                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                Assigned on Briefs June 2, 2016

                                    IN RE KENDRA P. ET AL.

                     Appeal from the Juvenile Court for Sevier County
                     Nos. 15-000940, 15-000941, 15-000942, 15-000943
                                 Dwight E. Stokes, Judge


                   No. E2015-02429-COA-R3-PT-FILED-JULY 28, 2016


Mother appeals the termination of her parental rights to her seventeen-year-old daughter.
We have concluded that the Department failed to prove by clear and convincing evidence
that it is in the child’s best interest to terminate her mother’s parental rights in part
because the child is seventeen years old, is not a candidate for adoption, and intends to
maintain a relationship with Mother when she turns eighteen. Therefore, we reverse the
termination of Mother’s parental rights to her seventeen-year-old daughter.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Reversed

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the Court, in which THOMAS
R. FRIERSON, II, and KENNY W. ARMSTRONG, JJ., joined.

Dean Curtis Griffey, Morristown, Tennessee, for the appellant, Debbie S.1

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

                                              OPINION

       The Tennessee Department of Children’s Services (“the Department”) filed a
petition on July 17, 2015, to terminate the parental rights of Debbie S. (“Mother”) to her
four children. Following a trial, the juvenile court terminated Mother’s parental rights to
all four children. In this appeal, Mother only challenges the termination of her parental


        1
           This court has a policy of protecting the identity of children in parental termination cases by
initializing the last names of the parties.
rights to Kendra P., the oldest of her four children, who was born in May 1999 and will
reach the age of majority in approximately ten months from the filing of this opinion.2

       The relevant events leading up to the filing of the petition to terminate the parents’
parental rights include the following. The Department removed the children on July 10,
2014, and they have been in foster care continuously ever since. Mother was in jail from
June 10, 2014, until August 18, 2014. Thus, she was in jail when the children were
removed. On July 14, 2014, the Sevier County Juvenile Court issued an emergency
protective custody order placing the children in temporary state custody. In the same
order the court further found that the Department made reasonable efforts to prevent
removal by providing Family Support Services in the months leading up to the removal.
On September 10, 2014, the juvenile court adjudicated the children dependent and
neglected.

        Mother signed the permanency plan on September 2, 2014. The juvenile court
ratified the initial permanency plan on September 10, 2014 as being in the children’s best
interests and found that the requirements were reasonably related to remedying the
reasons for foster care. The plan was amended to include the requirement to complete an
alcohol and drug assessment and follow all recommendations. Mother attended this
hearing and had the benefit of appointed counsel throughout the process.

       The permanency plan was revised on January 6, 2015. It restated the requirements
of the first plan except that a goal of “Adoption” was added. The revised plan also
restated the need for Mother to find stable housing and to actively participate in the
required alcohol, drug, and mental health treatment as recommended. Mother signed the
revised plan on March 11, 2015.

       On April 1, 2015, the juvenile court ratified the revised permanency plan as in the
children’s best interests and found that the revised requirements were reasonably related
to remedying the conditions requiring foster care. The order noted that Mother had
completed various assessments but had not otherwise made progress on the permanency
plan. The order also noted that she needed to show “considerable progress” in the future.

        While all four children were placed in the same foster home initially, Kendra was
later separated from her younger siblings due in part to behavioral issues and her age. In
addition, Kendra had previously functioned as a parent for her three younger siblings,
who still “relied on Kendra so much to parent them,” which conflicted with the role of

        2
          The parental rights of Glenn P., the father of Kendra P., were also terminated, and he has not
appealed. Accordingly, the trial courts findings that solely pertain to Father have been omitted because he
did not appeal the termination of his parental rights.



                                                   -2-
the foster parents.3 By the time of trial, the three younger siblings, Glenn Jr., who was 6,
Aliyah, who was 8, and Malachi, who was 10, were residing in the same pre-adoptive
foster home where they were thriving. As for Kendra, who was 16 years old at the time of
trial, she was residing in a separate foster home that, significantly, was not a pre-adoptive
home.

       In the petition to terminate, the Department alleged, inter alia, that Mother had not
substantially complied with the requirements set out in the permanency plans. The
petition further alleged that Mother abandoned the children due to multiple incarcerations
for various criminal offenses including driving under the influence, the sale of counterfeit
controlled substances, the delivery of Schedule III controlled substances, and shoplifting,
which exhibited a wanton disregard for the children’s welfare. It was further alleged that
termination was in the children’s best interests because Mother abuses drugs and alcohol,
which consistently renders her unable to care for the children in a safe and stable manner.

