                                                                                                      06/21/2017
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                               Assigned on Briefs April 3, 2017

                                 IN RE SKYLAR P.,1 ET AL.

                   Appeal from the Juvenile Court for Bradley County
                        No. J-14-318    Kurt A. Benson, Judge


                                 No. E2016-02023-COA-R3-PT


Mother appeals the trial court’s decision to terminate her parental rights to two children
on the grounds of: (1) abandonment by failure to provide a suitable home; (2)
abandonment by willful failure to provide support; (3) substantial noncompliance with
the requirements of the permanency plans; and (4) persistence of conditions that
precipitated the children’s removal from Mother’s custody. The trial court found by clear
and convincing evidence that termination of Mother’s parental rights was in the best
interest of the children. We reverse in part and affirm in part.

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

ANDY D. BENNETT, J., delivered the opinion of the Court, in which CHARLES D. SUSANO,
JR., and KENNY W. ARMSTRONG, JJ., joined.

Emily Beth Brenyas, Chattanooga, Tennessee, for the appellant, Tabitha P.

Herbert H. Slatery, III, Attorney General and Reporter and Rachel Erin Buckley,
Assistant Attorney General, Nashville, Tennessee, for the appellee, Tennessee
Department of Children’s Services.




1
  This Court has a policy of protecting the identity of children in parental rights termination cases by
initializing the last names of the parties.
                                                  OPINION

                            I. FACTUAL AND PROCEDURAL BACKGROUND

      Tabitha P. (“Mother”) is the biological mother of Skylar P., born in August 2008,
and Tobyn G., born in October 2012 (together with Skylar, “the children”). Tracy P. is
Skylar’s biological father.2 Tobyn’s biological father is Denver S.3

        On August 27, 2014, the Tennessee Department of Children’s Services (“DCS”)
received a referral alleging that the children were exposed to drugs. DCS investigated
and discovered that Mother and the children were residing in a one-bedroom apartment
with Mother’s boyfriend, Jeremy A. (“Jeremy”), as well as another couple and their two
children. On September 3, 2014, Mother submitted to a drug screen and tested positive
for methamphetamine, amphetamine, and marijuana. Jeremy also submitted to a drug
screen and tested positive for methamphetamine, amphetamine, ecstasy, and marijuana.
Mother admitted that the adults smoked methamphetamine in the home while the children
were present, but she required that the children remain in the bedroom while the adults
used drugs. Financially, Mother depended on Jeremy’s disability check to provide for the
children because she was unemployed. The children entered DCS custody on September
5, 2014. On November 20, 2014, the juvenile court adjudicated the children dependent
and neglected because Mother was “unable to provide a safe and stable home for the
children due to instability and drug use.”

       Following the removal, DCS developed three permanency plans for the children
between 2014 and 2015. The initial permanency plan, developed on September 19, 2014,
and ratified by the trial court on September 25, 2014, listed a goal of “Return to Parent.”
In the second permanency plan, developed June 22, 2015, and ratified on July 9, 2015,
DCS amended the permanency plan goals to “Return to Parent” and “Adoption.” The
third permanency plan, developed on September 2, 2015, and ratified on September 10,
2015, listed the same goals as the second permanency plan. The permanency plans
required Mother to (1) obtain an alcohol and drug assessment and follow all
recommendations; (2) sign all required releases for DCS to ensure proper case
management; (3) submit to random drug screens; (4) refrain from being around those
who use or abuse illegal substances; (5) obtain a sponsor through Narcotics Anonymous
or Alcoholics Anonymous who has maintained sobriety for at least five years; (6)
participate in educational meetings and comply with Skylar’s individualized education
program (“IEP”); (7) obtain and maintain a stable residence for at least six months; (8)
provide DCS with a copy of a lease agreement in Mother’s name; (9) provide DCS with a
copy of a valid driver’s license, proof of car insurance, vehicle registration, or a

2
    On September 20, 2016, the trial court terminated Tracy P.’s parental rights. He did not appeal.
3
    Denver S. signed a waiver of interest on June 17, 2015. He is not a party to this appeal.
                                                      -2-
transportation plan; (10) maintain contact with the family service worker and inform the
worker of any change in circumstance within twenty-four hours; (11) provide proof of
legal income once obtaining employment or proof of disability income; (12) cooperate
with service providers and treatment plans for the children; (13) refrain from displaying
any acts of verbal or physical aggression in front of the children; (14) attend couples
counseling with Jeremy, follow all recommendations, and provide DCS with
documentation of completion; (15) continue medication management and follow
recommendations; and (16) request, in writing, an educational assessment for Skylar.

