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

                                       IN RE CHELSIA J. ET AL.

                     Appeal from the Chancery Court for Campbell County
                         No. 2012-CV-28     John D. McAfee, Judge 1




                No. E2014-00632-COA-R3-PT-FILED-DECEMBER 16, 2014


This is a termination of parental rights case, focusing on Chelsia J. and Jared J., the minor
children (“Children”) of Fleesha J. (“Mother”) and Mark F. (“Father”). The Children were
taken into protective custody by the Tennessee Department of Children’s Services (“DCS”)
on April 28, 2011, upon investigation of the Children’s exposure to controlled substances in
the parents’ home. On March 21, 2012, DCS filed a petition to terminate the parental rights
of both parents. Following a bench trial conducted over the course of four days spanning
more than a year’s time, the trial court found that grounds existed to terminate the parental
rights of both parents upon its finding, by clear and convincing evidence, that (1) the parents
abandoned the Children by failing to provide a suitable home, (2) the parents abandoned the
Children by engaging in conduct prior to incarceration that exhibited wanton disregard for
the Children’s welfare, (3) the parents failed to substantially comply with the reasonable
responsibilities and requirements of the permanency plans, and (4) the conditions leading to
the Children’s removal from the home persisted. At that time, however, the court denied the
petition based upon its finding that termination was not in the best interest of the Children.
DCS subsequently filed a motion to alter or amend the judgment. Following a subsequent
hearing, the trial court granted the motion to alter or amend the judgment and terminated the
parental rights of both parents upon its finding, by clear and convincing evidence, that
termination was in the best interest of the Children. Mother has appealed.2 We reverse the
trial court’s finding that Mother abandoned the Children by engaging in conduct prior to
incarceration that exhibited wanton disregard for the Children’s welfare. We affirm the trial
court’s judgment in all other respects, including the termination of Mother’s parental rights.




       1
           Sitting by interchange.
       2
           Father is not a party to this appeal.
       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                Affirmed in Part, Reversed in Part; 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.

Robert R. Asbury, Jacksboro, Tennessee, for the appellant, Fleesha J.

Robert E. Cooper, Jr., Attorney General and Reporter, and Kathryn A. Baker, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.

                                         OPINION

                           I. Factual and Procedural Background

       DCS initially became involved with the family in response to a December 10, 2010
referral alleging exposure of the Children to controlled substances. At the time, Chelsia was
two years old, and Mother was eight months pregnant with Jared. A DCS investigator
attempted to interview Mother but found her uncooperative. Mother refused to submit to a
drug screen and upon a follow-up visit, could not be located. DCS received a second referral
on April 28, 2011, following Mother’s arrest on drug-related charges. At that time, the
Children were two years old and three months old respectively.

       Upon investigation, DCS was unable to locate Father and removed the Children from
the parents’ home on April 28, 2011. The Children were placed with neighbors, R.D. and
V.D., who knew the Children and volunteered to care for them. The Children were
subsequently brought into foster care on May 12, 2011, although they remained with the
same caregivers, R.D. and V.D., who became the Children’s foster parents. On May 19,
2011, the Campbell County Juvenile Court entered an emergency protective custody order
placing the Children in DCS custody and finding that DCS had made reasonable efforts to
prevent removal of the Children from the parents’ home. Following a proceeding conducted
on August 18, 2011, at which both parents waived their respective rights to an adjudicatory
hearing, the Juvenile Court adjudicated the Children dependent and neglected in an order
entered September 8, 2011.

       It is undisputed that when the parents waived their respective rights to an adjudicatory
hearing, they stipulated to the facts alleged in DCS’s amended petition for temporary
custody, which was subsequently admitted as an exhibit, without objection, during the
termination proceedings. According to these stipulated facts, Mother was arrested on April

                                              -2-
28, 2011, after she was found by police officers in a vehicle parked in front of an abandoned
house in the company of a man who possessed a baggie containing some methamphetamine
and two partially loaded syringes. The man, unidentified in the petition, had run from the
vehicle as officers approached, but he was subsequently caught and transported to the
hospital after he admitted swallowing three grams of methamphetamine. Mother had needle
marks “all over the bend of both arms” according to the petition.