        The case was tried on November 13, 2015, and the court heard testimony from
Mother; Sarah Guy, a former Resource Coordinator with Omni Visions; and Jan Gardner,
a Family Service Worker with the Department who served as the Case Manager on this
case continuously since September 2014.4 The Department also submitted several
certified copies of convictions, case recordings, and a printout showing the services the
Department provided. The final order that followed states “[t]his family’s life has been
unstable and erratic for a long time. The parents’ behaviors have created significant risks
for neglect and actual neglect over these children.”

       The court found that two grounds for termination were applicable to Mother: pre-
incarceration conduct exhibiting wanton disregard for the welfare of the children
(“wanton disregard”) and substantial non-compliance with the parenting plan. See Tenn.
Code Ann. §§ 36-1-102(1)(A)(iv), -113(g)(1) & (2). Regarding wanton disregard, the
court found that at the time of the filing of the petition Mother was incarcerated, that she
was served with the summons at the jail, and she was not released until October 5, 2015.

       3
           The conflict was explained by Case Manager Jan Gardner as follows:

       [Kendra’s] a precious, precious child. She has been a parent to her younger siblings. That
       is why she doesn’t live with her younger siblings because it’s very difficult for Kendra --
       for the younger siblings to rely on an adult parent because they’ve relied on Kendra so
       much to parent them. And she’s assumed that responsibility up until coming into foster
       care. At that time, she could see the conflict that was causing. And she actually asked to
       be moved into a different foster home away from her younger siblings because . . . she
       does want their well-being.
       4
          According to Jan Gardner, Omni Visions is a company with which the Department contracted
for services.



                                                  -3-
The court also found that Mother was incarcerated twice while the children were in the
Department’s custody. The court went on to state that it considered Mother’s pre-
incarceration behavior, which included multiple episodes of theft, narcotic abuse, and
violations of probation. Based upon the foregoing, the juvenile court concluded that the
Department had proven the ground of wanton disregard pursuant to Tennessee Code
Annotated §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv) by clear and convincing evidence.

       The juvenile court also found that the Department had proven a second ground
that was applicable to Mother: substantial non-compliance with a permanency plan. See
Tenn. Code Ann. § 36-1-113(g)(2). In pertinent part, the juvenile court found that Mother
participated in the development of the permanency plans, which called upon her to
complete some very basic requirements, namely to obtain and maintain suitable housing,
to seek employment, and provide a safe, drug-free environment for the children. The
plans also called upon Mother to complete an alcohol and drug assessment, to complete
mental health assessments, and to follow all recommendations.

       The court found that Mother completed drug treatment while in jail and
participated in the recommendations that resulted from her mental health assessment.
However, although Mother was out of jail, she had not obtained suitable housing or
employment. The court found that she resided in a one-room apartment with a friend, was
not employed, and had no means of income. Further, the court found that Mother relied
on the goodwill of friends to survive and did not have the resources to buy food or
clothes for herself or her children.

       Based upon the foregoing findings, the juvenile court concluded that the
Department had proven the ground of substantial non-compliance with the permanency
plan under Tennessee Code Annotated §§ 36-1-113(g)(2) and 37-2-403(a)(2).

       Having found two grounds for terminating Mother’s parental rights, the juvenile
court conducted a best interest analysis. The entirety of the juvenile court’s best interest
findings read as follows:

       The Court finds that the facts and circumstances in this case warrant a
       finding of best interest by clear and convincing evidence. This Court
       carefully considered the factors as enumerated in Tenn. Code [Ann. §] 36-
       1-113(i) and finds that several of them are apparent by clear and convincing
       evidence. The Court notes the first factor in particular as weighing strongly
       in favor of finding that the State has met its burden of proof, namely:

              (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.

                                           -4-
      Pursuant to [Tenn. Code Ann. §] 36-1-113(i) and the associated case law
      such as White v. Moody, 171 S.W. 3d 919 (Tenn. Ct. App. 2004) and In Re
      Giorgianna H., 205 S.W. 3d 508 (Tenn. Ct. App. 2006), once a parent has
      been found to be unfit, the interests of the parent and the child diverge. The
      focus of the proceedings shifts to the best interest of the child. Three of
      these children, Aliyah, Glenn Jr. and Malachi, are in a foster home which is
      a loving, stable home where the children appear to be thriving and the court
      is concerned with continuity of placement. This is a preadoptive placement.
      The children are in therapy and their educational and behavioral needs are
      being met in that home. As we stand today, father has not visited nor
      supported. Mother has never supported the children and she admits that she
      does not have suitable housing for the children.