        DCS assigned Casie Byers as the case family service worker in September 2014.
At trial, Ms. Byers testified that Mother completed an alcohol and drug assessment,
submitted to random drug screens, signed all required releases for DCS to ensure proper
case management, and attended Skylar’s IEP meetings via telephone. Ms. Byers further
testified, however, that Mother failed to complete many of the tasks in the permanency
plans. Specifically, Mother failed to obtain sponsorship through Narcotics Anonymous
or Alcoholics Anonymous, to avoid individuals who used illegal substances, to maintain
a stable residence, and to provide a copy of a valid driver’s license, vehicle insurance and
registration, or a transportation plan.

        Ms. Byers testified that DCS assisted Mother in finding a suitable home during the
first four months following the children’s removal by providing Mother with a list of
housing resources and discussing with Mother which options she could afford.
According to Ms. Byers, she provided no assistance beyond the list of resources and
discussions because Mother always reported that she had made housing arrangements.
Ms. Byers testified that, in the two years between the children’s removal and trial,
Mother changed her residence at least five times. Ms. Byers further stated that each time
Mother moved, she failed to notify DCS of her change in circumstance within twenty-
four hours, as the permanency plans required. Although Mother lived in at least five
different residences, she provided only one lease agreement during the nearly two years
the children were in DCS custody.

      Ms. Byers testified that Mother and Jeremy had a hostile relationship but that she
was unaware of any domestic violence. In order to assist Mother in complying with the
permanency plans’ requirement concerning couples therapy, Ms. Byers provided Mother
with telephone numbers and a list of resources. Mother, however, failed to attend
couples counseling with Jeremy.

      At trial, Mother testified that she paid child support payments for December 2015
through March 2016. Mother stated that at the time she made the payments, she was
working at Hardee’s for approximately forty-eight hours per week and was earning $7.75
per hour. According to Mother, the child support payments were garnished from her pay
checks every two weeks. Although Mother paid child support payments during this four-
month period, she failed to pay child support at other times while the children were in

                                           -3-
DCS custody. Consequently, Mother was incarcerated for failure to pay child support.
At the time of trial, Mother owed $3,000 in child support arrears. Mother testified that
she expected to remain incarcerated until November 23, 2016.

       Mother also testified about her residential instability. She admitted to residing in
multiple residences after the children entered DCS custody. Mother further admitted that
she still associated with individuals who used drugs. Specifically that, prior to her
incarceration, she resided with Sheree B., Jeremy’s relative, who had failed a hair follicle
test. During cross-examination, Mother admitted that she used methamphetamine four to
six months before trial.

       The children’s foster mother, Dana C. (“Foster Mother”), testified that the children
had resided with her and her husband for approximately ten months. Foster Mother
stated that the children had bonded with her and her husband since entering their home.
As support for this statement, Foster Mother testified that she gave the children different
options for what they could call her and her husband and told them it was their choice.
Foster Mother testified that the children chose to call her and her husband “mom” and
“dad.” She stated that she and her husband wished to adopt the children if they become
available for adoption.

       On April 4, 2016, DCS filed its petition to terminate Mother’s parental rights.
After DCS filed its petition, the children’s maternal grandparents filed a petition to
intervene, seeking custody of the children. The maternal grandparents had custody of
Mother’s oldest daughter, who is not at issue in this case. The trial court denied the
maternal grandparents’ petition in part because they waited until approximately twenty-
two months after the children entered DCS custody to file their petition, and because the
court had concerns about their health and income.

       The trial court heard the case on August 8, 2016. On September 20, 2016, the trial
court entered an order terminating Mother’s parental rights to the children. The trial
court found by clear and convincing evidence that Mother abandoned the children by
failing to provide a suitable home, abandoned the children by willful failure to support,
failed to substantially comply with the requirements of the permanency plans, and that
the conditions which precipitated removal still persisted with little chance those
conditions would be remedied at an early date. The trial court also found that it was in
the best interest of the children to terminate Mother’s parental rights.

