                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                   June 10, 2013 Session

                                      IN RE J.R.P.

                Appeal from the Juvenile Court of Rutherford County
                   No. TC1696T Donna Scott-Davenport, Judge


                No. M2012-02403-COA-R3-JV - Filed August 19, 2013


This is a parental termination case. The appellant mother bore the child at issue when she
was only 13 years old. After the mother turned 18, she was turned out of her mother’s home
and moved often. At that point, the Tennessee Department of Children’s Services intervened
and the child was eventually placed in foster care. Months later, DCS filed the instant
petition to terminate the mother’s parental rights. In the ensuing bench trial, the proof
showed that, during an interim between nonconsecutive trial days, the child was removed
from his long-term foster placement and placed with a new foster family. The trial court
found several grounds for termination and that termination of the mother’s parental rights
was in the child’s best interest. The mother now appeals only the best interest determination.
We reverse, on the basis that the record does not contain clear and convincing evidence that
termination of the mother’s parental rights is in the child’s best interest.

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

H OLLY M. K IRBY, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.
W.S., and D AVID R. F ARMER, J., joined.

Mark J. Downton, Nashville, Tennessee, for Respondent/Appellant S.T.P.

Robert E. Cooper, Jr. and Alexander S. Rieger, Nashville, Tennessee, for Petitioner/Appellee
State of Tennessee Department of Children’s Services
                                               OPINION

                                F ACTS AND P ROCEEDINGS B ELOW

In December 2004, Respondent/Appellant S.T.P. (“Mother”), then thirteen years old, gave
birth to the child at issue in this appeal, J.R.P. (“Son”).1 Son was born with birth defects; he
remains a special-needs child. The child has undergone surgery related to his birth defect
and, at the time of trial, wore leg braces. He is expected in the future to undergo additional
surgery.

In 2007, Mother had another child, a daughter (“Daughter”), who is not at issue in this
appeal. While Mother was still a minor, Mother’s mother, the child’s maternal grandmother,
allowed Mother and the two children to live with her. During this time, Mother completed
the child care and parenting classes offered by her high school, and she graduated from high
school in 2010. For reasons that do not appear in the record, when Mother turned eighteen
and graduated from high school, Mother’s mother turned out both Mother and the children
and refused to permit them to live with her any longer.

When Mother was forced to leave her mother’s home, she sent Daughter to live with
Daughter’s paternal grandparents. Mother and Son moved in with a family friend.

In August 2010, the Tennessee Department of Children’s Services (“DCS”) received a
referral against Mother, alleging environmental neglect of Son. DCS investigated the
complaint and interviewed Mother about concerns that her housing situation was unstable.
At that time, the family friend with whom Mother and Son were living told DCS that she was
committed to supporting Mother and Son indefinitely.

That situation soon changed. By the end of August, Mother’s housing situation became
unstable and DCS received additional calls about Son. The record indicates that the family
friend who had housed Mother and Son no longer wished to have them living with her.
Daughter’s paternal grandparents remained committed to caring for Daughter, but felt that
their home could not accommodate the addition of Mother and Son. This left Mother unable
to provide shelter for Son and unable to care for the child’s special needs. As a result, in
September 2010, DCS filed a petition in the Juvenile Court of Rutherford County, Tennessee
to declare Son dependent and neglected. In October 2010, the Juvenile Court entered an
order declaring Son to be dependent and neglected.



1
 The child was conceived as a result of the rape of Mother. The record does not indicate the identity of the
biological father or his whereabouts.

                                                    -2-
DCS agreed to place Son with a different family friend. It staffed a permanency plan that
required Mother to obtain and maintain stable housing and to cooperate with Son’s medical
providers and other service providers. Subsequent permanency plans also required Mother
to demonstrate that she had sufficient income to care for Son, attend regular mental health
counseling, and take her prescribed medication.