        Responding to a consequent referral requesting a welfare check on the Children, DCS
case manager Brandi Smith found Jared at a residence in the care of a woman who claimed
to be his grandmother. The woman could not remember the infant’s name and appeared to
be intoxicated.3 A police officer accompanying Ms. Smith observed what appeared to be a
pill grinder, a burnt spoon, and used marijuana roaches at the residence. Ms. Smith
proceeded to a neighboring residence, where she found Chelsia in the care of a non-relative,
S.W., who lived at the residence with her husband. S.W. was seventeen years old and had
been caring for Chelsia for three days. S.W. told Ms. Smith that Mother had dropped off
Chelsia with only four diapers and two outfits on the previous Monday, April 25, 2011. S.W.
had attempted to contact Mother the following day on April 26 to have her retrieve Chelsia,
but S.W. had been unable to locate Mother.

       According to the stipulated facts of the petition, Ms. Smith interviewed Mother on or
about April 28, 2011, while Mother was incarcerated. Mother disclosed that she had been
“shooting up” methamphetamine or “whatever was in the needle” with Father for
approximately three weeks since Father was released from jail. Mother told Ms. Smith that
she used to “snort pills” and acknowledged that she had a drug problem. At that time,
Mother explained that she did not believe the Children should be with Father because of his
drug problem.

         During the termination proceedings, Mother questioned the truth of the facts to which
she had stipulated during the dependency and neglect proceedings, but she was unable to
specifically dispute them. When questioned regarding whether she was with Father on the
day she was arrested, Mother answered: “No -- I don’t know. I was so out of my mind. I
don’t even know.” When further questioned regarding whether Ms. Smith had
misrepresented the jailhouse interview, Mother stated: “I don’t know. I was high.” Mother
acknowledged that upon her April 28, 2011 arrest, she tested positive for “marijuana, opiates,
and methamphetamine” in her system. According to Mother’s criminal history, admitted at
trial, the April 28, 2011 arrest resulted in a conviction for possession of drug paraphernalia,
a Class A misdemeanor. Mother incurred a sentence of eleven months and twenty-nine days,
which was deferred upon Mother’s paying court costs.

       3
           At trial, Mother testified that this caregiver was actually her great grandmother.

                                                      -3-
       Prior to filing the petition for termination of parental rights, DCS developed two
permanency plans for the Children. The first permanency plan was established on June 8,
2011, and ratified by the Juvenile Court on August 18, 2011. Under the plan, Mother’s
responsibilities and requirements were that she visit the Children at least 4.3 hours per month
with age-appropriate food or other supplies in hand; attend meetings and court hearings
regarding the Children; complete an alcohol and drug assessment and follow attendant
recommendations; pass scheduled and random drug screens; complete a mental health
assessment and follow attendant recommendations; complete parenting education classes and
demonstrate parenting skills learned during visitation; provide a “reliable, stable, safe living
environment, free from drug use, harm or abuse”; seek employment and provide proof of her
search for or ultimate employment; resolve “legal issues”; and pay child support “as
ordered.” The stated goal of the first permanency plan was to reunify the Children with the
parent and/or have the Children exit protective custody with a relative.

        The second permanency plan was established on December 14, 2011, and ratified by
the Juvenile Court on February 8, 2012. Mother’s responsibilities and requirements under
the second permanency plan remained the same as in the first plan. Within the second plan,
DCS revised its stated goal to either reunify the Children with the parent or to seek adoption
for the Children in the event that reunification efforts proved unsuccessful.

        On March 21, 2012, DCS filed a petition with the Campbell County Chancery Court
(“trial court”) to terminate the parental rights of both parents, alleging grounds of
abandonment by failure to provide a suitable home, abandonment by an incarcerated parent
(as to both parents), substantial noncompliance with the permanency plans, and persistence
of the conditions leading to removal of the Children from the parents’ home. Following a
hearing upon an affidavit of indigency filed by Mother, Chancellor Billy Joe White entered
an order on May 1, 2012, appointing counsel for Mother and a guardian ad litem to represent
the Children. Chancellor White also conducted an initial hearing on May 22, 2012, and
entered an order that day, inter alia, setting trial for July 10, 2012. Due to Chancellor
White’s subsequent illness, Circuit Judge John D. McAfee heard the case by interchange
thereafter.

        A bench trial commenced on July 10, 2012, during which the trial court heard the
testimony of several witnesses, including the Children’s maternal grandmother, Vanessa J.
(“Grandmother”). At the close of that day’s proceedings, the court continued the trial to
allow Grandmother an opportunity to file an intervening petition. Grandmother subsequently
filed an intervening petition seeking custody of the Children on July 27, 2012. The bench
trial reconvened a year later and was held over the course of three additional days: July 12,
2013; July 22, 2013; and August 16, 2013. Grandmother failed to appear during the July and
August 2013 proceedings and did not further pursue her intervening petition.

