “clean out” and pass a drug
screen by drinking vinegar and cranberry juice. According to Ms. Blankenship, following
cessation of the trial home visit, Mother actually submitted to two drug screens administered

                                              -11-
by DCS, both proving positive for marijuana. She also avoided being screened on nine or
ten other occasions. No proof was presented that Mother attended AA or NA meetings or
any other type of substance abuse program other than the outpatient treatment program she
completed in January 2011.

       Mother presented no proof that she had fulfilled the requirements that she participate
in mental health counseling and seek medical care to provide alternative methods of dealing
with chronic pain apart from marijuana use. Ms. Blankenship did testify that Mother
appeared to have up-to-date prescriptions for her seizures and anxiety, although Ms.
Blankenship emphasized that there was no way for DCS to determine whether Mother was
taking the medications appropriately.

        Mother presented no evidence and did not testify at trial. On appeal, she contends that
the trial court relied too heavily on Ms. Blankenship’s testimony regarding Mother’s failed
and missed drug screens. She argues that the trial court should not have considered her
continued use of marijuana as substantial noncompliance with a reasonable requirement of
the revised permanency plan. We disagree.

        Ms. Blankenship’s testimony could have been more precise regarding the details of
Mother’s drug screen results, but in total, her testimony demonstrated that Mother repeatedly
either tested positive for marijuana, admitted she would test positive, or avoided being tested.
We stress again that the trial court’s determinations regarding witness credibility are entitled
to great weight on appeal. See Jones, 92 S.W.3d at 838. The evidence supports the trial
court’s finding that Mother’s drug use was directly related to her failure to properly supervise
the Child. It is undisputed that Mother’s marijuana use was also directly related to her
perception of how to manage her chronic medical conditions and medication. No evidence
was presented as to whether Mother had addressed her physical and mental conditions
through counseling or other treatment that would have enabled her to adequately supervise
the Child. We conclude that clear and convincing evidence exists to justify termination of
Mother’s parental rights based upon the statutory ground of substantial noncompliance with
the statements of responsibilities in the permanency plans.

               V. Persistence of Conditions Leading to the Child’s Removal

       The trial court also found that Mother’s parental rights should be terminated based
upon the statutory ground of persistence of the conditions leading to the Child’s removal into
protective custody. Tennessee Code Annotated § 36-1-113(g)(3) provides as an additional
ground for termination of parental rights:




                                              -12-
      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(s) or guardian(s), 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(s) or guardian(s) 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; . . . .

      The trial court made the following factual findings with regard to this statutory
ground:

      1.     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 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(s) or guardian(s) still persist; 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(s) or guardian(s) in the near future; and
             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.

      2.     The record shows it has been over two and a half years since the child
             was placed into foster care on October 29, 2010, and the majority of the
             conditions that led to the State’s removal of the child persist. [Mother]
             continued to use marijuana throughout the time the child was in custody
             despite submitting to two alcohol and drug assessments and completing
             one intensive outpatient drug treatment program. She has continuously
             failed to address her drug use, her inability to supervise the child or to
             get treatment for medical, mental, and emotional conditions.

                                            -13-
       3.     CM Blankenship testified that [Mother] acknowledged that she uses
              marijuana to ease the pain from her brain injury and to treat her
              depression and anxiety. [Mother] presented no proof to contradict the
              statements of CM Blankenship regarding her continued drug use or
              inability to safely parent the child.

       4.     There is little chance that these conditions will be remedied soon so that
              the child can be returned safely to the home. Requiring the child to
              remain in foster care pending [Mother’s] resolution of her mental and
              physical health challenges and her drug issues diminishes the child’s
              chances of being placed into a safe and stable, permanent home, and
              will require the child to linger in foster care unnecessarily.

        Upon a thorough review of the record, we conclude that these findings are supported
by a preponderance of the evidence. The Child was removed for a period of more than six
months, and the predominant condition leading to removal, namely Mother’s inability to
provide adequate supervision for the Child, still persisted. There was little likelihood that
this condition would be remedied in the near future. The evidence at trial demonstrated that
Mother had failed to stop using marijuana and failed to show that she had addressed through
medical treatment or counseling the physical and mental conditions she acknowledged led
to her marijuana use. The statute provides for termination of parental rights based on this
ground for both the persistence of the conditions leading to the Children’s removal and
“other conditions that in all reasonable probability would cause the child to be subjected to
further abuse or neglect.” See Tenn. Code Ann. § 36-1-113(g)(3)(A); see, e.g., In the Matter
of S.Y., J.Y., & D.Y., 121 S.W.3d 358, 370-71 (affirming the trial court’s finding of persistent
conditions wherein the mother had corrected certain immediate conditions leading to the
children’s removal but had failed to address underlying “other conditions” that were
reasonably probable to lead to the children living in a condition of neglect similar to that
prompting their removal if they were returned to the mother).