Son’s placement remained the same for a couple of months, until tension developed between
Mother and the family friend who had physical custody of Son. Mother came to believe that
the friend was not properly caring for Son’s medical needs, and the tension devolved into
outright hostility between the two. In mid-December 2010, with Mother’s agreement, the
Juvenile Court entered an order allowing DCS to take the child into protective custody. At
that point, Mother had not yet resolved any of the issues that initially led DCS to remove the
child from her custody, and in particular had not yet obtained stable housing. Therefore, in
late December 2010, Son was placed in a foster home. At that time, the Juvenile Court also
appointed a guardian ad litem and ordered Mother to pay $25 in child support per month.2

The Juvenile Court entered an order in April 2011, providing that Mother could have four
hours per month of visitation with Son; it stated that the visitation was to be supervised.3
Mother was apparently allowed daily phone calls with the child. Mother’s visits were not
scheduled in advance; instead, the week Mother wanted a visit she would call or text the
DCS representative to request a visit based on when she would have transportation, and if
possible the visit would then be arranged to accommodate Mother.

Over the next several months, Mother exercised some of the visitation allocated to her, but
not all; she ended up seeing Son approximately once a month. At first, Son apparently cried
and became upset when his visits with Mother would end. Over time, however, Son stopped
crying when the visits ended and even began wanting them to end early. Nevertheless,
Mother spoke to the child on the telephone quite often.4

2
 For reasons that do not appear in the record, there was a delay in the entry of the trial court’s written order
requiring Mother to pay child support. As a result, there were problems with Mother’s first few attempts to
pay child support because the child support office had no order on file and did not have the children’s social
security numbers in the system. Therefore, Mother’s first several payments were returned to her. She
deposited these returned checks into a bank account, but the money disappeared from the account without
explanation. Once the trial court’s child support order was entered, Mother’s child support payments were
garnished from her wages. In the trial below on the petition to terminate, there was no explanation for the
money that allegedly disappeared from Mother’s bank account.
3
    The record does not indicate why the trial court required Mother’s visits with the child to be supervised.
4
    Mother complained repeatedly that the foster parents often did not make the child available for her
                                                                                                (continued...)

                                                       -3-
Son remained in this foster family for over a year.5 At one point, the foster parents indicated
that they hoped to adopt him.

In March 2012, DCS filed the instant petition in the Juvenile Court, asking the Juvenile Court
to terminate Mother’s parental rights as to Son.6 The petition alleged several grounds for
termination: abandonment by failure to visit and failure to support, abandonment by failure
to provide suitable home, persistent conditions, and substantial noncompliance with the
permanency plan.7 The petition asserted that Mother had failed to make lasting changes in
either her conduct or her circumstances to make it safe for the child to return to her custody,
and alleged that Mother and Son had no meaningful relationship, so termination was in the
child’s best interest. Mother was appointed counsel to represent her in the termination
proceedings.

The Juvenile Court conducted a bench trial on the DCS petition to terminate over two
nonconsecutive days, on June 14, 2012 and July 3, 2012. The trial was not bifurcated, so the
trial court heard evidence on grounds and best interest at once. By the time of trial, Mother
had maintained stable employment for approximately four months working at McDonald’s
restaurant, was paying monthly child support, and was attending school at night.8 However,
at the time of trial, Mother was living with her boyfriend and had not secured housing of her
own.9 The trial court heard testimony from several DCS representatives and from Mother.




4
    (...continued)
scheduled telephone visitation. Mother reported her concerns to the DCS resource coordinator for the family.
It appears that DCS discussed Mother’s concerns at team meetings, but took no immediate action.
5
 At various times, Mother was critical of the care these foster parents gave to Son. She understood from Son
that the parents utilized corporal punishment in the home, felt that Son’s clothes were often dirty or
seasonally inappropriate, and believed that the foster parents often put on the child’s leg braces and shoes
incorrectly. The DCS representative, however, characterized Son’s interaction with this foster family as
“very positive.” After being told by Mother that Son had reported that he “got a whipping” by the foster
parents, DCS spoke to the child; he recanted the allegations so DCS took no further action at that time.
6
    The petition sought to terminate Mother’s parental rights only as to Son, not Daughter.
7
    Tenn. Code Ann. §§ 36-1-113(g)(1)-(3); 36-1-102(1)(A)(i)-(iii).
8
In the months preceding the filing of DCS’s petition to terminate, prior to working for McDonald’s, Mother
worked for a temporary agency in a variety of jobs.
9
 The record does not contain any information regarding the living conditions at the home of Mother’s
boyfriend.