                                              -4-
        In an order entered November 18, 2013, the trial court found that grounds existed to
terminate the parental rights of both parents. As pertinent to Mother’s appeal, the court
found, by clear and convincing evidence, that (1) Mother abandoned the Children by failing
to provide a suitable home, (2) Mother abandoned the Children by engaging in conduct prior
to incarceration that exhibited wanton disregard for the Children’s welfare, (3) Mother failed
to substantially comply with the reasonable responsibilities and requirements of the
permanency plans, and (4) the conditions leading to the Children’s removal from Mother’s
home persisted. The court also specifically found that DCS had made reasonable efforts to
assist Mother in establishing a suitable home and substantially complying with the
permanency plans.

        The trial court further found in its November 18, 2013 order, however, that DCS had
failed to establish clear and convincing evidence that termination of parental rights would
be in the Children’s best interest. Although the court credited testimony that the Children
were flourishing in the foster parents’ care and that the foster parents wished to adopt the
Children, the court expressed concern that DCS could not assure that adoption by the foster
parents would definitely take place upon termination of Mother’s and Father’s parental
rights. The court therefore denied the petition and determined that the Children should
remain in protective custody and foster care.

        DCS subsequently filed a motion to alter or amend the judgment pursuant to
Tennessee Rule of Civil Procedure 59.04. Following a hearing conducted on February 10,
2014, the trial court determined that its prior ruling regarding the best interest of the Children
had been inconsistent with relevant statutes and precedent. The court entered an amended
final judgment on March 4, 2014, finding by clear and convincing evidence that termination
of Mother’s and Father’s parental rights was in the Children’s best interest. 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 clear and convincing evidence of
               grounds to terminate Mother’s parental rights to the Children, particularly that
               (1) Mother abandoned the Children by failing to provide a suitable home, (2)
               Mother abandoned the Children by engaging in conduct prior to her
               incarceration that exhibited wanton disregard for the welfare of the Children,
               (3) Mother failed to substantially comply with the responsibilities and



                                               -5-
              requirements of her permanency plans, and (4) the conditions leading to the
              Children’s removal from Mother’s home persisted.

       2.     Whether the trial court erred by finding that DCS made reasonable efforts to
              assist Mother in substantially complying with the responsibilities and
              requirements set forth in her permanency plans.

       3.     Whether the trial court erred by finding clear and convincing evidence that it
              was in the best interest of the Children 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).

       “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

                                              -6-
             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. Statutory Abandonment

      Tennessee Code Annotated § 36-1-113 (2014) lists the statutory grounds for
termination of parental rights, providing as follows:

      (a) The chancery and circuit courts shall have concurrent jurisdiction with the
      juvenile court to terminate parental or guardianship rights to a child in a
      separate proceeding, or as a part of the adoption proceeding by utilizing any
      grounds for termination of parental or guardianship rights permitted in this part
      or in title 37, chapter 1, part 1 and title 37, chapter 2, part 4.

      ...

      (c) Termination of parental or guardianship rights must be based upon:

             (1) A finding by the court by clear and convincing evidence that
             the grounds for termination of parental or guardianship rights
             have been established; and

             (2) That termination of the parent’s or guardian’s rights is in the
             best interests of the child.

       The trial court determined that Mother had abandoned the Children by failing to
establish a suitable home and by demonstrating wanton disregard for their welfare through
her behavior prior to incarceration. See Tenn. Code Ann. § 36-1-113(g)(1).




                                             -7-
                           A. Failure to Provide a Suitable Home

      Tennessee Code Annotated § 36-1-113(g)(1) provides, as a statutory ground for
termination:

       (1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
       occurred . . . .

        Tennessee Code Annotated § 36-1-102(1)(A) (2014) defines abandonment, in relevant
part, as:

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

      In its final order, the trial court included the following specific findings regarding
Mother’s failure to establish a suitable home:

              In this case, pursuant to Tenn. Code Ann. §§ . . . 36-1-113(g)(1) and 36-
       1-102(1)(A)(ii), the Court finds that there is clear and convincing evidence that
       the Respondents failed to provide a suitable home to which the children could
       return. At the time of the hearing, the father remained incarcerated and the
       mother was residing with relatives. Respondents failed to make even minimal

                                              -8-
       efforts to establish a suitable home for the children, despite exhaustive
       reasonable efforts by DCS to assist them.