      On closing, [M]other’s counsel argued against termination of [Kendra P.]
      based upon Kendra’s unique circumstances, her bond with the mother and
      her current, stated wishes not to be adopted. The evidence reflects that this
      child has recently been open to adoption though. It is clear from the record
      that this child has been made to “parent” the other children; that [Mother]
      put Kendra in that role and that Kendra would have a greater opportunity to
      find a forever home if she was in the full guardianship of the Department of
      Children’s Services. The Department’s counsel expressed optimism that the
      Department could find a suitable pre-adoptive home and that Kendra might
      change her mind (again) about adoption. Guardian Ad Litem took that view
      also which this Court shares. Kendra deserves the opportunity to move on
      with her life. This termination of parental rights as to both parents allows
      her to do that. By clear and convincing evidence, and pursuant to Tenn.
      Code [Ann.] § 36-1-113(i), the Court finds that it is in the best interest
      of the children to terminate the parental rights of [Mother] and
      [Father].

(Emphasis in original).

       Based upon its findings and conclusions of law, the juvenile court terminated
Mother’s parental rights to all four children. The final judgment was entered on
November 18, 2015. Mother filed a timely notice of appeal; however, as noted earlier,
she only appeals the termination of her parental rights to Kendra, the oldest of her
children. Mother does not appeal the termination of her parental rights to her three
younger children.




                                          -5-
                                          ISSUES

        Mother’s only issue on appeal is that the evidence fails to clearly and convincingly
demonstrate that it is in Kendra’s best interest for Mother’s parental rights to be
terminated. Although Mother does not challenge the grounds for terminating her parental
rights, we shall also examine the grounds for terminating Mother’s parental rights. See In
re Carrington H., 483 S.W.3d 507, 525-26 (Tenn. 2016) (“[I]n an appeal from an order
terminating parental rights the Court of Appeals must review the trial court’s findings as
to each ground for termination and as to whether termination is in the child’s best
interests, regardless of whether the parent challenges these findings on appeal.”)

                                 STANDARD OF REVIEW

       “To terminate parental rights, a trial court must determine by clear and convincing
evidence not only the existence of at least one of the statutory grounds for termination but
also that termination is in the child’s best interest.” In re F.R.R., III, 193 S.W.3d 528,
530-31 (Tenn. 2006); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Tenn.
Code Ann. § 36-1-113(c)). We review findings of fact made by the trial court de novo
upon the record “accompanied by a presumption of the correctness of the finding, unless
the preponderance of the evidence is otherwise.” In re F.R.R., III, 193 S.W.3d at 530-31
(quoting Tenn. R. App. P. 13(d)).

       “In light of the heightened burden of proof in termination proceedings, however,
the reviewing court must make its own determination as to whether the facts, either as
found by the trial court or as supported by a preponderance of the evidence, amount to
clear and convincing evidence of the elements necessary to terminate parental rights.” In
re Carrington H., 483 S.W.3d at 524; see In re Bernard T., 319 S.W.3d 586, 596-97
(Tenn. 2010). The trial court’s ruling regarding whether the evidence sufficiently
supported termination is a conclusion of law, which we review de novo with no
presumption of correctness. See In re Carrington H., 483 S.W.3d at 524.

                                        ANALYSIS

       Proceedings to terminate parental rights are involuntary in nature; therefore, they
implicate federal and state constitutional concerns. In re Angela E., 303 S.W.3d 240, 249
(Tenn. 2010). The Tennessee Constitution gives parents a right of privacy to care for their
children without unwarranted state intervention unless there is a substantial danger of
harm to the child. In re Swanson, 2 S.W.3d 180, 187 (Tenn. 1999) (citing Hawk v. Hawk,
855 S.W.2d 573, 579 (Tenn. 1993)). Although fundamental, this right is not absolute, and
a parent may forfeit this right by abandoning or otherwise engaging in conduct that
substantially harms the child. Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002); In
re J.C.D., 254 S.W.3d 432, 437 (Tenn. Ct. App. 2007).