                                                      -4-
In the first segment of the trial in June 2012, the trial court heard the testimony of the DCS
case worker from Life Care and Family Services assigned to the family, Michelle Dennis.
Ms. Dennis explained that she had worked with Mother for approximately three years,
beginning when Mother was in high school and living with her mother. At that point, Son
was not in DCS protective custody; Ms. Dennis was working with Mother because of the
instability in the home of Mother’s mother. Ms. Dennis testified that she saw Mother “most
definitely once a week, sometimes . . . twice a week.” During the time she spent with
Mother, Ms. Dennis said, they had worked on things such as educational goal-setting,
budgeting, parenting, anger management, boundaries, and improving communication skills.
Ms. Dennis thought that Mother could benefit from additional counseling, but observed
overall that “from when I first started working with [Mother] to now, she has walked
milestones. She’s totally did a 360, so a lot of – a vast amount of improvement.” Ms. Dennis
described Mother as “cooperative” and “receptive,” and said that Mother pays attention to
instruction and does her best to follow through. She added that Mother at times became
overwhelmed by the obstacles before her.

Ms. Dennis outlined the priorities for Mother in accomplishing the goals in the DCS
permanency plan. She said that the first concern was employment, so that Mother could
maintain housing and have income to pay bills. Ms. Dennis helped Mother apply for work
at a variety of places and assisted her in following up with potential employers. Ms. Dennis
also worked with Mother in setting a budget. Mother’s attempts to budget were frustrated
by needy family members, so they also worked on setting boundaries with loved ones. Ms.
Dennis noted that Mother had never had a driver’s license, but chose not to focus on helping
Mother obtain a driver’s license because Mother did not have a vehicle to drive.

During this time, Ms. Dennis testified, Mother was constantly moving from home to home.
Ms. Dennis estimated that Mother had lived in approximately five places, all of which were
in someone else’s name. At the time of trial, Mother had an application on file for subsidized
housing in which Mother’s rent would be based on her income level. Ms. Dennis was
confident at trial that Mother would receive a subsidized apartment when one became
available; she expected Mother’s application to be processed in the next couple of months.

Ms. Dennis said that she had worked with Mother on her parenting skills and anger
management. She said that Mother had made progress in both, but still had room for
improvement, particularly in anger management. Ms. Dennis indicated that Mother would
benefit from additional counseling, and that she intended to continue to work with her
regardless of the outcome of the termination proceedings.

The trial court next heard testimony from Mother. Since February 2012, Mother said, she
had worked at McDonald’s restaurant for $7.50 per hour, approximately 35-40 hours a week.

                                             -5-
Mother said she had asked the McDonald’s managers to schedule her as many work hours
as possible, to enable her to get an apartment. At the time of trial, Mother was living with
her boyfriend; Mother said that she was paying him $300 per month in rent. She noted that
she is dependent on him and her co-workers to get to and from work and school because she
does not know how to drive, has never had a driver’s license, and does not own a car.
Despite moving several times, Mother said she had never been without a place to stay since
leaving her mother’s home in August 2010.

Mother acknowledged in her testimony that she was to pay $25 per month in child support
for Son. Since she began working at McDonald’s, Mother said, her child support payments
were removed from her paycheck each month. In that way, she had paid child support every
month.

Mother acknowledged that she had not taken advantage of all the visitation with Son she was
allowed under the trial court’s order. She said that her failure to use all of her visitation was
due primarily to a lack of financial resources. Mother explained that she thought it was
important for her to provide Son with snacks and activities at their visits, because it was her
job as his mother and because Son had come to expect it. Mother noted that she was not
receiving any food stamps or government assistance and said she did not have enough money
to provide Son with the snacks and activities he expected at their visits.10

Mother was asked whether she thought her bond with Son had diminished over time, in view
of the fact that Son initially would cry at the conclusion of their visits and over time stopped
crying at the end of the visits and even wanted to end the visits sooner than scheduled.
Mother responded by saying that she did not think that bond between them had diminished
in any way. She thought it was a good thing that Son no longer cried at the end of their
visits; she viewed it as him being strong. No matter how long their visits are, Mother said,
they “have good conversation” and “still have a laugh at anything.”