        Mother contends that the fact that the Child and his brother were returned to her for
a trial home visit after she voluntarily disclosed her marijuana use demonstrates that the
marijuana use was not a persistent condition leading to the Child’s removal. This argument
is unavailing in light of DCS’s immediate termination of the trial home visit upon evidence
of Mother’s continued marijuana use and the trial court’s subsequent ratification of a
permanency plan requiring Mother to end her marijuana use and seek alternate means of
controlling her chronic conditions so that she could alertly and safely supervise the Child.
The evidence also demonstrated that continuation of the parent-child relationship would
greatly diminish the Child’s chances of integration into a safe, stable, and permanent home.



                                              -14-
We conclude that the trial court, upon clear and convincing evidence, properly terminated
Mother’s parental rights based on this statutory ground as well.

                                  VI. Best Interest of Child

        When a parent has been found to be unfit by establishment of a statutory ground for
termination of parental rights, as here, the interests of parent and child diverge, and the focus
shifts to what is in the child’s best interest. In re Audrey S., 182 S.W.3d 838, 877 (Tenn. Ct.
App. 2005). Tennessee Code Annotated § 36-1-113(i) (Supp. 2013) provides a list of factors
the trial court is to consider when determining if termination of parental rights is in the
child’s best interest. This list is not exhaustive, and the statute does not require the court to
find the existence of every factor before concluding that termination is in a child’s best
interest. In re Audrey S., 182 S.W.3d at 878 (“The relevancy and weight to be given each
factor depends on the unique facts of each case.”). Further, the best interest of a child must
be determined from the child’s perspective and not the parent’s. White v. Moody, 171
S.W.3d 187, 194 (Tenn. Ct. App. 2004).

       Tennessee Code Annotated § 36-1-113(i) lists the following factors for consideration:

              (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;




                                              -15-
              (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.

       In determining that termination of Mother’s parental rights was in the best interest of
the Child, the trial court stated:

       1.     [M.R.] testified that she is the current foster parent for the child,
              D’Vante [P]. She testified that she is extremely bonded to the child and
              that he responds well to her. She testified that she would be willing to
              adopt the child should he become available for adoption.

       2.     The minor child, D’Vante [P.] testified that he liked his foster home
              and felt happy there. He testified he was doing well in school and
              presented the Court with a copy of his grade card and copies of
              certificates he received. He was very proud of these achievements. He
              testified that his foster mother had rules he must follow and if he “did
              the right things he got to do fun things.” He said living with the [Rs]
              was “like eating cake.” He testified that he loved his mother, but would
              like to remain in his current placement.

       3.     [Mother] does not appear to have developed a deep and meaningful
              relationship with the child. Due to her failure to visit the child

                                             -16-
              regularly, the depth of the relationship existing between the child and
              [Mother] has diminished even further. [Mother] failed to visit regularly
              even though the state and the foster parent offered assistance. [Mother]
              ended visits early and did not take full advantage of phone contact.

       4.     [Mother] has failed to make changes in her conduct or circumstances
              that would make it safe for the child to go home. She continues to use
              marijuana which renders her unable to care for the child in a safe and
              stable manner. She has failed to seek treatment for her mental and
              physical health conditions which could potentially render her unable to
              care for the child in a safe and stable manner. In addition, [Mother] has
              shown a propensity toward violence as demonstrated by her threats to
              the child, the OmniVisions worker, and CM Hair. Past conduct is the
              best indication of probable future conduct.

       5.     Changing caregivers in this stage of the child’s life would have a
              detrimental effect on him. He is bonded to his foster family and wishes
              to remain there. [M.R.] is willing to adopt the child should he become
              eligible for adoption. This adoption would provide him a safe and
              stable permanent home to which the child has already adjusted fully and
              where he feels safe and accepted.

       6.     A child’s future must take precedence over un-remedied persistent
              conditions. In this case, [Mother] has made some effort to address the
              issues that brought the child into custody; however, D’Vante deserves
              to integrate into a permanent home as soon as possible, as he has
              remained in foster care since October 2010.