                                           -6-
       Termination proceedings in Tennessee are governed by statute, and our Supreme
Court has discussed the statutory component of such proceedings as follows:

       Pursuant to section 36-1-113(c):

       (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 party petitioning for termination carries the burden of making both of
       these showings. In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004);
       In re S.M., 149 S.W.3d 632, 639 (Tenn. Ct. App. 2004). . . .

       Our statute sets forth the available grounds for termination of parental
       rights. See Tenn. Code Ann. § 36-1-113(g); Jones v. Garrett, 92 S.W.3d
       835, 838 (Tenn. 2002). The petitioner need only establish the existence of
       one of those statutory grounds to support a termination. Valentine, 79
       S.W.3d at 546. If the petitioner establishes grounds for termination, only
       then does the court determine whether termination is in the best interests of
       the child. In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005); White v.
       Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App. 2004). The statute
       enumerates factors for the best interests analysis that the court “shall
       consider,” but, as opposed to the inquiry into grounds for termination,
       the best interests analysis “is not limited to” the factors enumerated in
       the statute. Tenn. Code Ann. § 36-1-113(i); see In re Audrey S., 182
       S.W.3d 838, 878 (Tenn. Ct. App. 2005).

In re Angela E., 303 S.W.3d at 250-51 (emphasis added; footnotes omitted).

        The termination of parental rights must be based upon a finding by the court “by
clear and convincing evidence” that the grounds for termination have been established
and that termination of the parent’s rights is in the best interest of the child. Tenn. Code
Ann. § 36-1-113(c). Thus, clear and convincing evidence is required for both steps of this
process. In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at 250. “Clear
and convincing evidence enables the fact-finder to form a firm belief or conviction
regarding the truth of the facts, and eliminates any serious or substantial doubt about the
correctness of these factual findings.” In re Bernard T., 319 S.W.3d at 596 (internal
citations omitted); Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn. 1992);

                                           -7-
O’Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995). Such evidence should
produce in the fact-finder’s mind a firm belief or conviction as to the truth of the
allegations sought to be established. O’Daniel, 905 S.W.2d at 188. In contrast to the
preponderance of the evidence standard, clear and convincing evidence should
demonstrate that the truth of the facts asserted is “highly probable” as opposed to merely
“more probable” than not. Lettner v. Plummer, 559 S.W.2d 785, 787 (Tenn. 1977);
Goldsmith v. Roberts, 622 S.W.2d 438, 441 (Tenn. Ct. App. 1981); Brandon v. Wright,
838 S.W.2d 532, 536 (Tenn. Ct. App. 1992).

                                 I. WANTON DISREGARD

       The applicable definition of abandonment for purposes of this action to terminate
parental rights reads:

      [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).

        Petitioners can establish this ground for termination by demonstrating that the
parent was incarcerated at the time of the institution of the proceeding and that the
parent’s conduct prior to that period of incarceration demonstrated a wanton disregard for
the welfare of the child or children. See id.; In re Audrey S., 182 S.W.3d 838, 870-71
(Tenn. Ct. App. 2005). In assessing the parent’s conduct, this court is not limited to the
four-month period before the institution of the relevant proceeding and may consider
conduct that occurred at any point before the parent was incarcerated. See In re Audrey
S., 182 S.W.3d at 871. As for the type of conduct that demonstrates wanton disregard,
this court has “repeatedly held that probation violations, repeated incarceration, criminal
behavior, substance abuse, and the failure to provide adequate support or supervision for
a child can, alone or in combination, constitute conduct that exhibits a wanton disregard
for the welfare of a child.” Id. at 867-68.




                                           -8-
      The juvenile court made the following findings regarding the ground of
abandonment based on willful and wanton conduct:

      The Court finds that, at the time of the filing of the Department’s petition,
      both parents were incarcerated. Jan Gardner testified, and the proof is
      unrebutted, that [the Department] provided services to the parents in the
      late Spring, 2015 while they were both in the jail. Father was not released
      until approximately May 21, 2015 while mother was served with the
      summons at the jail. Mother was not released until October 5, 2015. Mother
      was incarcerated twice while the children were in custody. Their
      incarceration serves only as the triggering event; the Court has considered
      their pre-incarceration behavior which includes their multiple episodes of
      theft and narcotic abuse, and her violation(s) of probation.