        Upon a thorough review of the record, we conclude that these findings, made under
a clear and convincing evidence standard, are supported by a preponderance of the evidence.
The four-month determinative period for purposes of determining abandonment, pursuant
to Tennessee Code Annotated § 36-1-102(1)(A), began on November 21, 2011, and
concluded on March 20, 2012, the day prior to the filing of the termination petition. See In
re Jacob C.H., No. E2013-00587-COA-R3-PT, 2014 WL 689085 at *6 (Tenn. Ct. App. Feb.
20, 2014) (concluding that the applicable four-month statutory period preceding filing of the
termination petition ends on the day preceding filing). Mother acknowledged at trial in July
2012 that she had been caught in a cycle for some time of abusing drugs, getting clean,
abusing drugs again, and getting clean again. This cycle had affected her ability to maintain
a stable home and employment. Moreover, the trial court continued the termination action
for more than a year and heard updated testimony from Mother and DCS personnel in July
and August 2013 that substantiated a similar pattern of drug abuse and temporary recovery,
with a resultant lack of stability in Mother’s living conditions.

        At the time the Children were removed into protective custody, Mother and Father had
been living together with the Children. Mother testified that since the Children’s removal,
she and Father had not resided together. Father was ultimately incarcerated on February 18,
2012, following convictions for aggravated burglary and reckless endangerment with a
deadly weapon. He was sentenced to five years of incarceration and attended the instant
proceedings while in the custody of the Tennessee Department of Correction. By the time
of the final judgment, Father had been released on parole but was found by the trial court,
inter alia, to have failed to provide a suitable home for the Children or to have substantially
complied with the reasonable responsibilities and requirements of the permanency plans.

        Mother’s living situation is not always clear from the record. At some point
following her release from jail in May 2011, she resided with her sister for approximately
two months. At the time of the July 10, 2012 hearing, Mother had recently begun to reside
with Grandmother. Both Mother and Grandmother testified that Mother and the Children
could reside indefinitely in Grandmother’s home. One year later, however, during the July
and August 2013 proceedings, Mother acknowledged that she no longer resided with
Grandmother and that it was no longer feasible for her to live there with the Children.

      DCS family service worker Leah Baird testified at the July 12, 2013 hearing that to
her knowledge, Mother was homeless at that time. Mother explained that during the year
between the July 2012 and July 2013 hearings, she had resided with a cousin in Cleveland,
Tennessee, for three months. She also explained that her uncle and father had died during

                                              -9-
the year between hearings, and that she had spent several days at her father’s bedside in the
hospital. She did not claim to have obtained any suitable housing, and she acknowledged
that grounds existed to terminate her parental rights.

       On appeal, Mother asserts that by the time of the February 10, 2014 hearing on the
motion to alter or amend the judgment, she had obtained both employment and housing.
Mother testified that she had been employed with Arby’s Restaurant for approximately four
months, or since approximately November 2013. At the end of January 2014, Mother moved
into her “own place,” a three-bedroom house she shared with a new boyfriend. Mother
explained that her boyfriend worked out of town and was only there on weekends. It was
undisputed that Mother had not failed a drug screen since December 2, 2013, when she tested
positive for marijuana. She had completed an intensive outpatient drug rehabilitation
program, which she entered in November 2013. Upon cross-examination, Mother
acknowledged that following her release from the rehabilitation program, she had resided
with a program director for three months and had actually only been living drug-free on her
own for approximately two weeks.

       During the determinative period before the filing of the termination petition,
November 21, 2011, through March 20, 2011, Mother clearly failed to establish a suitable
home for the Children. Following the filing of the termination petition, proceedings
continued for more than two years before the trial court found in its November 18, 2013
order that Mother still had not managed to provide a suitable home and had continued to
demonstrate a pattern of drug abuse evincing such disregard for the Children as to be unlikely
to provide a suitable home in the future. See In the Matter of A.D.A., 84 S.W.3d 592, 599
(Tenn. Ct. App. 2002) (noting that “a suitable home requires more than a physical space” and
concluding that “the inability of a parent to overcome drug addiction can provide statutory
grounds for termination of parental rights” under this statutory ground).

        Although the trial court had reached this finding in its November 2013 order, it
allowed Mother to testify as to her situation at the time the motion to alter or amend was
heard in February 2014. The trial court commended Mother on her efforts toward stability
and a drug-free lifestyle in the few months prior to the February 2014 hearing. As the trial
court noted, however, Mother had tested positive for marijuana in her system as recently as
November 18, 2013, and December 2, 2013. Mother acknowledged her cyclical pattern of
drug abuse and the newness of her current living situation with a paramour unknown to DCS
and the court. We determine that the trial court did not err in terminating Mother’s parental
rights based upon this statutory ground.