Mother noted that she frequently attended Son’s medical appointments, as often as possible
when she got notice of them, although technically her attendance at these appointments was
not classified as “visiting” with the child for purposes of the permanency plan. Mother said
she also had a telephone call with Son nearly every day since he was taken into DCS
protective custody. She said that, with the exception of approximately five times when her
phone was shut off for financial reasons, she had made those calls to Son every night at 7:00
p.m., unless her work schedule interfered, in which case she would reschedule the call.
Mother voiced frustration that Son’s foster parents sometimes did not make the child
available at the scheduled time.

10
     The only government assistance she received, Mother said, was TennCare.

                                                    -6-
Overall, Mother believed she had made good progress and felt that things would fall into
place if she were given a bit more time to get the subsidized apartment for which she had
applied. Asked why termination of her parental rights was not in Son’s best interest, Mother
responded:

       I mean, that’s my child. I brought him into this world. I mean, I should be
       able – I mean, I should be the one to raise him and not somebody else. It
       should be me who– you know, he’s used to seeing me when he goes to sleep
       and when he wakes up. He’s seeing me playing this – we go outside and we
       play. It’s just – it used to be me and him, and now he’s with somebody else
       and he tells me on occasion he wants to come home, and all I can do is tell him
       I’m trying my hardest to get him home.

The trial court heard testimony from another DCS witness, Beth Pitsinos, an Omni Vision
resource coordinator who was tasked with supervising Son’s foster home and Son’s visits
with Mother. Describing the visits, Ms. Pitsinos said that Mother always gave her full
attention to Son, talking and interacting with him during the entire visit. She noted that
Mother was always conscientious about providing food, snacks, and activities for Son during
their visits. The location for the visits was chosen by Mother; they consisted of things like
picnics in the park and trips to the mall or to a bookstore. In early visits, Ms. Pitsinos said,
Son would begin to cry as soon as she mentioned getting ready to leave Mother; she said that
Son “would cry the whole way home.” As time wore on, Ms. Pitsinos testified, Son
remained excited and happy to go to the visits with Mother, but began wanting to leave the
visits early to return to school or aftercare.

Ms. Pitsinos testified that she had no “negative experiences” with Mother during her visits
with Son, the only problem was that Mother did not take advantage of all the visitation she
was permitted to have. Mother was allotted four hours per month with Son, and Ms. Pitsinos
estimated that the typical visits were about an hour long, once a month. Ms. Pitsinos
explained that Mother had not missed scheduled visits; rather, Mother was often unable to
schedule visits for lack of transportation and occasionally for lack of telephone service. Ms.
Pitsinos believed that the inconsistency of visitation and short length of the visits contributed
to the weakening of the bond between Mother and Son. Ms. Pitsinos’ testimony concluded
the first day of the trial.

The trial resumed on July 3rd. At the outset, the trial court heard testimony from DCS family
service worker Ebony Pass Lott about the significant changes in Son’s living situation that
had occurred since the first day of trial. Less than a week before resumption of the trial, Ms.
Pass Lott explained, DCS held a team meeting about Son to discuss the results of an
investigation into Son’s foster placement. At the meeting, she said, DCS decided that it was

                                               -7-
no longer in Son’s best interest to remain in the foster home in which he had been residing
for approximately 18 months. Questions from Mother’s counsel to Ms. Pass Lott on the
reasons for the DCS decision to remove Son from his foster home were met with objections
that were sustained by the trial court.11 Ms. Pass Lott testified that Son had been moved to
a new foster home. The new foster home was characterized as a “pre-adoptive home,” even
though Ms. Pass Lott said that the new foster family would not be eligible to adopt Son until
the child had lived in the home for a least six months. Ms. Pass Lott offered no testimony
on Son’s situation in the new foster home.

Ms. Pass Lott described Son as “[s]weet, very kind, lovable, energetic.” She said that the
child was still being treated for birth defects; the treatment required him to wear leg braces.
Not long before the trial, Ms. Pass Lott said, Son underwent elective surgery related to his
birth defect. The surgery was described as not “medically necessary,” but “medically
indicated.” Mother was initially hesitant about Son undergoing the corrective surgery
because the child had told her that he was scared and did not want it. Eventually, however,
Mother agreed that the child should undergo the surgery.

