                                                                                       08/09/2018



                  IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                              January 10, 2018 Session

                                IN RE MCKENZI W.

               Appeal from the Juvenile Court for Rutherford County
                 No. TC-2867       Donna Scott Davenport, Judge
                     ___________________________________

                          No. M2017-01204-COA-R3-PT
                      ___________________________________


A mother appeals the termination of her parental rights. The juvenile court found four
statutory grounds for termination of parental rights: abandonment by failure to visit,
abandonment by failure to provide a suitable home, substantial noncompliance with the
permanency plan, and persistence of conditions. The juvenile court also found that
termination of the mother’s parental rights was in the child’s best interest. We conclude
that the record contains clear and convincing evidence to support the grounds for
termination and that termination is in the child’s best interest. Thus, we affirm the
termination of the mother’s parental rights.

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

W. NEAL MCBRAYER, J., delivered the opinion of the court, in which ANDY D. BENNETT
and RICHARD H. DINKINS, JJ., joined.

Cheryl L. Grizzard, La Vergne, Tennessee, for the appellant, Arlene S.

Herbert H. Slatery III, Attorney General and Reporter, and W. Derek Green, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.


                                       OPINION

                                           I.

       On August 20, 2014, the Tennessee Department of Children’s Services (“DCS”)
received a report that McKenzi W., then age seven, had been sexually abused by an
unknown perpetrator. This was one of several referrals received by DCS. The child’s
mother, Arlene S. (“Mother”), maintained that her child had been abused at both her
former and current school. Twice the Mother had taken the child to a local emergency
room and a dedicated treatment center for child sexual abuse. She had also contacted the
police three times.

       On September 19, 2014, in the Juvenile Court for Rutherford County, Tennessee,
DCS petitioned to declare the child dependent and neglected, for emergency temporary
legal custody, and for a finding of severe abuse. The petition revealed that, when
interviewed by a police detective a few days prior, the child disclosed that her mother
looked at the child’s genital area daily and accused the child of having sex. The child
further disclosed that Mother would beat her with a belt until the child admitted someone
had sexually assaulted her. The child told the detective that she had not been molested
but that she felt she had to lie to please Mother.

       Based on the petition, the juvenile court entered an ex parte protective custody
order removing the child from Mother’s custody. Following a preliminary hearing
attended by Mother and her counsel, the court entered an order finding probable cause to
believe that the child was dependent and neglected and in need of the immediate care and
protection of the court. Specifically as to Mother, the order provided as follows:

               The last five months have been tumultuous, as evidenced by
       numerous allegations. The latest disclosure was that the Child falsified an
       incident of harm to please her Mother. The Mother is not satisfied with the
       explanations of multiple professionals and even left the services of [the
       child’s therapist] after the Child had been seen only one time. According to
       the Mother, other persons must have convinced the child to recant her
       allegations. The Mother does not appear to have the ability to be objective
       yet in regard to the needs of the Child; the Court finds that if the Child were
       to be returned to the Mother’s home, the pattern of recent events would
       likely continue.

In light of the finding, Mother was denied visitation.

       The court concluded that it was in the best interests of both the child and Mother
to “have psychological evaluations and counseling to get to the bottom of the existing
conflict.” The court specified that “[a]t a minimum . . . the evaluation (1) needs to be
non-self-reporting and (2) should be conducted by a licensed clinical psychologist.” The
order directed that “no visitation of any kind shall occur until the psychological
evaluations of both the Child and the Mother have been completed and brought before the
Court.”


                                             2
        DCS, with Mother’s participation, developed a family permanency plan, which
was dated October 1, 2014. The goal of the permanency plan, with a target date of April
1, 2015, was the return of McKenzi to Mother. The plan also included a secondary goal,
to which Mother did not consent, of adoption. To reach the primary goal, the
permanency plan required, among other things, that Mother “actively participate in and
complete a psychological assessment with parenting and anger management components
and follow all recommendations” and “actively participate in and complete a
psychosexual assessment and follow all recommendations.” The plan recognized that
conditions had been placed on visitation, but the plan anticipated that Mother would
satisfy the conditions. It required Mother, once she was permitted visitation, to maintain
regular visitation. The plan also required Mother to maintain contact with DCS,
attorneys, CASA, and private providers and ensure that her address was correct with
DCS, her attorney, and the court.