       On appeal, Mother presents four issues for our review. Those issues can be
consolidated into two issues and restated as follows: (1) whether the trial court erred in
finding by clear and convincing evidence that grounds existed to terminate Mother’s
parental rights, and (2) whether the trial court erred in determining that termination of
Mother’s parental rights was in the best interest of the children.


                                           -4-
                               II. STANDARD OF REVIEW

       Under both the federal and state constitutions, a parent has a fundamental right to
the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645,
651 (1972); In re Angela E., 303 S.W.3d 240, 249-50 (Tenn. 2010); Nash-Putnam v.
McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996) (citing Nale v. Robertson, 871 S.W.3d
674, 678 (Tenn. 1994)). This right is not absolute, however. If a compelling state
interest exists, the state may interfere with parental rights. Nash-Putnam, 921 S.W.2d at
174-75 (citing Nale, 871 S.W.2d at 678). Our legislature has enumerated the grounds
upon which termination proceedings may be brought. See Tenn. Code Ann. § 36-1-
113(g). A parent’s rights may be terminated only where a statutory ground exists. In re
Matter of M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).

       Because terminating a parent’s fundamental parental rights has severe
consequences, termination cases require a court to apply a higher standard of proof. State
Dep’t of Children’s Servs. v. A.M.H., 198 S.W.3d 757, 761 (Tenn. Ct. App. 2006).
Consequently, a court must determine by clear and convincing evidence both that
grounds for termination exist and that termination is in the best interest of the child.
Tenn. Code Ann. § 36-1-113(c); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
“Clear and convincing evidence ‘establishes that the truth of the facts asserted is highly
probable, and eliminates any serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.’” In re Serenity B., No. M2013-02685-COA-R3-
PT, 2014 WL 2168553, at *2 (Tenn. Ct. App. May 21, 2014) (quoting In re M.J.B., 140
S.W.3d 643, 653 (Tenn. Ct. App. 2004) (citations omitted)).

       Because of the heightened standard of proof required in termination of parental
rights cases, we must adapt the customary standard of review established by Tenn. R.
App. P. 13(d). Id. In accordance with Tenn. R. App. P. 13(d), we review the trial court’s
findings of fact de novo with a presumption of correctness unless the evidence
preponderates otherwise. Id. Next, we must determine whether the facts establish the
existence of one or more grounds for termination by clear and convincing evidence. In re
M.J.B., 140 S.W.3d at 654.

                                     III. ANALYSIS

                                Grounds for Termination

       The trial court terminated Mother’s parental rights on four grounds: (1)
abandonment by failure to provide a suitable home; (2) abandonment by willful failure to
support; (3) substantial noncompliance with the permanency plans; and (4) the conditions
that caused the children’s removal still persisted. The existence of any one of these
statutory grounds will support the termination of Mother’s parental rights. In re
Valentine, 79 S.W.3d at 546.

                                          -5-
      A. Abandonment by Failure to Provide a Suitable Home

       Mother first argues that the trial court erred by finding that DCS proved by clear
and convincing evidence that she abandoned the children by failing to provide a suitable
home. Tennessee Code Annotated section 36-1-113(g)(1) provides for termination of
parental rights based upon the ground of abandonment “as defined in Tenn. Code Ann.
§ 36-1-102.” Several definitions of abandonment appear in Tenn. Code Ann. § 36-1-
102(1)(A). Relevant to this argument, Tenn. Code Ann. § 36-1-102(1)(A)(ii) defines
abandonment, in pertinent part, as follows:

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

(Emphasis added). In order to establish a suitable home, a parent or guardian must
provide more than an appropriate physical structure. In re Hannah H., No. E2013-
01211-COA-R3-PT, 2014 WL 2587397, at *9 (Tenn. Ct. App. June 10, 2014) (citing
State v. C.W., No. E2007-00561-COA-R3-PT, 2007 WL 4207941, at *3 (Tenn. Ct. App.
Nov. 29, 2007)). A parent or guardian must also provide a home that is “free from drugs
and domestic violence.” Id. (citing C.W., 2007 WL 4207941, at *3).