                                             -10-
                B. Wanton Disregard for the Children Prior to Incarceration

       The trial court also found, by clear and convincing evidence, that both parents had
“constructively abandoned” the Children by engaging in criminal conduct and continuing to
abuse drugs prior to incarceration, thereby exhibiting wanton disregard for the Children. On
appeal, DCS concedes that the trial court erred in applying this statutory ground to Mother.
We agree.

      The applicable definition of abandonment for this statutory ground provides that for
purposes of instituting an action to terminate parental rights:

       [a] parent or guardian is incarcerated at the time of the institution of an action
       or proceeding to declare a child to be an abandoned child, or the parent or
       guardian has been incarcerated during all or part of the four (4) months
       immediately preceding the institution of such action or proceeding, and either
       has willfully failed to visit or has willfully failed to support or has failed to
       make reasonable payments toward the support of the child for four (4)
       consecutive months immediately preceding such parent’s or guardian’s
       incarceration, or the parent or guardian has engaged in conduct prior to
       incarceration that exhibits a wanton disregard for the welfare of the child; . .
       ..

Tenn. Code Ann. § 36-1-102(1)(A)(iv) (emphasis added). The “two distinct tests” for
abandonment contained in this definition “apply only if the parent is incarcerated at or near
the time of the filing of the termination petition.” In re Audrey S., 182 S.W.3d at 865.

        The instant action was instituted by the filing of a petition to terminate parental rights
on March 21, 2012. Although Mother was briefly incarcerated at the time the Children were
removed into protective custody in April 2011, she was not incarcerated at the time the
instant action for termination of her rights was instituted, and DCS failed to show that she
was incarcerated during any portion of the four months preceding the filing of the petition.
The trial court erred by terminating Mother’s parental rights based upon the ground of
abandonment through wanton disregard for the Children prior to incarceration. We reverse
the trial court’s finding on this statutory ground.

                   V. Substantial Noncompliance with Permanency Plans

       The trial court also found clear and convincing evidence that Mother failed to
substantially comply with the reasonable responsibilities set out in her permanency plans.



                                              -11-
Tennessee Code Annotated § 36-1-113(g)(2) provides as an additional ground for
termination of parental rights:

              (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[.]

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

               In this case, pursuant to T.C.A. §§ 36-1-113(g)(2) and 37-2-403(a)(2),
       the Court finds clear and convincing evidence that the Respondents failed to
       substantially comply with the permanency plans. Despite the more than
       reasonable efforts by the Department for two years, the parents have not
       substantially complied with the responsibilities and requirements set out for
       them in the permanency plans and they have failed to provide a suitable home
       to which the children can safely return. The Department did so by staffing
       permanency plans with the Respondents designed to facilitate reunification of
       the family, providing supervised visitation with the children to both
       Respondents, referring the Respondents for alcohol and drug assessments and
       mental health assessments, providing drug screens to the Respondents;
       providing in-home services to work with the Respondents on therapeutic
       visitation, assisting the mother with enrolling in inpatient drug treatment
       programs, assisting the father with enrolling in a drug treatment program,
       referring the Respondents to parenting classes, attempting to assist the
       Respondents with stable housing, providing ongoing case management,
       providing daily care and support for the children, providing medical and dental
       care for the children, and providing ongoing advice and recommendations to
       the Respondents.

              The Respondents have not refrained from criminal activity. The father
       was arrested on January 5, 2012 for theft, evading arrest, theft under $500.00
       and trespassing. He was charged with a violation of probation in March 2012.
       The mother was arrested on January 12, 2012 for giving false information to
       an officer, not having a valid driver’s license, violation of the seat belt law and
       violation of the registration law. Respondents have not remained drug free.
       On January 11, 2012 both Respondents tested positive on drug screens[.] The
       mother tested positive for oxycodone. She claimed to have a prescription but
       failed to provide a copy when requested. The father tested positive for
       amphetamine, methamphetamine, and oxycodone. On February 22, 2012, the

                                              -12-
       mother again tested positive for oxycodone. She has been discharged from
       two rehabilitation programs for noncompliance. The father completed a thirty
       day treatment program but did not follow the aftercare recommendations and
       continued to abuse drugs after completion. The Respondents do not have
       stable housing. The father is currently incarcerated and the mother is living
       with relatives.