       By all accounts, Mother complied with many of the plan requirements in a prompt
manner. But Mother failed in obtaining a non-self-reporting psychological evaluation
and counseling. Because of a lack of trust, Mother declined DCS’s assistance in
arranging for an evaluation. On her own initiative, Mother obtained a psychological
evaluation in early 2015 that was rejected by DCS as being non-compliant with the
court’s directive. In March 2015, Mother obtained an evaluation from another provider
and forced the issue of the evaluation’s sufficiency by filing a motion for return of
custody or visitation. Following a hearing, the court found the second evaluation to be
self-reporting and not in compliance with its prior order.

        Over two days in May and June 2015, the juvenile court conducted an
adjudicatory hearing on DCS’s petition for dependency and neglect. After hearing the
testimony of the police detective who interviewed McKenzi, the counselor who treated
McKenzi after her removal, and Mother, the court found that Mother had “harassed and
coerced the Child into making disclosures that she was being sexually abused by children
at her school.” The court assessed Mother’s testimony as lacking credibility, referring to
it as “very sketchy.” The court further determined that there was no proof of any type of
sexual abuse of McKenzi at school.

       The court found clear and convincing evidence that McKenzi was a dependent and
neglected child in that she was suffering from being subjected to unnecessary
examinations and interviews as a result of Mother’s unfounded claims of sexual abuse.
See Tenn. Code Ann. § 37-1-102(b)(13)(F) (Supp. 2017). The court also found clear and
convincing evidence the child was suffering from emotional abuse. See id. § 37-1-
102(b)(13)(G). But the evidence did not rise to the level of “severe child abuse” as
defined by statute. See id. § 37-1-102(b)(22).

     Undaunted by that outcome, Mother renewed her motion for visitation. Nearly
two weeks prior to the adjudicatory hearing, Mother had returned to the same licensed
                                          3
psychologist who performed her last, self-reporting evaluation. On the strength of this
evaluation and the fact that the adjudicatory hearing had concluded, Mother asserted that
it was “in the best interests of the child to be reunited with her primary attachment and
caregiver.” Although noting that the child was found to be dependent and neglected
based upon emotional abuse, the motion submitted, at least, “[s]evere psychological
abuse was not found.” The court denied the renewed motion.

       The dispositional hearing on the petition for dependency and neglect took place
over several days, finally concluding on November 16, 2015. In its subsequent order, the
juvenile court addressed Mother’s continuing claim that her child was sexually abused at
school and that she did not coerce a report of abuse from her child. The court
acknowledged that “Mother stands by her clear perception that she did nothing wrong
and from her perspective she is not going to lie and tell McKenzi she did something that
she is adamant she [did not do].” But then the court cautioned that “Mother must start
with the perception of what the Court has found [in the adjudicatory order] and go
forward.” In the court’s view,

      [t]he main barrier/difference we have between the Mother and McKenzi is
      perception. Their relationship is so torn due to [a] difference in perception.
      It is always a very difficult issue for the Court to reach a dispositional
      ruling when you have one person standing at point A at one end of the line
      and the other person standing at the other end of the line at point Z, trying
      to reunify; at this point th[e] relationship is torn [such] that McKenzi cannot
      be released to the care of the Mother even if the other issues herein were
      addressed.

       The court ordered custody to remain with DCS. The court further ordered that,
prior to visitation, Mother must have intense, therapeutic counseling. After such
counseling, Mother’s counselor and McKenzi’s counselor could then confer on when
family counseling might be appropriate as a prelude to visitation.

       Just after Christmas of that year, Mother moved to North Carolina for a job
promotion. In later testimony, DCS claimed that the move made communicating with
Mother difficult. A family services worker testified that she attempted to call Mother
twelve times between January and November 2016, but Mother never answered the
phone. Although she left messages, the family services worker claimed that Mother
never responded. Mother denied not returning messages, but she did explain that she had
poor cell service at work because she worked in a basement.

      Mother did provide DCS with a mailing address, which was a rented mailbox.
And she continued to participate in child and family team meetings and appear for court
proceedings. But no apparent progress was made on obtaining either a psychological

                                            4
evaluation or counseling. Mother stated that she could not “get an appointment to fit
within [her] work schedule or after work.”