       The trial court found that DCS made reasonable efforts to assist Mother with
establishing a suitable home for the children. The trial court also found that Mother made
no reasonable efforts to provide a suitable home and that she likely would not be able to
provide a suitable home for the children in the immediate future.

                                           -6-
        As stated above, Tenn. Code Ann. § 36-1-102(1)(A)(ii) specifically requires DCS
to make reasonable efforts to assist the parents in establishing a suitable home “for a
period of four (4) months following the removal[.]”4 Here, the children were removed
from Mother’s home on September 5, 2014. Therefore, the relevant four-month period in
this case is September 6, 2014 through January 5, 2015. From the record before us, we
cannot conclude that DCS met its burden to demonstrate that it made reasonable efforts to
assist Mother with housing during the relevant statutory period. Specifically, there is no
evidence in the record to suggest that DCS made any effort to assist Mother with housing
beyond providing her with a list of housing resources and discussing with her the options
she could afford. We have previously held that DCS must do more than simply provide
parents with a list of housing resources to prove that it made reasonable efforts to assist
with housing. In re Isobel V.O., No. M2012-00150-COA-R3-PT, 2012 WL 5471423, at
*9 (Tenn. Ct. App. Nov. 8, 2012). At trial, Ms. Byers testified that she did not provide
further assistance because Mother “always seemed to have a place that she was getting
ready to move into.” Ms. Byers, however, admitted on cross-examination that she never
confirmed that Mother had a home she was preparing to move into because Ms. Byers
“just took [Mother’s] word for it for the most part . . . .”

        Mother argues that DCS should have done more to assist her in establishing a
suitable home despite the fact that she repeatedly told Ms. Byers she was preparing to
move into housing because DCS was aware that Mother had mental health issues. DCS
asserts that Mother has waived this argument because she did not raise it at trial. DCS is
correct that issues not raised at trial are generally considered waived on appeal. See
Lawrence v. Stanford, 655 S.W.2d 927, 929 (Tenn. 1983) (“It has long been the general
rule that questions not raised in the trial court will not be entertained on appeal.”). There
is, however, an exception to this general rule. The Tennessee Supreme Court recently
stated that:

        Rules 13(b) and 36(a) of the Tennessee Rules of Appellate Procedure,
        considered together, give appellate courts considerable discretion to
        consider issues that have not been properly presented in order to achieve
        fairness and justice. Heatherly v. Merrimack Mut. Fire Ins. Co., 43 S.W.3d
        911, 916 (Tenn. Ct. App. 2000) (citing Aaron v. Aaron, 909 S.W.2d 408,
        412 (Tenn. 1995)). “Taken together, these rules permit appellate courts to
        grant complete relief to the parties as long as they have been given fair
        notice and an opportunity to be heard on the dispositive issues.” Id. (citing


4
  The Tennessee Supreme Court has overruled the line of cases that “required DCS to prove by clear and
convincing evidence that it made reasonable efforts to reunify as a precondition to termination of parental
rights.” In re Kaliyah S., 455 S.W.3d 533, 555 n.34 (Tenn. 2015). The Court’s holding in that case does
not negate DCS’s obligation to make reasonable efforts to assist a parent in establishing a suitable home
as required by Tenn. Code Ann. § 36-1-102(1)(A)(ii). In re Yariel S., No. E2016-00937-COA-R3-PT,
2017 WL 65469, at *6 n.3 (Tenn. Ct. App. Jan. 6, 2017).
                                                   -7-
          Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 608
          (Tenn. Ct. App. 1999)).[5]

In re Kaliyah S., 455 S.W.3d at 540 (footnote omitted). In this case, we exercise our
discretion to address Mother’s argument regarding her mental health so as to achieve
fairness and justice.