        Upon careful review, we determine that a preponderance of the evidence supports
these findings. In particular, Mother’s responsibilities under the permanency plans were to
(1) visit the Children at least 4.3 hours per month with age-appropriate food or other supplies
in hand; (2) attend meetings and court hearings regarding the Children; (3) complete an
alcohol and drug assessment and follow attendant recommendations; (4) pass scheduled and
random drug screens; (5) complete a mental health assessment and follow attendant
recommendations; (6) complete parenting education classes and demonstrate parenting skills
learned during visitation; (7) provide a “reliable, stable, safe living environment, free from
drug use, harm or abuse”; (8) seek employment and provide proof of her search for or
ultimate employment; (9) resolve “legal issues”; and (10) pay child support “as ordered.”

       It is undisputed that when Mother participated in visitation with the Children, she
demonstrated appropriate parenting skills and was consistently prepared with snacks or other
items for the Children. Mother consistently appeared for court hearings and participated in
child and family team meetings when required. She presented proof of completion of
parenting education classes. We note, however, that Mother’s visitation sessions with the
Children were often sporadic. Mother explained at trial that she had missed some scheduled
supervised visitation sessions when she could not change her shift at work or did not have
transportation. Following the July 2012 hearing, Mother did not visit the Children for three
months while she resided with her cousin in Cleveland, Tennessee.

       As noted in the previous section, Mother was unable to maintain steady employment
or provide a suitable, stable home during the nearly three years the Children were in
protective custody. Moreover, she continued to struggle with drug abuse throughout this
time period. Although she successfully completed a two-week rehabilitation program on
March 19, 2012, two days prior to the filing of the termination petition, Mother also had been
discharged previously from two rehabilitation programs for noncompliance. At the July 2012
hearing, Mother admitted that she had tested positive for marijuana a week prior to trial.
DCS presented evidence of eighteen drug screens administered to Mother between the dates
of May 20, 2011, and April 9, 2012, eight of them positive for controlled substances. Ms.
Baird testified that in the year between the July 2012 and July 2013 hearings, Mother had
tested positive sporadically for marijuana and “benzos.” Mother acknowledged at both the
July 2012 and July 2013 hearings that she had not complied with the responsibilities and

                                             -13-
requirements of her permanency plans. She repeatedly expressed that she felt much better
when not using controlled substances, but she also acknowledged her tendency to turn to
marijuana when under stress.

       In addition, Mother complied with the requirement of completing a mental health
assessment but showed difficulty following through with recommended outpatient
counseling. As the trial court noted, she incurred new legal charges in January 2012,
although she did eventually resolve those charges without any additional incarceration.
Mother did not pay any child support while the Children were in protective custody. The trial
court did not err in terminating Mother’s parental rights based upon the statutory ground of
substantial noncompliance with the statements of responsibilities in the permanency plans.

             VI. Persistence of Conditions Leading to the Children’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 Children’s removal
into protective custody. Tennessee Code Annotated § 36-1-113(g)(3) provides as an
additional ground for termination of parental rights:

       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 [a] parent
              or parents or [a] guardian or guardians, still persist;

              (B) There is little likelihood that these conditions will be
              remedied at an early date so that the child can be safely returned
              to [a] parent or parents or [a] guardian or guardians in the near
              future; and

              (C) The continuation of the parent or guardian and child
              relationship greatly diminishes the child’s chances of early
              integration into a safe, stable and permanent home; . . . .

       In explaining its findings regarding this statutory ground, the trial court reiterated its
findings regarding Mother’s failure to provide a suitable home and failure to substantially



                                              -14-
comply with the other reasonable responsibilities and requirements of her permanency plans.
The court further found as follows in relevant part:

              There is little chance that those conditions will be remedied soon so that
       the children can be returned safely to the Respondents’ home because for two
       years, DCS has made reasonable efforts to assist the Respondents to remedy
       them to no avail.

       Upon a thorough review of the record, we conclude that these findings are supported
by a preponderance of the evidence. By the time of the petition’s filing in March 2012, the
Children had been removed for a period of nearly a year, and by the time of the final
judgment in April 2014, that period had stretched to nearly three years. The predominant
conditions leading to removal as pertaining to Mother, namely Mother’s drug addiction and
resultant inability to care for the Children, persisted at the time of the final judgment. Mother
argues that her recent success in rehabilitation and employment at the time of the February
2014 hearing demonstrated that she had conquered the conditions leading to the Children’s
removal. However, the evidence does not preponderate against the trial court’s finding that
Mother’s success was too recent and short-lived to constitute assurance that the Children
would not return to conditions similar to those at the time of their removal if they were
returned to Mother’s care. Mother stresses that she had obtained a home at the time of the
February 2014 hearing, but it is undisputed that she had done so in the company of a
paramour unknown to DCS or the court.