      The Department introduced exhibits Collective 12 and Collective 22 which
      consisted of certified copies of the parents’ convictions. They include the
      following:

             a. On 11-9-2004, mother pled guilty to DUI 1st (offense date
             8-9-2004);
             b. On 11-9-2004, mother pled guilty Reckless Endangerment
             (offense date was also 8-9-2004). She had a three-year old
             child in her vehichle [sic] on this date.
             c. On 8-19-2013, mother was convicted of Sale of Counterfeit
             Controlled substance (offense date 10-16-2012);
             d. On 8-19-2013, mother was convicted of Delivery of
             Schedule III controlled substance (offense date 10-16-2012);
             e. On 11-19-2013 mother pled guilty to Shoplifting (incident
             occurred on 8-3-2013);
             f. On 6-24-2014, mother pled guilty to contributing to the
             delinquency of a minor (offense date of 5-9-2014). Malachi
             and Aaliyah had accrued many unexcused absences.
             g. On 6-24-2014, mother pled guilty to violation of probation
             (violation date of 6-6-2014)
             h. On 3-6-2015; mother pled guilty to violation of probation
             (violation date of 10-21-2014);

             ....

      Based on the foregoing findings, the juvenile court found the Department had
proven by clear and convincing evidence the requirements of abandonment pursuant to
Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv).


                                          -9-
       As noted above, abandonment includes the parent having engaged in conduct prior
to incarceration that exhibits a wanton disregard for the welfare of the child. See Tenn.
Code Ann. § 36-1-102(1)(A)(iv). Further, “probation violations, repeated incarceration,
criminal behavior, substance abuse, and the failure to provide adequate support or
supervision for a child can, alone or in combination, constitute conduct that exhibits a
wanton disregard for the welfare of a child.” In re Audrey S., 182 S.W.3d at 868. The
evidence does not preponderate against the trial court’s findings that Mother had been
convicted of the above-listed offenses. Additionally, these offenses constitute the kind of
conduct that exhibits wanton disregard for the welfare of a child. See id. Consequently,
the Department has proven the above criteria by clear and convincing evidence, and we
affirm the juvenile court’s finding that the Department proved the ground of wanton
disregard.

            II. SUBSTANTIAL NON-COMPLIANCE WITH A PERMANENCY PLAN

       In order to prove the ground of substantial non-compliance with a permanency
plan, the Department must make two showings. First, it must demonstrate that the
requirements of the permanency plan are reasonable and related to remedying the
conditions that caused the child to be removed from the parents’ custody initially. In re
M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004); see Tenn. Code Ann.
§ 37-2-403(a)(2)(C). In order to satisfy this requirement, the trial court must make a
finding that the plan’s requirements are reasonable “in conjunction with the
determination of substantial noncompliance under [Tenn. Code Ann.] § 36-1-113(g)(2).”
In re Valentine, 79 S.W.3d at 547.

        Second, the Department must demonstrate that the “noncompliance is substantial
in light of the degree of noncompliance and the importance of the particular requirement
that has not been met.” In re M.J.B., 140 S.W.3d at 656. “Substantial” means “[o]f real
worth and importance.” In re Valentine, 79 S.W.3d at 548 (quoting Black’s Law
Dictionary 1428 (6th ed. 1990)). Thus, “[t]rivial, minor, or technical deviations” from the
requirements of a permanency plan do not amount to substantial noncompliance. In re
M.J.B., 140 S.W.3d at 656. Terminating parental rights based on substantial
noncompliance “requires more proof than that a parent has not complied with every jot
and tittle of the permanency plan.” Id.

      The juvenile court made the following findings regarding the ground of substantial
non-compliance:

      Both parents have failed to comply in a substantial manner with those
      reasonable responsibilities set out in the foster care plans related to
      remedying the conditions which necessitate foster care placement. The
      Department developed plans which were subsequently ratified by the
      Sevier County Juvenile Court. The parents, participated in the development

                                          - 10 -
      of the permanency plans which called for them to complete some very basic
      requirements, namely, to obtain and maintain suitable housing, to seek
      employment, and to be able to provide a safe drug free environment for
      their children. The plans also called for them to complete an alcohol and
      drug assessment and to follow all recommendations and to complete mental
      health assessments and follow all recommendations. [Father], other than
      completing the alcohol and drug assessment and the mental health
      assessment, has made very little progress or otherwise shown that he has
      done anything to rectify the initial reasons for removal.