        On June 22, 2016, DCS filed its petition to terminate Mother’s parental rights with
the juvenile court.1 The next month, at a child and family team meeting, saw the first
sign of progress on the therapy requirement since the dispositional hearing. Mother
claimed that she had seen a therapist at Duke University, but she could not remember his
name. She indicated that she would provide information on the therapist later, but she
failed to do so.

       On January 12, 2017, at another child and family team meeting, Mother stated that
she was seeing a therapist and that she had authorized the release of information to DCS.
But, when the caseworker called to confirm, the therapist’s office said there was no
release allowing him to speak with DCS. According to the caseworker, Mother finally
signed the releases for the therapist on February 15, 2017. By the trial of the petition to
terminate parental rights, however, the caseworker still had no information from the
therapist.

       Following the trial, the juvenile court terminated Mother’s parental rights based
upon (1) abandonment by failure to visit; (2) abandonment by failure to provide a suitable
home; (3) substantial noncompliance with the permanency plans; and (4) persistence of
conditions. The juvenile court also determined that it was in the child’s best interest to
terminate Mother’s parental rights. This appeal by Mother followed.

                                                 II.

        A parent has a fundamental right, based in both the federal and State constitutions,
to the care and custody of his or her own child. Stanley v. Illinois, 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud,
921 S.W.2d 170, 174 (Tenn. 1996); In re Adoption of Female Child, 896 S.W.2d 546,
547-48 (Tenn. 1995). But parental rights are not absolute. In re Angela E., 303 S.W.3d
at 250. Our Legislature has identified those situations in which the State’s interest in the
welfare of a child justifies interference with a parent’s constitutional rights by setting
forth the grounds upon which termination proceedings may be brought. See Tenn. Code
Ann. § 36-1-113(g) (2017).

        Tennessee Code Annotated § 36-1-113 sets forth both the grounds and procedures
for terminating parental rights. In re Kaliyah S., 455 S.W.3d 533, 546 (Tenn. 2015).
First, parties seeking termination of parental rights must prove the existence of at least
one of the statutory grounds for termination listed in Tennessee Code Annotated § 36-1-

       1
           The petition also sought to terminate the parental rights of McKenzi’s father. The father’s
parental rights are not a subject of this appeal.
                                                  5
113(g). Tenn. Code Ann. § 36-1-113(c)(1). If one or more statutory grounds for
termination are shown, they then must prove that terminating parental rights is in the
child’s best interest. Id. § 36-1-113(c)(2).

        Because of the constitutional dimension of the rights at stake in a termination
proceeding, parties seeking to terminate parental rights must prove both the grounds and
the child’s best interest by clear and convincing evidence. In re Bernard T., 319 S.W.3d
586, 596 (Tenn. 2010) (citing Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H.,
215 S.W.3d 793, 808-09 (Tenn. 2007); In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002)). This heightened burden of proof serves “to minimize the possibility of erroneous
decisions that result in an unwarranted termination of or interference with these rights.”
Id. “Clear and convincing evidence” leaves “no serious or substantial doubt about the
correctness of the conclusions drawn from the evidence.” Hodges v. S.C. Toof & Co.,
833 S.W.2d 896, 901 n.3 (Tenn. 1992). It produces a firm belief or conviction in the
fact-finder’s mind regarding the truth of the facts sought to be established. In re Bernard
T., 319 S.W.3d at 596.

       On appeal, we review the trial court’s findings of fact “de novo on the record, with
a presumption of correctness of the findings, unless the preponderance of the evidence is
otherwise.” In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013); Tenn. R. App. P.
13(d). We then “make [our] own determination regarding whether the facts, either as
found by the trial court or as supported by a preponderance of the evidence, provide clear
and convincing evidence that supports all the elements of the termination claim.” In re
Bernard T., 319 S.W.3d at 596-97. We review the trial court’s conclusions of law de
novo with no presumption of correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct.
App. 2007).

                   A. GROUNDS FOR TERMINATING PARENTAL RIGHTS

       On appeal, Mother challenges each of the grounds found for termination of her
parental rights. Specifically, Mother argues that DCS failed to prove each of the grounds
by clear and convincing evidence.