Similar to Ms. Pitsinos’ testimony, Ms. Pass Lott said that the reason Mother did not exercise
all of her allotted visitation centered on Mother’s work schedule, lack of monetary resources,
and transportation issues. Although Ms. Pitsinos observed most of Mother’s visits with son,
Ms. Pass Lott said that she supervised a few of Mother’s visits. Generally speaking, Ms.
Pass Lott said, Mother “was happy to see [Son] and he was happy to see her.” 12 This
concluded the testimony at trial.

At the conclusion of the trial, the trial court rendered on oral ruling holding that grounds
were established and that termination of Mother’s parental rights was in Son’s best interest.
In September 2012, the trial court entered a lengthy 31-page written order with findings of



11
  The State objected to questions by Mother’s counsel on the reasons for changing the child’s placement,
arguing that it was not pertinent to either grounds or the child’s best interest. We are puzzled at the trial
court’s exclusion of this testimony. It is often important for the trial court to have evidence of how the child
is doing while not in his parent’s custody, to make an informed decision on whether the child’s best interests
are served by terminating the parental relationship. Here, testimony on how the child fared in his previous
foster placement, the reasons for the change in foster placement, and how the child was doing in his new
foster home, would all be relevant to whether terminating Mother’s parental rights is in the child’s best
interest.
12
  Ms. Pass Lott seemed to disagree with Ms. Dennis’s assessment that, with further counseling and services,
Mother’s compliance with the permanency plan goals would improve. There were numerous objections to
the questions put to Ms. Pass Lott on this issue, however, and repeated attempts to rephrase the question to
meet the objections resulted in a query so confusing that Ms. Pass Lott’s response is not useful to the Court.

                                                      -8-
fact and conclusions of law, explaining the reasoning for the court’s decision and
incorporating much of the trial court’s oral ruling.

In the order, the trial court first found that all five grounds for termination alleged by DCS
had been established by clear and convincing evidence. The order included factual findings
as to each ground.

The order then addressed whether terminating Mother’s parental rights was in Son’s best
interest. In the order, the trial judge acknowledged “really struggling” with the best interest
determination. The trial court acknowledged the strides that Mother had made in overcoming
her many obstacles, and especially noted Mother’s accomplishment in graduating from high
school, given her circumstances. For all that, the trial judge stated that she “wonder[ed] why
couldn’t that person (Mother) that did all that back then get the necessary things done in this
matter to be reunified with her Child, because the Court believes [that] Mother has the
ability.”

The trial court expressed considerable disappointment in how Son’s foster care was handled.
Referencing the testimony of Ms. Pass Lott, the trial court observed: “It is a pre-adoptive
home, and the Court hopes that it’s going to be a permanent home for [Son], but in this crazy
world we call Juvenile Court, we don’t have our crystal balls, but the Court has to go and
look to the law and do what the law requires and dictates the Court should do as mandated
by said law.” The trial court then made the following findings of fact:

       We are directed by statute to not tear up families but reunify, but at the same
       time, we’ve got this law that says if Parents don’t do what the law dictates that
       foster care is temporary, and it is the alpha and omega that we have
       permanency for our Children and the question is “is it in the best interest to
       terminate?”, and [DCS’s counsel] I believe is correct, it is [in] the best interest
       to terminate and it achieves and furthers the goal of achieving permanency.
       Therefore the Court makes the following findings in fact as to best interest as
       it is dictated by statute to do:

       48. Finding in fact one, that I’ve just found by clear and convincing evidence
       as to the permanency plans, persistence of conditions and substantial non-
       compliance that it would be in the best interest to terminate because Mom has
       made no adjustment of her circumstance, her conduct or conditions as we sit
       here today to make it safe for her son to return home to her.

       49. Finding in fact next, that she has not made a lasting adjustment after 22
       months of reasonable efforts by the State, and all I’m hearing is, we might

                                               -9-
have housing in two months and we do have a job, and we have heard from
Mother that she should be able to secure housing in a couple of months
through Spring Valley, but unfortunately there is no guarantee of that and the
Court must look at where we are today and Mother is still without appropriate
and safe housing for [Son].