      By contrast, mother was able to complete more requirements. Mother did
      complete drug treatment while in jail and she also participated in the
      recommendations following her mental health assessment, namely,
      individual therapy. By the time of the hearing though mother had not
      obtained suitable housing. She resided in a room apartment with a friend;
      she was not employed or had any means of income although she stated that
      she had worked one hour at McDonalds Mother is not able to feed or clothe
      herself left alone her children. Mother admitted that she relies on the
      goodwill of friends. Her plan is to get better housing and to get a job but
      she did not have that at the time of trial. By clear and convincing evidence,
      the requirements of Tenn. Code [Ann.] §§ 36-1-113(g)(2) and 37-2-
      403(a)(2) have been met and this adverse finding is against both
      parents. . . .

        The record demonstrates that the requirements of the permanency plan were
reasonable and related to remedying the conditions that caused Kendra to be removed
from her mother’s custody. See In re M.J.B., 140 S.W.3d at 656; see also Tenn. Code
Ann. § 37-2-403(a)(2)(C). The record also demonstrates that Mother’s noncompliance
was substantial in light of the importance of the requirements Mother failed to satisfy. In
re M.J.B., 140 S.W.3d at 656. Stated another way, Mother’s failures are more than
“[t]rivial, minor, or technical deviations . . . .” Id. Therefore, we affirm the juvenile
court’s finding that the Department proved the ground of substantial noncompliance with
the permanency plan.

                           III. BEST INTERESTS OF THE CHILD

       Mother contends the Department failed to prove by clear and convincing evidence
that termination of her parental rights was in Kendra’s best interest. Specifically, she
contends it is not in Kendra’s best interest because Kendra desires to maintain contact
with her mother “at any cost” and Kendra’s chances of being adopted are “slim.”

      As noted earlier, the Department bears the burden to prove, by clear and
convincing evidence, at least one statutory ground for termination and that termination is

                                          - 11 -
in the best interest of the child. Tenn. Code Ann. § 36-1-113(c); In re Valentine, 79
S.W.3d at 546. Although it is a rare occurrence, termination of an unfit parent’s parental
rights is not always in the child’s best interest. In re Audrey S., 182 S.W.3d at 877.
“While a finding of parental unfitness is a necessary prerequisite to the termination of
parental rights, a finding of unfitness does not necessarily require that the parent’s rights
be terminated.” Id. (citing White v. Moody, 171 S.W.3d 187 (Tenn. Ct. App. 2004), perm.
app. denied (Tenn. Mar. 21, 2005); In re Termination of Parental Rights to Alexander V.,
271 Wis.2d 1, 678 N.W.2d 856, 863 (2004)). Because not all parental misconduct is
irredeemable, Tennessee recognizes the possibility that “terminating an unfit parent’s
parental rights is not always in the child’s best interests.” Id.

       In the context of terminating parental rights, the term “best interest” is not defined
by statute. In re Dominique L.H., 393 S.W.3d 710, 717 (Tenn. Ct. App. 2012). An
excellent review of the nuances of a best interest analysis is set forth in In re Audrey S.,
182 S.W.3d at 877-79. It reads in pertinent part:

       In recent years, the Tennessee General Assembly, like other state
       legislatures, has undertaken to codify the factors that courts should consider
       when called upon to ascertain a child’s best interests in various
       circumstances. In termination of parental rights cases such as this one, the
       General Assembly has provided the courts with a non-exclusive list of nine
       factors to consider. Tenn. Code Ann. § 36-1-113(i). Thus, ascertaining a
       child’s best interests in a termination proceeding is a fact-intensive inquiry
       requiring the courts to weigh the evidence regarding the statutory factors, as
       well as any other relevant factors, to determine whether irrevocably
       severing the relationship between the parent and the child is in the child’s
       best interests. White v. Moody, 171 S.W.3d at 192.

       The child’s best interests must be viewed from the child’s, rather than the
       parent’s, perspective. White v. Moody, 2004 WL 3044909, at *5; In re
       Hammett, No. 245221, 2003 WL 22416515, at *2 (Mich. Ct. App. Oct.23,
       2003); In re L.N., Jr., 690 N.W.2d 245, 247 (S.D. 2004); In re Marriage of
       Pape, 139 Wash.2d 694, 989 P.2d 1120, 1130 (1999). A focus on the
       perspective of the child is the common theme running through the list of
       mandatory factors specified in Tenn. Code Ann. § 36-1-113(i). By the time
       the court reaches the best interests analysis, it will have already made a
       finding, supported by clear and convincing evidence, that the parent is unfit
       or poses a risk of substantial harm to the welfare of the child. Accordingly,
       the exclusive focus on the perspective of the child in the best interest
       analysis does not contravene the parent’s constitutional rights.