        The evidence also demonstrated that continuation of the parent-child relationship
would greatly diminish the Children’s chances of integration into a safe, stable, and
permanent home. We conclude that the trial court properly terminated Mother’s parental
rights based on this statutory ground as well.

                              VII. Reasonable Efforts by DCS

        Mother next argues that the trial court erred in finding that DCS made reasonable
efforts to reunify her with the Children and therefore erred in terminating her parental rights
based on substantial noncompliance with the parenting plans. The trial court found that DCS
made such reasonable efforts in this case. Having carefully reviewed the record, we agree.

       We have previously defined such reasonable efforts as:

       “the exercise of reasonable care and diligence by the department to provide
       services related to meeting the needs of the child and the family.” T.C.A. § 37-
       1-166(g)(1) (2005). “Reasonable efforts entail more than simply providing

                                              -15-
       parents with a list of service providers and sending them on their way. The
       Department’s employees must use their superior insight and training to assist
       parents with the problems the Department has identified in the permanency
       plan, whether the parents ask for assistance or not.” In re C.M.M., 2004 WL
       438326, at *7 (citing In re D.D.V., No. M2001-02282-COA-R3-JV, 2002 WL
       225891, at *8 (Tenn. Ct. App. Feb.14, 2002)). The Department’s efforts,
       however, need not be “Herculean,” and it is important to note that “the
       remedial responsibility does not rest solely on the Department’s shoulders.
       Parents must also make reasonable efforts to rehabilitate themselves and to
       remedy the conditions that required them to be separated from their children.”
       Id. (citing In re R.C.V., No. W2001-02102-COA-R3-JV, 2002 WL 31730899,
       at *12 (Tenn. Ct. App. Nov.18, 2002)). The State has the burden of proving
       by clear and convincing evidence that its efforts at reunification were
       reasonable under all of the circumstances. Id. at *8; see T.C.A. § 36-1-113(c)
       (2005).

State Dep’t of Children’s Servs. v. Estes, 284 S.W.3d 790, 800-01 (Tenn. Ct. App. 2008).

      The trial court specifically found that DCS had made reasonable efforts to assist
Mother and Father by:

       staffing permanency plans with the Respondents designed to facilitate
       reunification of the family, providing supervised visitation with the children
       to both Respondents, referring the Respondents for alcohol and drug
       assessments and mental health assessments, providing drug screens to the
       Respondents; providing in-home services to work with the Respondents on
       therapeutic visitation, assisting the mother with enrolling in inpatient drug
       treatment programs, assisting the father with enrolling in a drug treatment
       program, referring the Respondents to parenting classes, attempting to assist
       the Respondents with stable housing, providing ongoing case management,
       providing daily care and support for the children, providing medical and dental
       care for the children, and providing ongoing advice and recommendations to
       the Respondents.

       On appeal, Mother acknowledges Ms. Baird’s exhaustive efforts to provide Mother
with visitation with the Children, which Mother’s counsel stipulated at trial were efforts
“above and beyond” the norm. Mother asserts, however, that DCS’s other assistance to
Mother consisted of little more than “giving an illiterate woman telephone numbers.” Upon
our thorough and careful review of the record, we determine this characterization to be
disingenuous. Mother testified that Ms. Baird had taken time on several occasions to explain

                                            -16-
documents and requirements to her in language she could understand. Mother completed two
rehabilitation programs and was discharged from two others during the pendency of these
proceedings. There is no indication in the record that Mother was ignorant of the resources
available to her or that DCS had failed to make these resources known. DCS clearly
exercised “reasonable care and diligence . . . to provide services related to meeting the needs
of the child and the family” in this case. See Tenn. Code Ann. §37-1-166(g)(1).4 This issue
is without merit.

                                   VIII. Best Interest of Children

        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 at 877. Tennessee
Code Annotated § 36-1-113(i) (2014) 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



        4
         We are unconvinced by Mother’s argument that the trial court’s initial reluctance to terminate
Mother’s parental rights without assurance that the foster parents were procedurally set to adopt the Children
somehow meant that the trial court and DCS were attempting to serve the foster parents’ interest over the
Children’s interest. Upon its motion to alter or amend the judgment, DCS properly explained to the trial
court that pursuant to Tennessee Code Annotated §§ 36-1-113 (h) and (p), respectively, DCS was required
to seek termination of parental rights on statutory grounds and could only then, after having obtained
termination, assist the foster parents in filing a subsequent petition for adoption with the order terminating
parental rights attached.