        Examination of the record reveals that DCS knew shortly after the children entered
DCS custody that Mother had Attention Deficit Hyperactivity Disorder (“ADHD”) and
Bipolar Disorder. Specifically, DCS included Mother’s ADHD and Bipolar Disorder as a
concern in the initial permanency plan. Each subsequent permanency plan included
Mother’s ADHD and Bipolar Disorder as a listed concern and required her to continue
medication management and follow all recommendations. At trial, however, DCS
presented no evidence to show that it provided any services to facilitate Mother’s mental
health treatment. Indeed, at no point during trial did DCS present any evidence
demonstrating that it looked into the nature of Mother’s mental health issues or
considered how her mental health issues may have contributed to her substance abuse or
inability to secure stable housing. Mother repeatedly reported to DCS that she was close
to finding suitable housing. Despite knowing Mother had mental health issues, however,
DCS continued to accept “her word for it” and offered no assistance beyond providing a
list of resources and discussions. Thus, we conclude that the evidence preponderates
against the trial court’s finding that DCS expended reasonable efforts to assist Mother in
establishing suitable housing during the statutory period. We, therefore, hold that DCS
failed to prove by clear and convincing evidence the existence of the ground of
abandonment by failure to provide a suitable home.

          B. Abandonment by Failure to Support

      Mother next argues that the trial court erred by finding DCS proved by clear and
convincing evidence that she abandoned the children by willfully failing to make

5
    Tennessee Rule of Appellate Procedure 13(b) provides:

          Review generally will extend only to those issues presented for review. The appellate
          court shall also consider whether the trial and appellate court have jurisdiction over the
          subject matter, whether or not presented for review, and may in its discretion consider
          other issues in order, among other reasons: (1) to prevent needless litigation, (2) to
          prevent injury to the interests of the public, and (3) to prevent prejudice to the judicial
          process.

Tennessee Rule of Appellate Procedure 36(a) provides:

          [An appellate court] shall grant the relief on the law and facts to which the party is
          entitled or the proceeding otherwise requires and may grant any relief . . .; provided,
          however, relief may not be granted in contravention of the province of the trier of fact.
                                                     -8-
reasonable support payments during the four months prior to DCS filing the petition to
terminate her parental rights. On appeal, DCS elected not to defend this ground for
termination.

      As we previously mentioned, Tenn. Code Ann. § 36-1-113(g)(1) provides for the
termination of parental rights based upon the ground of abandonment “as defined in § 36-
1-102.” Relevant to this argument, Tenn. Code Ann. § 36-1-102(1)(A)(i) defines
abandonment, as follows:

       For a period of four (4) consecutive months immediately preceding the
       filing of a proceeding or pleading to terminate the parental rights of the
       parent or parents or the guardian or guardians of the child who is the
       subject of the petition for termination of parental rights or adoption, that the
       parent or parents or the guardian or guardians either have . . . willfully
       failed to support or have willfully failed to make reasonable payments
       toward the support of the child[.]

Whether a parent failed to support his or her child presents a question of fact. In re
Adoption of Angela E., 402 S.W.3d 636, 640 (Tenn. 2013). Whether a parent’s failure to
support constitutes willful abandonment, however, presents a question of law. Id.

        A parent’s failure to support a child constitutes “willful” conduct when he or she
“is aware of his or her duty to . . . support, has the capacity to do so, makes no attempt to
do so, and has no justifiable excuse for not doing so.” In re Audrey S., 182 S.W.3d 838,
864 (Tenn. Ct. App. 2005) (citing In re M.J.B., 140 S.W.3d at 654). A parent’s intent
determines whether a particular conduct is “willful.” Id. Because intent can rarely be
proven by direct evidence, the trier-of-fact infers intent from a parent’s actions or
conduct. Id. In this case, the relevant four-month time period is December 11, 2015
through April 10, 2016. Mother testified that she made child support payments between
December 2015 and March 2016 because the payments were garnished from her
paychecks every two weeks. The record includes a child support payment summary
showing that Mother made child support payments for January through March 2016.
Accordingly, we conclude that the evidence preponderates against a finding that Mother
failed to support the children during the four months prior to DCS filing its petition to
terminate her parental rights. We reverse the trial court’s termination of Mother’s
parental rights based upon the ground of abandonment by willful failure to support.