1. Abandonment

        One of the statutory grounds for termination of parental rights is “[a]bandonment
by the parent.” Tenn. Code Ann. § 36-1-113(g)(1). The General Assembly has provided
“five alternative definitions for abandonment as a ground for the termination of parental
rights.” In re Audrey S., 182 S.W.3d 838, 863 (Tenn. Ct. App. 2005); see also Tenn.
Code Ann. § 36-1-102(1)(A) (defining the term “abandonment”). The juvenile court
concluded that Mother abandoned the child under both the first and the second
definitions: abandonment by willful failure to visit her child and abandonment by failure
to provide a suitable home. See Tenn. Code Ann. § 36-1-102(1)(A)(i), (ii).
                                             6
       a. Abandonment by Failure to Visit

       Under the first definition of abandonment, a parent’s parental rights may be
terminated if the parent “willful[ly] fail[ed] to visit, to support, or to make reasonable
payments toward the support of the child during the four-month period preceding the
filing of the petition to terminate parental rights.” In re Adoption of Angela E., 402
S.W.3d 636, 640 (Tenn. 2013); see also Tenn. Code Ann. § 36-1-102(1)(A)(i). Because
the petition was filed on June 22, 2016, the relevant four-month period is February 22,
2016, to June 21, 2016, the day before the petition was filed. 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 day before the petition is filed is the last day in the relevant four-
month period).

        In order to terminate parental rights on the ground of abandonment for failure to
visit, the court must conclude that the abandonment was willful. While the question of
whether a parent failed to visit presents a question of fact, whether that failure is willful
presents a question of law. In re Adoption of Angela E., 402 S.W.3d at 640 (citing In re
Adoption of A.M.H., 215 S.W.3d at 810). “Failure to visit . . . a child is ‘willful’ when a
person is aware of his or her duty to visit . . ., 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 at
864.

      If failure to visit is due to circumstances outside of a parent’s control, then he or
she cannot be said to have willfully abandoned the child. In re Adoption of Angela E.,
402 S.W.3d at 640. On the other hand, a parent cannot cure previous abandonment by
attempting to visit the child after “any petition” for termination has been filed. Tenn.
Code Ann. § 36-1-102(1)(F); In re Adoption of Angela E., 402 S.W.3d at 640. This is
because the relevant time frame for consideration of the grounds of abandonment is the
four-month period preceding the filing of the petition. Tenn. Code Ann. § 36-1-
102(1)(A)(i).

       Mother admitted in her testimony that she had not seen her child since September
2014. But Mother argues that her failure to visit was not willful because she filed
motions for visitation that were denied by the juvenile court and that the juvenile court
placed “a barrier” that prevented her from visiting McKenzi. As noted above, the
juvenile court ordered that “no visitation of any kind shall occur until the psychological
evaluations of both the Child and the Mother have been completed and brought before the
Court.”

       An order suspending a parent’s visitation rights does not “preclude a finding that
[the parent] willfully failed to visit.” In re Adoption of Angela E., 402 S.W.3d at 642.
When the order allows the parent to resume visitation provided certain conditions are
                                              7
met, our courts have consistently held that a parent who makes no attempt to meet the
conditions to regain visitation has willfully abandoned the child. See, e.g., In re Riley C.,
No. M2015-00541-COA-R3-PT, 2016 WL 626058, at *7 (Tenn. Ct. App. Feb. 12, 2016)
(holding that father’s conduct was willful when he failed to take any affirmative steps to
regain visitation during the relevant period); In re Jaylah W., 486 S.W.3d 537, 552-53
(Tenn. Ct. App. 2015), perm. app. denied, (Tenn. Feb. 1, 2016) (holding mother’s failure
to address her mental health issues as required by court order before visitation could be
resumed constituted a willful failure to visit); In re Donald C., No. M2014-01327-COA-
R3-PT, 2014 WL 7465684, at *6 (Tenn. Ct. App. Dec. 30, 2014) (holding mother’s
choice to not complete the required tasks to resume visitation constituted willful
abandonment); State v. Dep’t of Children’s Servs. v. J.A.H., No. E2005-00860-COA-R3-
PT, 2005 WL 3543419, at *6 (Tenn. Ct. App. Dec. 28, 2005) (“Father’s choice in
refusing to [submit to drug and alcohol testing as a precondition to visitation] constituted
a willful decision to discontinue visiting his son.”).