       Ascertaining a child’s best interests does not call for a rote examination of
       each of Tenn. Code Ann. § 36-1-113(i)’s nine factors and then a

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       determination of whether the sum of the factors tips in favor of or against
       the parent. The relevancy and weight to be given each factor depends on the
       unique facts of each case. Thus, depending upon the circumstances of a
       particular child and a particular parent, the consideration of one factor may
       very well dictate the outcome of the analysis. White v. Moody, 171 S.W.3d
       at 194.

In re Audrey S., 182 S.W.3d at 877-78 (footnotes omitted).

       Although she did not articulate it as such, Mother relies on the reasoning set forth
immediately above whereby ascertaining a child’s best interest is not as simple as
calculating whether the sum of the statutory factors tip in favor of or against termination.
See White, 171 S.W.3d at 194. As for a rote examination and summation of each factor,
Mother admits that a majority of the statutory factors weigh in favor of termination. For
example, she admits not having effected changes in her life that would allow her to obtain
custody of Kendra, not finishing some steps of the permanency plan, including finding
stable housing, income, and transportation, and not having paid child support. However,
she insists she maintained visitation with Kendra when possible. Despite “some hiccups,”
as she refers to her arrests, Mother insists that termination of her parental rights is not in
Kendra’s best interest because of two primary considerations: the fact that Kendra is not a
candidate for adoption and “the very meaningful, established relationship” between
Kendra and Mother.

        The record supports Mother’s contention that Kendra is not a candidate for
adoption. Kendra was born in May 1999. Thus, she is seventeen years old and will reach
the age of majority less than ten months after this opinion is filed. Additionally, Kendra is
not in a pre-adoptive home and therefore is not a candidate for adoption. Contrary to the
“expressed optimism” of the Department’s counsel who represented to the juvenile court
“the Department could find a suitable pre-adoptive home”―an assertion that is not
supported by any fact in the record―the evidence supports Mother’s contention that
Kendra is not going to be adopted by anyone. When asked at trial if the children were in a
pre-adoptive home, Ms. Gardner, the Department’s Case Manager, testified that
“Malachi, Aaliyah, and Glenn, Jr., are all in a preadoptive home,” but as for Kendra’s
situation:

       Kendra has vacillated about adoption, not adoption. We had a meeting
       just this past week and she would prefer not to be adopted unless she
       could potentially be adopted by the foster parents that are parenting
       the younger children. That’s not something that’s going to be possible
       at this juncture.

(Emphasis added).


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       In response to the question, “With respect to Kendra, do you believe it’s in the
best interest of Kendra to terminate [Mother’s] parental rights?” Ms. Gardner stated:

       I think Kendra will not be able to move forward in accepting a possible
       adoptive placement. She is still very conflicted and changes between
       wanting to be adopted, not wanting to be adopted. She wanted to be
       adopted, of course, by the three younger children’s family . . . that they’re
       with. But that’s not going to be possible. [S]he reported to me that she
       wanted to be really honest, and even if we terminated her mother’s
       parental rights, she was going to maintain contact.

(Emphasis added). Thus, the unique circumstances of this case make an adoption of
Kendra most improbable.

        Furthermore, the record supports Mother’s contention that she and Kendra have “a
very meaningful, established relationship.” See Tenn. Code Ann. § 36-1-113(i)(4). When
Mother was asked at trial to explain her relationship with Kendra, she stated: “Kendra,
she’s my best friend. I mean, I was very young when I had her. I was eighteen. So, we
kind of grew up together. And she’s my best friend.” The close relationship between
them is also supported by the testimony of Ms. Gardner. As Ms. Gardner explained at
trial, Kendra told Ms. Gardner there was no way that she was going to lose contact with
her mother. Furthermore, Kendra told Ms. Gardner she would do what it takes, “even if it
means sneaking,” to make sure that she can continue to have a relationship with her
mother. When asked at trial if she believed Kendra “has the means and that she will
follow through” with maintaining contact with Mother “regardless of what happens,” Ms.
Gardner stated “Absolutely.” Thus, the evidence in this record clearly established that the
very meaningful, established relationship between Mother and Kendra was a two-way
street.