       C. Substantial Noncompliance

       Mother next contends that the trial court erred by finding that DCS proved by clear
and convincing evidence that she was substantially noncompliant with the permanency
plans and that the conditions precipitating removal still persisted. Mother combined the
two grounds of substantial noncompliance and persistence of conditions in her brief, but

                                            -9-
we will address each ground separately. We begin with the ground of substantial
noncompliance with the permanency plans.

       Tennessee Code Annotated section 36-1-113(g)(2) provides for the termination of
parental rights when “[t]here 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[.]” The fact that a parent is noncompliant with a
permanency plan is not sufficient to terminate parental rights. In re Valentine, 79 S.W.3d
at 548. Rather, a parent’s noncompliance with a permanency plan “must be substantial.”
Id.    Substantial noncompliance “should be measured by both the degree of
noncompliance and the weight assigned to that requirement.” Id. Whether a parent is
substantially noncompliant with a permanency plan is a question of law. Id.

        When determining whether a parent has failed to substantially comply with the
requirements of a permanency plan, a trial court must find that the requirements “‘are
reasonable and related to remedying the conditions which necessitate foster care
placement.’” Id. at 547 (quoting Tenn. Code Ann. § 37-2-403(a)(2)(C)). In this case, the
trial court found that the requirements of the permanency plans were reasonable and
related to remedying the conditions that caused the children’s removal from Mother’s
home.

        In the nearly two years between the children’s removal and trial, Mother complied
with the requirements of completing an alcohol and drug assessment, submitting to
random drug screens, and attending Skylar’s IEP meetings. Despite her compliance with
these requirements, however, Mother admitted during cross-examination that she had
used methamphetamine between four and six months prior to trial. She complied with
the requirement of providing proof of legal income when she began working at
McDonald’s, where she worked for one month. When Mother began working at
Hardee’s, however, she failed to provide DCS with proof of her employment. Further,
Mother failed to comply with the requirements of providing DCS with a copy of a lease
agreement in her name and maintaining residential stability for six months. Additionally,
she failed to comply with the requirements of obtaining sponsorship through Narcotics
Anonymous or Alcoholics Anonymous, attending couples counseling with Jeremy, and
following all recommendations. We conclude that this proof establishes by clear and
convincing evidence substantial noncompliance with the requirements of the permanency
plans. Thus, we hold that the trial court did not err by relying on this ground for
termination of Mother’s parental rights.

       We note that Mother asserts the trial court erred in finding clear and convincing
evidence of substantial noncompliance with the permanency plans because DCS should
have done more than provide her with a list of resources to assist her in complying with
the requirements of the permanency plans, especially in light of her mental health issues.
Although Mother’s brief does not directly state that DCS failed to expend reasonable

                                          - 10 -
efforts to assist her in complying with the permanency plans, a thorough examination of
that section of her brief indicates that is the argument she presents. The termination
statute regarding the ground of substantial noncompliance with the requirements of a
permanency plan contains no requirement that DCS expend reasonable efforts to assist a
parent in complying with the permanency plan requirements. See Tenn. Code Ann. § 36-
1-113(g)(2). Additionally, the Tennessee Supreme Court has stated the following:

      [T]he extent of DCS’s efforts to reunify the family is weighed in the court’s
      best-interest analysis, but proof of reasonable efforts is not a precondition
      to termination of the parental rights of the respondent parent. As with other
      factual findings made in connection with the best-interest analysis,
      reasonable efforts must be proven by a preponderance of the evidence, not
      by clear and convincing evidence. In re Audrey S., 182 S.W.3d at 861.

In re Kaliyah S., 455 S.W.3d at 555. Accordingly, DCS is not required to prove it made
reasonable efforts to assist Mother in complying with the requirements of the permanency
plans for the trial court to terminate Mother’s parental rights based upon the ground of
substantial noncompliance. We will weigh DCS’s efforts to assist Mother in the best-
interest analysis section.

      D. Persistence of Conditions

       Tennessee Code Annotated section 36-1-113(g)(3) authorizes termination of
parental rights when:

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

             (A) The conditions that led to the child’s removal or other
             conditions that in all reasonable probability would cause the child to
             be subjected to further abuse or neglect and that, therefore, prevent
             the child’s safe return to the care of the parent or parents or 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 the parent
             or parents or the guardian or guardians in the near future; and

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



                                          - 11 -
        The record reflects that the children were removed from Mother’s custody on
September 5, 2014 due to Mother exposing the children to drugs. On November 20,
2014, the juvenile court adjudicated the children dependent and neglected due to
Mother’s drug use and failure to provide a safe and stable home for them. DCS filed the
petition to terminate Mother’s parental rights on April 22, 2016, approximately nineteen
months after the children entered DCS custody. Thus, the six-month requirement was
satisfied.