        The court provided Mother a clearly defined pathway to obtain visitation with
McKenzi. She was required to obtain a psychological evaluation from “a licensed
clinical psychologist” that was “non-self-reporting.” Although she was able to identify
several licensed clinical psychologists on her own, Mother simply refused to trust a
system that did not allow her to self-report. And, again due to mistrust, she would not
accept DCS’s assistance in setting up a complying evaluation. We conclude that her
failure to visit was willful based on this behavior. Her attempt at arranging for a
psychological evaluation in North Carolina came far too late. See, e.g., In re Jaylah W.,
486 S.W.3d at 552 (“Mother’s [attempt to comply with the trial court’s order to regain
visitation] c[a]me[] too late.”).

       b. Failure to Provide a Suitable Home

       A child has been abandoned under the second statutory definition if the child has
been removed from the home of a parent as a result of a petition filed in juvenile court,
which ultimately results in a finding that the child was dependent and neglected, and

       for a period of four (4) months following the removal, the department . . .
       has made reasonable efforts to assist the parent . . . to establish a suitable
       home for the child, but . . . the parent . . . ha[s] made no reasonable efforts
       to provide a suitable home and ha[s] demonstrated a lack of concern for the
       child to such a degree that it appears unlikely that [the parent] will be able
       to provide a suitable home for the child at an early date.

Tenn. Code Ann. § 36-1-102(1)(A)(ii). DCS’s efforts to assist the parent “may be found
to be reasonable if such efforts exceed the efforts of the parent . . . toward the same goal.”
Id. In evaluating those efforts, we are concerned with the time period from September
17, 2014, the day following McKenzi’s emergency removal, to January 16, 2015.
                                              8
       Mother does not challenge DCS’s efforts to assist during the four-month period
following McKenzi’s removal. Instead, Mother focuses her argument on DCS’s efforts
following her move to North Carolina. But this period of time is irrelevant to our
consideration of this ground for termination. The juvenile court found that there was
clear and convincing evidence that DCS’s efforts to assist were reasonable, and based on
our review, we agree. So we next must consider Mother’s efforts to establish a suitable
home.

       “A suitable home ‘requires more than a proper physical living location.’” In re
Navada N., 498 S.W.3d 579, 595 (Tenn. Ct. App. 2016) (quoting In re Hannah H., No.
E2013-01211-COA-R3-PT, 2014 WL 2587397, at *9 (Tenn. Ct. App. June 10, 2014)). A
suitable home requires “[a]ppropriate care and attention . . . to the child.” In re Matthew
T., No. M2015-00486-COA-R3-PT, 2016 WL 1621076, at * 7 (Tenn. Ct. App. Apr. 20,
2016). As such, “a parent’s compliance with counseling requirements is ‘directly related
to the establishment and maintenance of a suitable home.’” Id. (quoting In re M.F.O.,
No. M2008-01322-COA-R3-PT, 2009 WL 1456319, at *5 (Tenn. Ct. App. May 21,
2009)).

        We conclude that clear and convincing evidence supported abandonment by
failure to provide a suitable home as ground for termination of Mother’s parental rights.
Mother’s multiple, unfounded accusations of sexual abuse resulted in McKenzi’s
removal. Evidence showed that McKenzi’s reports of abuse came only after Mother beat
the child with a belt. And Mother’s reports of abuse subjected McKenzi to interviews
and examinations related to the investigation of Mother’s claims. The juvenile court
found no evidence, beyond Mother’s assertions, that McKenzi had been abused at school.
But the court did find a risk that Mother’s behavior would continue if McKenzi was
returned to Mother’s home.

       To address the risk, at the preliminary hearing on the petition for dependency and
neglect in September 2014, the court directed Mother to obtain a psychological
evaluation and to seek counseling. Mother’s first, non-complying, psychological
evaluation did not occur until the following year, outside the four-month period following
removal.