        In furtherance of her position that termination of her parental rights in not in
Kendra’s best interest, Mother relies on our reasoning in In re C.M.S., No. W2004-
00295-COA-R3-PT, 2004 WL 2715331 (Tenn. Ct. App. Nov. 19, 2004). In that case the
trial court found it was in the best interest of a child with limited mental and emotional
capacities to terminate her mother’s parental rights. Id. at *3. On appeal, we reversed the
best-interests finding despite the fact that much of the evidence weighed against the
mother. Id. at *6, 8. This evidence included “the fact that [the child’s mother] has no
prospects of employment in the near future, her past failure to provide a safe and suitable
home for the minor child in the face of abuse, her lack of education, and the fact that [the
mother] had no suitable residence for the child at the time of trial.” Id. at *6.

       Notwithstanding these facts, we determined that terminating the mother’s parental
rights was not in the child’s best interest because it would disrupt the child’s life without
the benefit of allowing C.M.S. to be adopted. See id. at *6-8. C.M.S. had a meaningful

                                           - 14 -
relationship with her mother and enjoyed visiting her. Id. at *7. Visitation with the
mother was one part of “an emotional anchor” for the C.M.S., and removing that
relationship could “severely disrupt” her life. Id.

      Additionally, we found that maintaining the mother’s parental rights would not be
detrimental to C.M.S. because C.M.S. would remain in the custody of her foster family.
Id. We noted that

       the concerns regarding the instability of [the mother’s] living arrangement
       and her inability to properly care for C.M.S. are somewhat diminished
       under the present circumstances of supervised visitation. There is no
       evidence in the record that [the mother’s] visits hinder C.M.S. or have a
       negative impact on C.M.S.’ emotional status. Moreover, because C.M.S.
       resides in the exclusive physical custody of her foster parents, the physical
       or permanent condition of [the mother’s] home, under these particular
       circumstances, is irrelevant.

Id. Finally, we noted that C.M.S. did not have any reasonable prospects for
adoption. Id. We stated:

       While it is reasonable to assume that as a child ages, her chances of
       adoption generally diminish, we stress that C.M.S. is fourteen years old,
       and note that there is nothing in the record to indicate that she is a subject
       for adoption or currently has reasonable prospects for adoption. Based on
       C.M.S.’ advanced age, and her learning, emotional and behavioral
       difficulties, this Court is not optimistic that the child is or would be a likely
       candidate for adoption. Therefore, under the exceptional circumstances of
       this case, to deprive C.M.S. of her only natural family relationships,
       without any evidence of adoption prospects, may not be in her best interest.

Id. Consequently, terminating the mother’s parental rights would remove a stabilizing
relationship from the child’s life without the benefit of allowing the child to be adopted.
Id. at *8. Despite our holding that the mother’s parental rights should not be terminated,
we made it clear that “in no way” did we advocate a return of C.M.S. to the custody of
her mother “unless she makes a vast improvement in correcting the conditions reflected
in this record.” Id.

        Here, Kendra has a relationship with her mother and wants to keep her mother in
her life. Although Mother’s current housing arrangement and employment situation are
insufficient to allow her to care for Kendra, Kendra is currently in the custody of a foster
family, and denying a petition to terminate Mother’s parental rights will not change that.
See id. at *7; In re Valentine, 79 S.W.3d at 550. Further, it is most improbable that
terminating Mother’s parental rights will allow Kendra to be adopted. Kendra’s three

                                            - 15 -
younger siblings are all in the same pre-adoptive home, but Kendra cannot be part of their
new family. Thus, termination of Mother’s parental rights will accomplish nothing other
than setting Kendra adrift with no adoptive family.

       In White v. Moody, we reasoned, “depending upon the circumstances of a
particular child and a particular parent, the consideration of one factor may very well
dictate the outcome of the analysis.” See White, 171 S.W.3d at 194. The unique facts of
this case demonstrate that severing Kendra’s relationship with Mother without any
evidence of adoption prospects is not in her best interest. Based upon these facts, we
conclude that the Department failed to clearly and convincingly establish that termination
of Mother’s parental rights is in Kendra’s best interest.

                                    IN CONCLUSION

       Because the Department failed to establish by clear and convincing evidence that
termination of Mother’s parental rights is in Kendra’s best interest, the judgment
terminating Mother’s parental rights to Kendra is reversed. However, our decision does
not return Kendra to the custody of Mother. Instead, Kendra remains in the custody of the
Department. Therefore, this matter is remanded to the Juvenile Court for Sevier County
for further proceedings consistent with this opinion. Costs of appeal are assessed against
the Department of Children’s Services.


                                                    ______________________________
                                                    FRANK G. CLEMENT, JR., JUDGE




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