        The trial court therefore concluded that it was in the Child’s best interest to terminate
Mother’s parental rights. We agree. Mother contends that the evidence does not support the
trial court’s finding that she failed to make an adjustment of circumstances, conduct, or
conditions sufficient to allow the Child’s safe return to her home. See Tenn. Code Ann. §
36-1-113(i)(1), (2). Mother argues that because she addressed initial causes of the Child’s
removal into protective custody by making repairs to her home, completing parenting classes,
and seeking medication counseling, she made the adjustments necessary to ensure the Child’s
safety if he were returned to Mother’s care. As we have determined in previous sections of
this opinion, however, Mother’s initial positive progress toward fulfilling the responsibilities
of the first permanency plan was negated by her subsequent failure to address underlying
causes of her inability to safely supervise the Child. DCS worked with Mother to facilitate
the Child’s return to Mother’s home for a trial home visit in early June 2011. By mid-July

                                              -17-
2011, the trial home visit had been terminated due to Mother’s continued substance abuse
and resultant difficulty supervising the Child. Spanning two years between the end of that
trial home visit and the trial in this action, Mother failed to demonstrate that she had curtailed
her marijuana use or sought alternate methods of dealing with her chronic pain and medical
problems so that the Child could be safely returned to her care. The trial court’s finding that
Mother continued abusing a controlled substance also indicates consideration of statutory
factor (7), and the finding that Mother failed to address physical and mental health issues
contributing to her inability to properly supervise the Child indicates consideration of factor
(8). See Tenn. Code Ann. §§ 36-1-113(i)(7), (8).

        Mother also contends that the evidence does not support the trial court’s finding that
she failed to maintain a meaningful relationship with the Child because the Child testified
that he would like to continue a relationship with Mother. See Tenn. Code Ann. § 36-1-
113(i)(4). At trial, the Child, who was then eight years old, testified in chambers with
counsel for both parties and the guardian ad litem present. As the trial court noted, the Child
expressed his desire to be adopted by his foster mother and live with her permanently. He
explained that although his foster mother, M.R., had “lots of rules,” he did “fun stuff” with
her and enjoyed living with her. He stated further that with M.R., there were “consequences”
if he did “something bad,” but that with Mother, “she’ll whip you and then let you do
anything else that you wanted to do.” The Child indicated that he would like to continue
visiting with Mother even if he were adopted by M.R. We determine that the trial court
properly considered the Child’s testimony as one indication of the parent-child relationship.

       In finding that the relationship between Mother and the Child had “diminished” and
did not appear to be “deep and meaningful,” the trial court also considered, inter alia, the
factor of Mother’s visitation with the Child. See Tenn. Code Ann. § 36-1-113(i)(3). The
court had previously concluded in its final order that DCS had failed to prove the alleged
ground of abandonment by failure to visit pursuant to Tennessee Code Annotated § 36-1-
113(g)(1). In so concluding, the court stated:

              Based on the testimony of CM Blankenship and [M.R.], it is clear
       [Mother’s] visitation with the child for four consecutive months immediately
       before the termination petition was filed on October 10, 2012 was not good.
       During most of this time, [M.R.] was supervising visits and described them as
       “ok” or “off and on” and said there were “times when it wouldn’t be good.”
       [M.R.] also testified [Mother] ended two hour visits thirty to forty-five minutes
       early. While this evidence shows the visits were not “good,” the Court
       concludes they were more than “token.”




                                              -18-
As the trial court noted, the evidence demonstrated that Mother did not stop visiting the Child
but did miss several visits and cut many visits short in the months preceding the filing of the
termination petition. M.R. testified that after J’Shon was placed in the custody of his father,
Mother stopped calling to arrange visits with D’Vante from approximately February through
May 2012. Mother then began visiting on alternate weekends, but testimony revealed that
she often abbreviated visits and missed some visits all together, including one on D’Vante’s
birthday. Mother presented no evidence to refute this testimony regarding visitation and no
evidence regarding the quality of her relationship with the Child.

        In addition to its findings regarding the above statutory factors, the trial court also
specifically found that changing caretakers at this point in the Child’s life would have a
detrimental effect on the Child. See Tenn. Code Ann. § 36-1-113(i)(5). By the time of trial,
the Child had lived with M.R. from October 2010 through July 2013, except for the
approximately six-week duration of the trial home visit with Mother. Testimony from Ms.
Blankenship, M.R., and the Child demonstrated that the Child had formed a strong bond with
M.R. and was flourishing in her care. The Child presented to the court his recent school
awards for perfect attendance and maintaining honor roll grades. From a thorough
examination of the record before us, we conclude that there is clear and convincing evidence
that termination of Mother’s parental rights was in the Child’s best interest.

                                       IX. Conclusion

       The judgment of the trial court terminating the parental rights of Mother is affirmed.
Costs on appeal are taxed to the appellant, Ashley C. This case is remanded to the trial court,
pursuant to applicable law, for enforcement of the trial court’s judgment and collection of
costs assessed below.




                                                    _________________________________
                                                    THOMAS R. FRIERSON, II, JUDGE




                                             -19-