2. Substantial Noncompliance with Parenting Plan

        The juvenile court also found substantial noncompliance by Mother with the
statement of responsibilities in the permanency plan. See Tenn. Code Ann. § 36-1-
113(g)(2). Before analyzing whether a parent complied with the permanency plan, the
trial court must find that the allegedly unsatisfied permanency plan requirements are
“reasonable and are related to remedying the conditions that necessitate foster care
placement.” Tenn. Code Ann. § 37-2-403(a)(2)(C) (2014); see also In re Valentine, 79
                                           9
S.W.3d 539, 547 (Tenn. 2002). Only if the permanency plan requirements are reasonable
does the court determine if the parent’s noncompliance was substantial. In re Valentine,
79 S.W.3d 539 at 547.

       The juvenile court found that the requirements of the permanency plans were
reasonable and related to remedying the conditions that necessitated foster care. Mother
does not dispute this factual finding, and we conclude that the evidence was clear and
convincing that the requirements were reasonable and related to remedying the conditions
that necessitated foster care.

       Instead, Mother’s argument centers on noncompliance. She argues that she “fully
complied with nearly all of the requirements in her Permanency Plan.” She claims to
have “supplied all the requested documentations, and completed an 8 week Parenting
Plan.” And Mother states that, although they were later determined to be insufficient, she
completed multiple psychological evaluations.

       We must determine if Mother’s noncompliance was substantial in light of the
importance of the unsatisfied requirement to the overall plan. Id. at 548-49. A “[t]rivial,
minor, or technical” deviation from the permanency plan’s requirements does not qualify
as substantial noncompliance. In re M.J.B., 140 S.W.3d 643, 656 (Tenn. Ct. App. 2004).
Although our focus is not on whether the parents achieved the plan’s “desired outcomes,”
In re B.D., No. M2008-01174-COA-R3-PT, 2009 WL 528922, at *8 (Tenn. Ct. App.
Mar. 2, 2009), still the “parents must complete their responsibilities in a manner that
demonstrates that they are willing and able to resume caring for their children in the long-
term, not on a month-to-month basis,” In re V.L.J., No. E2013-02815-COA-R3-PT, 2014
WL 7418250, at *8 (Tenn. Ct. App. Dec. 30, 2014).

       In its final order, the court found, in relevant part:

               I find again that the Department made their reasonable efforts, and
       that the mother is in substantial non-compliance because her main barrier is
       her counseling. Even if she had presented herself this week, these many
       days with a lease, a contract, pay checks, we do not have the counseling,
       which stopped her visits at the very beginning, two years ago. A year and a
       half to two years ago for the dispositional hearing.

             . . . It was the only thing she always needed to do was to get her
       counseling.

       Although Mother did meet the majority of the permanency plan requirements, she
failed to meet the most important one. The psychological evaluation was the key to
opening the door to visitation. Because of this one failure, Mother never received
appropriate counseling, and she has been separated from her child for nearly four years
                                          10
now. We conclude that clear and convincing evidence supported the finding that Mother
was substantially noncompliant with the permanency plan.

3. Persistence of Conditions

       Finally, the juvenile court found termination of Mother’s parental rights
appropriate under Tennessee Code Annotated § 36-1-113(g)(3), a ground commonly
referred to as “persistence of conditions.” See In re Audrey S., 182 S.W.3d at 871. The
persistence of conditions ground focuses “on the results of the parent’s efforts at
improvement rather than the mere fact that he or she had made them.” Id. at 874. The
goal is to avoid having a child in foster care for a time longer than reasonable for the
parent to demonstrate the ability to provide a safe and caring environment for the child.
In re Arteria H., 326 S.W.3d 167, 178 (Tenn. Ct. App. 2010), overruled on other
grounds, In re Kaliyah S., 455 S.W.3d 533 (Tenn. 2015). So the question before the
court is “the likelihood that the child can be safely returned to the custody of the [parent],
not whether the child can safely remain in foster care.” In re K.A.H., No. M1999-02079-
COA-R3-CV, 2000 WL 1006959, at *5 (Tenn. Ct. App. July 21, 2000).

       This ground authorizes termination of parental rights when:

       The child has been removed from the home of the parent . . . 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 . . ., 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 . . . in the
       near future; and
       (C) The continuation of the parent . . . and child relationship greatly
       diminishes the child’s chances of early integration into a safe, stable and
       permanent home[.]

Tenn. Code Ann. § 36-1-113(g)(3). Each of the statutory elements must be established
by clear and convincing evidence. In re Valentine, 79 S.W.3d at 550.