50. Finding in fact next, that Mother hasn’t visited regularly. It’s just the
opposite. During the four (4) months preceding the filing of the State’s
Petition Mother only exercised less than 20% . . . of the visitation time that .
. . was allowed.

51. Finding in fact next, that the Court must ask “do we have a meaningful
parent/child relationship between Mom and [Son]?” The Court finds that we
have a relationship of Mom and son, but the statute says a meaningful
relationship, and the Court finds there is not a meaningful relationship due to
Mother’s failure to visit on a regular basis and as such Mother has created this
barrier to reunification.

52. I don’t think I can give the best interest factor of the effect of change in
caretakers to either party because [Son’s] placement was changed less than a
week ago, but the Court also finds that changing placement again either to
another foster home or back to the Mother’s home would be very harmful to
this Child. The Court has heard that the current placement is a pre-adoptive
home, but the Court cannot give any weight to any kind of bond with the foster
parents and it can not give weight as to whether or not they are willing, able,
and capable of adopting, due to the Child just recently being placed in their
home.

53. So the Court determines best interests by weighing all of the statutory
factors and again the Court notes it cannot delay permanency and on behalf of
the Mother it breaks the Court’s heart, really, to make this ruling today, but
based upon the evidence presented, the statutory requirements and the mandate
to achieve permanency the Court must find that it is in the best interest to
terminate Mother’s Parental Rights, because I’ve got to have permanency for
[Son] and the Court is just sorry Mother couldn’t do it quicker before 22
months of DCS involvement, including 18 months of foster care. Therefore
the Court finds it is in the best interest of [Son] to terminate Mother’s
[p]arental rights and grant full and complete guardianship to DCS, State of
Tennessee, finding the same in fact and by conclusion of law, by clear and
convincing evidence.

                                      -10-
Thus, in making its best interest determination, the trial court relied on the fact that Mother
had not yet improved her situation sufficiently to regain custody of Son, that she did not visit
with the child as often as allowed, and that the bond between Mother and Son was not
sufficiently strong. The trial court gave no weight to the child’s bond with his foster family
at the time of the trial court’s decision. Weighing these factors, the trial court held that
termination of Mother’s parental rights was in Son’s best interest. Mother now appeals.

                      ISSUES ON A PPEAL AND S TANDARD OF R EVIEW

On appeal, Mother challenges the Juvenile Court’s holding that termination of her parental
rights was in Son’s best interest.

Termination proceedings are governed by statute in Tennessee. A party with standing to seek
the termination of the parental rights of a biological parent must first prove at least one of the
statutory grounds for termination. Tenn. Code Ann. § 36-1-113(c)(1)(2012). Second, the
party who seeks termination must prove that termination of the parental rights of the
biological parent is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c)(2).

Because of the profound consequences of a decision to terminate parental rights, courts must
apply a higher standard of proof. Therefore, the elements required for termination of parental
rights must be proven by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c)(1);
In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007); In re Valentine, 79 S.W.3d
539, 546 (Tenn. 2002); In re Askia K. B., No. W2010-02496-COA-R3-PT, 2011 WL
4634241, at *7; 2011 Tenn. App. LEXIS 549, at *21 (Tenn. Ct. App. Oct.7, 2011). The
heightened burden of proof in cases involving the termination of parental rights serves to
minimize the risk of an erroneous decision. In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct.
App. 2004).

Evidence that meets the clear and convincing evidence standard “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 Askia K. B., 2011 WL
4634241, at *7, 2011 Tenn. App. LEXIS 549, at *20; In re A.T.P., No. M2006-02697-COA-
R3-JV, 2008 WL 115538, at *4; 2008 Tenn. App. LEXIS 10, at *13-14 (Tenn. Ct. App.
Jan.10, 2008) (citing In re Valentine, 79 S.W.3d at 546; State v. Demarr, No. M2002-
02603-COA-R3-JV, 2003 WL 21946726, at *9; 2003 Tenn. App. LEXIS 569, at *26 (Tenn.
Ct. App. Aug.13, 2003)). “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.’ ” In re M.A.R., 183 S.W.3d 652,
660 (Tenn. Ct. App. 2005) (quoting In re C.W.W., 37 S.W.3d 467, 474 (Tenn. Ct. App.
2000)).