                                                    -17-
                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 substances5 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.




        5
          Effective July 2012, after the filing of the petition in the instant case, The Tennessee General
Assembly amended Tennessee Code Annotated § 36-1-113(i)(7) to substitute “alcohol, controlled substances
or controlled substance analogues” in place of “alcohol and controlled substances.” See 2012 Pub. Acts ch.
848, § 8.

                                                  -18-
        In ultimately determining in its amended final judgment, by clear and convincing
evidence, that termination of Mother’s parental rights was in the best interest of the Children,
the trial court stated in pertinent part:

       a.     The parents have not made changes in their conduct or circumstances
              that would make it safe for the children to go home. The parents still
              have unaddressed substance abuse issues and have not maintained safe
              and stable housing. The father has not resolved his legal issues.

       b.     The parents have not made lasting changes in their lifestyle or conduct
              after reasonable efforts by the state to help, so that lasting change does
              not appear possible. Despite help from the state [for] two years, the
              parents continued to abuse drugs, the father returned to incarceration,
              and the parents have not obtained and maintained safe and stable
              housing.

       c.     There is crime in Respondent[s’] home. Both parents have been
              charged with criminal offenses since the children were removed from
              their home.

       d.     The parents abuse drugs, rendering them consistently unable to care for
              the children in a safe and stable manner. Both parents have unresolved
              substance abuse issues and have continued to test positive for illegal
              substances since the children were removed from their home.

       e.     The children have established a strong bond with their foster parents,
              who wish to adopt them. The children were just two years old and four
              months old at the time they were removed from their parents. They are
              now five years old and three years old. They have spent the majority
              of their young lives with the foster parents . . . . The [foster parents]
              were neighbors of the family who volunteered to take the children into
              their home at the time of removal and later became foster parents.

The trial court therefore concluded that it was in the Children’s best interest to terminate
Mother’s parental rights. We agree.

       Mother’s argument regarding this issue is grounded in her contention that the trial
court’s finding was “fatally flawed” because the court “failed to make specific factual
findings” as to the best interest analysis. Contrary to Mother’s assertion, the trial court’s
findings indicate that it analyzed the factors contained in Tennessee Code Annotated § 36-1-

                                              -19-
113(i) in determining that termination was in the Children’s best interest. In particular, the
trial court’s findings show that it weighed the following factors against maintaining Mother’s
parental rights: (1) failure to make adjustment of circumstance, conduct, or conditions as to
make it safe and in the Children’s best interest to be in Mother’s home; (2) failure to effect
a lasting adjustment after reasonable efforts by DCS for such a period of time that adjustment
does not reasonably appear possible; (4) lack of a meaningful relationship between Mother
and the Children due to the Children’s having resided the majority of their lives with the
foster parents; (5) negative effect a change of caretakers and physical environment is likely
to have on the Children’s emotional, psychological, and medical condition; (6) neglect shown
toward the Children while in Mother’s home; (7) criminal activity and use of controlled
substances in the home; and (8) Mother’s mental status in terms of her drug addiction that
would prevent her from effectively providing safe and stable care and supervision.

       At trial, the court noted Mother’s love for the Children, overall honesty with the court
regarding her addiction problems, and repeated attempts to rehabilitate herself. The court
found, however, that Mother had been unable to make the changes necessary to allow the
Children’s safe return to her care. In regard to the statutory factors, we note also that
Mother’s visitation with the Children was demonstrated to be sporadic and that Mother
undisputedly did not pay child support at any time while the Children were in protective
custody. See Tenn. Code Ann. §§ 36-1-113(i)(3), (9); White, 171 S.W.3d at 194 (taking
notice of the appellate record in affirming the trial court’s best interest findings). 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 Children’s best interest.

                                       IX. Conclusion

        The decision of the trial court is affirmed in part and reversed in part. We reverse the
trial court’s finding that Mother abandoned the Children through wanton disregard for their
welfare prior to her incarceration. We affirm the trial court’s judgment in all other respects.
Costs on appeal are assessed equally to the appellant, Fleesha J., and the appellee, the State
of Tennessee, Department of Children’s Services. This case is remanded to the trial court,
pursuant to applicable law, for enforcement of the trial court’s judgment terminating parental
rights and collection of costs assessed below.




                                                     _________________________________
                                                     THOMAS R. FRIERSON, II, JUDGE



                                              -20-