       On appeal, Mother argues that DCS never “check[ed] to see whether Mother’s
home in North Carolina would be suitable.” But the suitability of Mother’s home is not
the focus of this issue. Removal occurred due to Mother’s abuse of McKenzi, triggered
by an unfounded belief that McKenzi had been sexually abused.


                                             11
       As her testimony makes clear, Mother persists in her belief that her child was
sexually abused at school. Mother testified as follows:

       [MOTHER]: It’s the truth. I moved my daughter from one school to the
       other because she was raped, and I had documentation of that, but I didn’t
       want to tell anybody. And the prescription was there that she has a sexually
       transmitted disease, and I would -- and I kept calling -- I kept calling – I’m
       sorry, Your Honor. I kept calling –

       THE COURT: Just take a minute.

       [MOTHER]: I kept calling [DCS Child Protective Services Worker] and
       telling her my daughter had been touched inappropriately, but -- because
       she had a sexually transmitted disease. And I gave the documentation to
       [Mother’s first attorney] of the prescription . . . I told him I took my
       daughter to [McKenzi’s counselor] because I keep saying, If my daughter is
       lying about being touched at school, she needs help. If she is not lying, and
       -- she still needed help. And I took all of that to my attorney. And after
       that, I felt drained because . . . I took it upon myself to say, My daughter
       had this incident. Please help her. I did not wait for DCS or anybody else
       to take her to get help, and nobody did. And I kept telling them, . . . . This
       prescription shows she had a sexually transmitted disease at seven, and I
       moved my daughter, and they twisted the whole story as if I was
       haphazardly moving my daughter from school to school. Nobody helped
       McKenzi. Nobody helped my daughter. Nobody helped her.

              ....

       [MOTHER]: They took her away from me.

Despite Mother’s claims to the contrary, the authorities investigated her allegations but
found no corroborating evidence. The juvenile court also found no evidence that
McKenzi had been abused at school.

       And Mother still has not acknowledged her own abuse of McKenzi. The juvenile
court found that Mother had “harassed and coerced the Child into making disclosures that
she was being sexually abused by children at her school.” Mother seemingly prefers to
believe that her seven-year-old child was abused or lying.

         We conclude that there was clear and convincing evidence to support persistence
of conditions as a ground for termination. The conditions that prevented McKenzi’s safe
return to the care of Mother still persist. There was no evidence that these conditions will
be remedied by Mother. And continuation of the parent and child relationship will
                                              12
greatly diminish McKenzi’s chances of early integration into a safe, stable and permanent
home. McKenzi lives with a foster mother who loves and wants to adopt her.

                                    B. BEST INTEREST OF THE CHILD

       Although Mother did not challenge the juvenile court’s best interest finding on
appeal, our review must extend “to whether termination is in the child’s best interests,
regardless of whether the parent challenges these findings on appeal.” In re Carrington
H., 483 S.W.3d 507, 525-26 (Tenn. 2016). Because “[n]ot all parental misconduct is
irredeemable,” our parental termination “statutes recognize the possibility that
terminating an unfit parent’s parental rights is not always in the child’s best interests.” In
re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005). Tennessee Code Annotated § 36-
1-113(i)2 lists nine factors that courts may consider in making a best interest analysis.

       2
           The statutory factors include, but are not limited to, the following:

                           (1) Whether the parent . . . 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 . . . 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 . . . has maintained regular visitation or
                  other contact with the child;
                           (4) Whether a meaningful relationship has otherwise been
                  established between the parent . . . 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 other person residing with the
                  parent . . ., 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 . . . 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 . . . consistently unable to
                  care for the child in a safe and stable manner;
                           (8) Whether the parent’s . . . mental and/or emotional status
                  would be detrimental to the child or prevent the parent . . . from
                  effectively providing safe and stable care and supervision for the child;
                  or
                           (9) Whether the parent . . . 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).
                                                      13
The focus of this analysis is on what is best for the child, not what is best for the parent.
Id. at 499. Additionally, the analysis should take into account “the impact on the child of
a decision that has the legal effect of reducing the parent to the role of a complete
stranger.” In re C.B.W., No. M2005-01817-COA-R3-PT, 2006 WL 1749534, at *6
(Tenn. Ct. App. June 26, 2006). Although “[f]acts relevant to a child’s best interests need
only be established by a preponderance of the evidence, . . . the combined weight of the
proven facts [must] amount[] to clear and convincing evidence that termination is in the
child’s best interests.” In re Carrington H., 483 S.W.3d at 535.