        At the time DCS became involved with the family, Mother, the children, and
Jeremy resided in a one-bedroom apartment together with another couple and their
children. Mother lived in a minimum of five different residences following the children’s
removal. Despite residing in at least five different residences during the nearly two years
prior to trial, Mother only provided DCS with one lease agreement, but she moved from
that residence shortly thereafter. Mother still had not secured a safe and stable home for
the children by the time of trial. Furthermore, on two occasions, Mother resided with
Sheree B., who failed a hair follicle test shortly after the children entered DCS custody.

       In addition to Mother’s continuing inability to secure a safe and stable home for
the children, she was unsuccessful in completely removing drugs from her life. Mother
completed an alcohol and drug assessment and submitted to random drug screens;
however, she admitted to using methamphetamine four to six months prior to trial.
Mother also continued to surround herself with other drug users. Ms. Byers testified that
Mother admitted that she continued to spend time with persons who smoked marijuana.
Additionally, Mother failed to obtain sponsorship through Narcotics Anonymous or
Alcoholics Anonymous. This evidence supports the trial court’s finding that the
conditions that led to the children’s removal still persisted and that there was little
likelihood that the conditions that led to the children’s removal would be remedied at any
early date. Tenn. Code Ann. § 36-1-113(g)(3)(A) & (B).

        DCS placed the children in a pre-adoptive foster home approximately ten months
prior to trial. The children refer to the foster parents as “mom” and “dad.” Furthermore,
the children refer to the foster parents’ parents as “grandparents.” Ms. Byers testified that
she observed the foster parents and the children display affection between each other and
bond through playing. Foster Mother testified that she and her husband would like to
adopt the children if they become available for adoption. Therefore, a continuation of
Mother’s parental rights would negatively affect the “[children’s] chances of early
integration into a safe, stable and permanent home.” Tenn. Code Ann. § 36-1-
113(g)(3)(C). After a thorough examination of the record, we conclude that DCS proved
the persistence of conditions ground by clear and convincing evidence and that the trial
court did not err in terminating Mother’s parental rights based on this ground.




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                                Best Interest of the Child

        Having determined that clear and convincing evidence of two statutory grounds
exists to terminate Mother’s parental rights, we must next consider whether the trial court
properly determined that termination is in the children’s best interest. See Tenn. Code
Ann. § 36-1-113(c)(2); In re Audrey S., 182 S.W.3d at 860. After a court finds that clear
and convincing evidence exists to support a ground for termination, the child’s interests
diverge from those of the parent and the court focuses on the child’s best interests. In re
Audrey S., 182 S.W.3d at 877. A court must view the child’s best interest from the
perspective of the child, not that of the parent. Id. at 878.

       When considering whether terminating a parent’s rights to a child is in the child’s
best interest, a trial court is to consider the following non-exclusive factors:

      (1) Whether the parent or guardian has made such an adjustment of
      circumstance, conduct, or conditions as to make it safe and in the child’s
      best interest to be in the home of the parent or guardian;

      (2) Whether the parent or guardian has failed to effect a lasting adjustment
      after reasonable efforts by available social services agencies for such
      duration of time that lasting adjustment does not reasonably appear
      possible;

      (3) Whether the parent or guardian has maintained regular visitation or
      other contact with the child;

      (4) Whether a meaningful relationship has otherwise been established
      between the parent or guardian and the child;

      (5) The effect a change of caretakers and physical environment is likely to
      have on the child’s emotional, psychological and medical condition;

      (6) Whether the parent or guardian, or other person residing with the parent
      or guardian, has shown brutality, physical, sexual, emotional or
      psychological abuse, or neglect toward the child, or another child or adult
      in the family or household;

      (7) Whether the physical environment of the parent’s or guardian’s home is
      healthy and safe, whether there is criminal activity in the home, or whether
      there is such use of alcohol, controlled substances or controlled substance
      analogues as may render the parent or guardian consistently unable to care
      for the child in a safe and stable manner;


                                          - 13 -
      (8) Whether the parent’s or guardian’s mental and/or emotional status
      would be detrimental to the child or prevent the parent or guardian from
      effectively providing safe and stable care and supervision for the child; or

      (9) Whether the parent or guardian has paid child support consistent with
      the child support guidelines promulgated by the department pursuant to
      § 36-5-101.