                                               -11-
Because of the clear and convincing evidence burden of proof in parental termination cases,
appellate courts adapt the customary standard of review set forth in Rule 13(d) of the
Tennessee Rules of Appellate Procedure. In re Tiffany B., 228 S.W.3d 148, 156 (Tenn. Ct.
App. 2007); In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005). First, the trial
court’s specific factual findings must be reviewed de novo in accordance with Rule 13(d),
presuming the finding to be correct unless the evidence preponderates against it. In re
Tiffany B., 228 S.W.3d at 156; Tenn. R. App. P. 13(d)(2012). When the trial court’s factual
finding is based on the assessment of a witness’s credibility, this Court will afford great
weight to that determination and will not reverse it absent clear evidence to the contrary. In
re M.L.D., 182 S.W.3d 890, 894 (Tenn. Ct. App. 2005). Second, the appellate court must
decide whether the facts, either as found by the trial court or as supported by the
preponderance of the evidence, clearly and convincingly establish the elements required to
terminate a biological parent’s parental rights. In re Audrey S., 182 S.W.3d at 861; In re
Askia K. B., 2011 WL 4634241, at *7; 2011 Tenn. App. LEXIS 549, at *22. The trial court’s
conclusions of law are reviewed de novo with no presumption of correctness. See In re the
Adoption of A.M.H., 215 S.W.3d at 809; In re Tiffany B., 228 S.W.3d at 156.

                                         A NALYSIS

A biological parent’s right to the care and the custody of her child is among the oldest of the
judicially recognized liberty interests protected by the due process clauses of the federal and
state constitutions. Troxel v. Granville, 530 U.S. 57, 65; 120 S. Ct. 2054, 2060 (2000); In
re Adoption of A.M.H., 215 S.W.3d at 809; Hawk v. Hawk, 855 S.W.2d 573, 578-79 (Tenn.
1993); In re Giorgianna H., 205 S.W.3d 508, 515 (Tenn. Ct. App. 2006). While this right
is fundamental and superior to the claims of other persons, it is not absolute. In re
Giorgianna H., 205 S.W.3d at 515 (citing DCS v. C.H.K., 154 S.W.3d 586, 589 (Tenn. Ct.
App. 2004)). It continues without interruption only so long as the parent has not relinquished
it, abandoned it, or engaged in conduct requiring its limitation or termination. Blair v.
Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002); In re M.J.B., 140 S.W.3d at 653.

As noted above, Tennessee statutes require the party who seeks to terminate the parental
rights of a biological parent to prove by clear and convincing evidence both the grounds for
termination and that termination is in the child’s best interest. Tenn. Code Ann. § 36-1-
113(c). In this appeal, Mother does not challenge the trial court’s findings on grounds, but
appeals only the trial court’s finding that termination of her parental rights is in Son’s best
interest.

A finding of grounds to terminate the parental rights of a biological parent does not
automatically mean that termination is in the child’s best interest. Dept. of Children’s Servs.
v. S.M.D., 200 S.W.3d 184, 201 (Tenn. Ct. App. 2006). In considering a petition to

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terminate parental rights, the court is called to make a separate determination of a child’s best
interest viewed from the perspective of the child, not the parent. In re Audrey S., 182
S.W.3d at 878. Ascertaining the child’s best interests in a termination proceeding is a
fact-intensive inquiry. Id. The court must weigh the evidence in light of several statutory
factors set forth in Tennessee Code Annotated § 36-1-113(i),13 as well as any other relevant
factors, to determine whether irrevocably severing the relationship between parent and child
is in the child’s best interest. In re Giorgianna H., 205 S.W.3d at 523. The burden of
proving by clear and convincing evidence that termination of Mother’s parental rights is in
Son’s best interest falls on the party seeking termination, here, DCS. In re Arteria H., 326
S.W.3d 167, 175 (Tenn. Ct. App. 2010); Tenn. Code Ann. § 36-1-113(c).