       As our supreme court recently explained,

              Ascertaining a child’s best interests involves more than a “rote
       examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878.
       And the best interests analysis consists of more than tallying the number of
       statutory factors weighing in favor of or against termination. White v.
       Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts
       and circumstances of each unique case dictate how weighty and relevant
       each statutory factor is in the context of the case. See In re Audrey S., 182
       S.W.3d at 878. Simply put, the best interests analysis is and must remain a
       factually intensive undertaking, so as to ensure that every parent receives
       individualized consideration before fundamental parental rights are
       terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending 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.” In re Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171
       S.W.3d at 194). But this does not mean that a court is relieved of the
       obligation of considering all the factors and all the proof. Even if the
       circumstances of a particular case ultimately result in the court ascribing
       more weight—even outcome determinative weight—to a particular
       statutory factor, the court must consider all of the statutory factors, as well
       as any other relevant proof any party offers.

In re Gabriella D., 531 S.W.3d 662, 682 (Tenn. 2017).

       The juvenile court began its best interest analysis with the observation that the
main barrier for Mother throughout the proceedings was the counseling requirement. The
juvenile court found that Mother had not made an adjustment of her circumstances
because her mental health needed to improve to make it safe for McKenzi to return to her
care. See Tenn. Code Ann. § 36-1-113(i)(1), (2), (8). The court stated,




                                             14
      [W]e have gone over two years not seeing McKenzi and no contact when
      she was able to do that and immediately get the counseling. She waited a
      year. Therefore, I find that mother has failed to effect a lasting adjustment
      after Herculean efforts by the Department. And I also find that for such a
      duration of time, that a lasting adjustment does not seem possible.

See Tenn. Code Ann. § 36-1-113(i)(2), (8).

       The evidence does not preponderate against these findings, which weigh in favor
of termination. In the thirty months between McKenzi’s removal and the trial of the
parental termination case, Mother did not obtain a satisfactory psychological evaluation.
The DCS caseworkers testified that they tried to work with Mother in obtaining a
satisfactory assessment and in getting a release from Mother’s most recent doctor. But as
was clear from her testimony, Mother did not see the urgency.

        This lack of an evaluation and counseling prevented Mother from visitation. See
id. § 36-1-113(i)(3). And because she did not have visitation for such an extended period
of time, Mother no longer had a meaningful relationship with the child. See id. § 36-1-
113(i)(4). The juvenile court found that the child clearly cared about Mother but had no
desire to go back to her. The evidence does not preponderate against these findings.

       The juvenile court also found that the effect of a change in caretakers would have
a negative effect on McKenzi’s emotional and psychological condition. See id. § 36-1-
113(i)(5). The evidence does not preponderate against this finding. At the time of the
hearing, McKenzi had been with her pre-adoptive foster mother for a little over a year.
Testimony established that McKenzi was adjusting well and her behavior has improved,
although she was experiencing anxiety associated with the termination proceeding. The
foster mother wished to adopt McKenzi, and based on the testimony, McKenzi wanted to
live with foster mother. Several witnesses testified to the loving bond between foster
mother and McKenzi.

       Mother lost custody of McKenzi due to Mother’s treatment of her. While the
juvenile court stopped short of finding severe abuse, the court did state that McKenzi was
emotionally abused. Evidence of emotional abuse by a parent is a factor that weighs in
favor of terminating that parent’s parental rights. See id. § 36-1-113(i)(6).

       From the totality of the circumstances, we conclude that clear and convincing
evidence supports the juvenile court’s conclusion that termination of Mother’s parental
rights was in the child’s best interest.

                                             III.

      The record contains clear and convincing evidence to support terminating
                                     15
Mother’s parental rights on all four grounds relied upon by the juvenile court:
abandonment by failure to visit, abandonment by failure to provide a suitable home,
noncompliance with the permanency plan requirements, and persistence of conditions.
The record also contains clear and convincing evidence that termination is in the child’s
best interest. Thus, we affirm the judgment terminating the parental rights of Mother.


                                                _________________________________
                                                W. NEAL MCBRAYER, JUDGE




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