Tenn. Code Ann. § 36-1-113(i). A trial court is not required to find that each of the
enumerated factors exists before concluding that it is in the best interest of the child to
terminate a parent’s rights. In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005).

        The trial court made the following findings of fact when determining it was in the
best interest of the children to terminate Mother’s parental rights:

      It is in the children’s best interests for termination to be granted, because
      [Mother] has not made changes in her conduct or circumstances that would
      make it safe for the children to go home.
      ....

      It is in the children’s best interests for termination to be granted as to
      [Mother], because she has not made lasting changes in her lifestyle or
      conduct after reasonable efforts by the state to help, so that lasting change
      does not appear possible.
      ....

      It is in the children’s best interests for termination to be granted against
      [Mother], because changing caregivers at this stage of their lives will have a
      detrimental effect on them.
      ....

      It is in the children’s best interests for termination to be granted, because
      [Mother] has not paid child support consistently.

       The evidence at trial makes it clear that Mother has struggled to improve her
circumstances so as to make it safe for the children to return to her custody. Mother
changed residences a minimum of five times between the children’s removal and trial.
DCS provided Mother with a list of housing resources and discussed with her the options
available based on Mother’s budget. DCS made no further efforts to assist Mother in
establishing a suitable home, however. Despite being aware of Mother’s ADHD and
Bipolar Disorder as early as the first permanency plan, DCS provided Mother with no
assistance in addressing her mental health issues. In addition to failing to establish a
suitable home for the children, Mother has failed to remove drugs from her life.

                                          - 14 -
Although she completed an alcohol and drug assessment, she admitted to using
methamphetamine four to six months prior to trial. Moreover, she continues to associate
with other individuals who use drugs.

        During the four-month period prior to DCS filing the petition to terminate
Mother’s parental rights, Mother made several child support payments. Despite working
at McDonald’s and Hardee’s, Mother made only eight child support payments following
the children’s removal from her custody. She allowed her child support arrearage amount
to accrue to such a high level that she was arrested and found to be in contempt for her
failure to pay. At the time of trial, she owed more than $3,000 in child support arrears.

        The record indicates the children have done well in their pre-adoptive foster home.
Foster Mother testified that the children have bonded well with her and her husband. In
fact, the children refer to her and her husband as “mom” and “dad.” Foster Mother stated
that she and her husband wish to adopt the children if they become available for adoption.

       Mother argues that termination of her parental rights is not in the best interest of
the children because it would sever the children’s ties to their maternal grandparents and
older sister. We do not discount the importance of the relationship between the children
and their maternal grandparents and older sister. The children, however, have been in
DCS custody for more than two years while Mother failed to improve her circumstances.
The children should be allowed to continue to thrive in their pre-adoptive placement with
foster parents with whom the children have bonded and who would like to adopt the
children. After thorough examination of the record, we conclude that there is clear and
convincing evidence to establish that termination of Mother’s parental rights was in the
best interest of the children.

                                      IV. CONCLUSION

       We affirm the trial court’s decision terminating Mother’s parental rights based on
the grounds of substantial noncompliance and persistence of conditions. We reverse the
trial court’s decision terminating Mother’s parental rights based on the grounds of
abandonment by failure to provide a suitable home and abandonment by willful failure to
support. We affirm the trial court’s conclusion that it is in the best interest of the children
to terminate Mother’s parental rights, and thus, affirm the trial court’s ultimate decision
to terminate Mother’s parental rights to the children. Costs of this appeal are assessed
against the appellant, Tabitha P., for which execution may issue if necessary.


                                                     ________________________________
                                                     ANDY D. BENNETT, JUDGE



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