13
  Under Tennessee Code Annotated § 36-1-113(i), the factors examined in order to determine whether
termination is in the children’s best interests are:

        (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 or
        controlled substances as may render the parent or guardian consistently unable to care for
        the child in a safe and stable manner;
        (8) Whether the parent’s or guardian’s mental and/or emotional status would be detrimental
        to the child or prevent the parent or guardian from effectively providing safe and stable care
        and supervision for the child; or
        (9) Whether the parent or guardian has paid child support consistent with the child support
        guidelines promulgated by the department pursuant to § 36-5-101.

Tenn. Code Ann. § 36-1-113(i)(1)-(9) (2012).

         Neither the trial court nor this Court is required to apply each factor in the best interest
determination. In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). The relevancy and weight given
to each factor depends on the unique facts in each case. In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App.
2005).

                                                     -13-
In this case, the trial court clearly struggled with its decision to terminate Mother’s parental
rights as to Son. It recognized that Mother had faced daunting hurdles and had made
tremendous progress. The trial court rightly emphasized the importance of achieving
permanency for children in foster care, as reflected in Tennessee’s termination statutes. As
Mother had had significant time to erase the obstacles to returning the child to her custody
and had not yet reached the mark, the trial court appeared to reason, it was in Son’s best
interest to sever the child’s relationship with his mother.

Under the facts of this case, we must respectfully disagree. The record is devoid of any
evidence that the relationship between Mother and Son is detrimental to the child in any way.
Remarkably, given her history, the record shows that Mother has no criminal history and has
never had any drug, alcohol, or physical abuse issues. Mother’s dogged determination to
overcome the odds against her provide a powerful role model for a child with many obstacles
of his own.

The trial court characterized Mother’s visitation with Son as “token.” The record indicates
that, although the maximum amount of visitation was not exercised, the visits were regular,
appropriate, and positive in tone, and were supported by Mother’s frequent telephone calls.
While the parental bond has clearly suffered from the long period of time in which Son has
been in foster care, the evidence indicates that the relationship is affectionate and far from
non-existent.

Mother’s continued efforts to participate in Son’s medical care are significant in this case.
As a special-needs child, Son’s medical problems remain substantial. Mother’s attendance
at the child’s medical appointments, her participation in medical decisionmaking, and her
attention to whether foster parents are tending to the child’s medical needs are crucial.
Decisions such as whether the child should undergo corrective surgery are best made in
consultation with a responsible loving adult who knows the child’s history, medical and
otherwise. The record indicates no such person in Son’s life, other than Mother.

Given the upheaval in Son’s foster placement, the record does not show that termination of
Mother’s parental rights furthers the goal of achieving permanency for the child. At the time
of the second segment of the trial, Son had been in his new foster home only a few days. For
DCS to describe such a foster placement as “pre-adoptive” is simply eyewash. In this record,
it appears that Mother is in fact the only consistent adult presence in Son’s life.

We recognize, as did the trial court, that Mother was in no position at the time of trial to take
custody of Son. That fact should not be minimized. However, a decision not to grant a
petition to terminate parental rights does not mean that custody of the child is returned to the



                                              -14-
respondent parent. The issue before us is confined to whether, under the circumstances of
this case, it is in the child’s best interest to completely terminate the parent-child relationship.

“No civil action carries with it graver consequences than a petition to sever family ties
irretrievably and forever.” In re M.J.B., 140 S.W.3d at 653 (citing M.L.B. v. S.L.J., 519
U.S. 102, 119 (1996)). We must respectfully conclude that DCS failed to establish by clear
and convincing evidence that termination of Mother’s parental rights is in Son’s best interest.
In re Madilene G.R., No. M2012-01178-COA-R3-PT, 2013 WL 139564, at *14 (Tenn. Ct.
App. Jan. 10, 2013) (citing In re Audrey S., 182 S.W.3d at 860). Therefore, the Juvenile
Court’s decision to terminate Mother’s parental rights must be reversed.

                                          C ONCLUSION

The decision of the juvenile court is reversed. Costs on appeal are assessed against
Petitioner/Appellee State of Tennessee Department for Children’s Services, for which
execution may issue, if necessary.




                                                              ___________________________
                                                                HOLLY M. KIRBY, JUDGE




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