IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned On Briefs September 2, 2010

IN THE MATTER OF: SHANYA A.A. (d.o.b. 2/17/07), A Child Under

Eighteen Years of Age 

Direct Appeal from the Chancery Court for Shelby County

No. CH-08-2172-3 Kenny Armstrong, Chancellor

No. W2010-00848-COA-R3-PT - Filed October 6, 2010

This is a termination of parental rights case. The Department of Children’s Services (“DCS”)

obtained custody of the child at issue under the terms of a protective custody order entered shortly

after the child’s birth. The juvenile court cited the mother’s history with DCS and her history of

mental illness as the primary reasons supporting removal. DCS developed two permanency plans

with the mother designed to address her mental illness and equip her with the parental skills

necessary to care for the child. The mother, however, did not carry out her responsibilities under the

plans, take her medication as prescribed, or consistently attend critical mental health appointments. 

DCS accordingly petitioned to terminate the mother’s parental rights on multiple grounds. After a

hearing that the mother did not attend, the court terminated her parental rights on the grounds of

abandonment by willful failure to provide financial support, substantial noncompliance with the

responsibilities of the permanency plans, and persistence of the conditions that required the child’s

removal. The mother appeals, arguing that DCS did not make reasonable efforts to reunite her with

the child and did not clearly and convincingly prove grounds for termination. We disagree and

affirm the decision of the trial court.

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

and Remanded

DAVID R. FARMER, J., delivered the opinion of the Court, in which HOLLY M. KIRBY, J. and

J. STEVEN STAFFORD, J., joined.

Cicely A. Dickerson, Memphis, Tennessee, for the appellant, Sharon T.A.

Robert E. Cooper, Jr., Attorney General and Reporter, Michael E. Moore, Solicitor General

and Elizabeth C. Driver, Senior Counsel, for the appellee, State of Tennessee Department of

Children’s Services.
OPINION

I. Background and Procedural History

The respondent/appellant, Sharon T.A. (“Mother”), is a troubled young woman with

a history of mental illness, including at least three inpatient hospitalizations at Lakeside

Behavioral Health Systems (“Lakeside”). In 2005, doctors diagnosed Mother with a

psychotic thought disorder, which included a differential diagnosis of paranoid

schizophrenia, bipolar disorder, or schizo-affective disorder. DCS’s expert witness, Dr.

Michael Patterson, explained the differential diagnosis as follows:

[T]here are various types of psychiatric disorders. A differential diagnosis

means that these are the possibilities more likely than not of what we are

dealing with.

But in order to make a more precise diagnosis, you cannot diagnose, or

at least you should not diagnose, a specific disorder in a cross-section with a

single snap. We are looking for the longitudinal view, patterns or trends in

order to establish a diagnosis of an illness such as schizophrenia, bipolar

disorder, because they have overlapping features.

They are all in the group of psychotic disorders. There are certain

features she presented with which obviously by definition represent psychosis,

hearing voices, visual hallucinations, paranoid delusions, which she possessed.

Also, there was a portion of her illness which was mood-related.

Therefore, we considered that primarily this was most likely a schizoaffective disorder. There was an affective component, however, we couldn’t

rule out bipolar disorder as well. It’s sort of a broad category that incorporates

all of the above that I have mentioned.

Dr. Patterson testified that Mother’s disorder is serious and inevitably becomes

symptomatic if untreated. According to Dr. Patterson, the positive symptoms of Mother’s

disorder include auditory hallucinations, paranoid delusions, and disconnectionsfrom reality.

He testified that without proper medication and treatment Mother’s symptoms can increase

her propensity for violence and abuse, decrease her capacity to perceive rationally her

environment, and diminish her ability to interact appropriately with others. Importantly,

symptoms of Mother’s illness can also severely affect her ability to care for herself and the

child. As Dr. Patterson explained, if a person in Mother’s condition is hearing voices or

experiencing a false perception of reality, “there is really no way to predict what the child

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represents to them in their mind. And there is an endangerment posed by that.” Although

Dr. Patterson believes Mother can potentially “reduce or slow the progression of the illness

to a point where symptoms are manageable,” management of her chronic, progressive

disorder requires proper treatment and medication.

Mother, however, has never demonstrated an ability or willingness to manage her

disorder on a consistent basis. Doctors, nurses, and mental health professionals have

repeatedly stressed to Mother the importance of keeping her appointments and taking her

medication as prescribed, beginning with her first admission to Lakeside in 2005 and

continuing forward. Mother nonetheless has consistently failed to take her medication as

prescribed, to attend her scheduled appointments on a consistent basis, and to follow through

on the recommendations of medical professionals. For example, Mother was readmitted to

Lakeside in 2005 because she was noncompliant with her outpatient follow-up and did not

take her medication as prescribed. Dr. Patterson, who was also Mother’s admitting physician

at Lakeside, explained that she “essentially remained psychotic and got readmitted to the

hospital.”

Hospital employees were aware of Mother’s history of mental illness, as well as her

past history with DCS that resulted in the placement of two prior children with extended

family, when she gave birth to her third child, Shanya A.A. (“Shanya”). As a result, DCS

received a referral shortly after Shanya’s birth citing Mother’s history of mental illness, her

history with DCS, and the corresponding substantial risk of physical injury to the child. DCS

responded with a petition to adjudicate the child dependent and neglected, which stated that

the pending threat to the child’s safety required the entry of an immediate protective custody

order. The juvenile court agreed and entered a protective custody order removing Shanya

from Mother’s care on February 27, 2007.

On March 14, 2007, DCS developed the first of two permanency plans for Mother.

The first plan contained the dual goals of reunification with Mother or placement with

relatives. Its desired outcomes included helping Mother develop the emotional stability and

parental ability needed to care for the child, developing a relationship between Mother and

the child, and ultimately placing the child in a stable home. The first plan required Mother

to contact DCS regarding visitation, submit to a mental health assessment, and follow all

recommendations of the mental health provider. Although there is minimal testimony

describing DCS’s effort to help Mother meet the requirements of the initial parenting plan,

the record does reflect that DCS referred Mother for a behavioral health assessment and

provided her visitation with the child during this period.

On August 27, 2007, Mother was again admitted to Lakeside after she was found

wandering the streets in a confused and anxious state. Upon arrival, Mother was unable to

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explain why she was at the hospital. Doctors described her as impulsive, easily agitated,

confused, and experiencing auditory hallucinations to the extent she was a danger to herself.

Due to her needs for immediate medication and assurance of safety, it was recommended that

she receive inpatient treatment. Mother thereafter remained at Lakeside for one week,

receiving a comprehensive psychosocial assessment, around-the-clock observation, group

therapy, and medication management. On September 4, 2007, Lakeside discharged Mother

after prescribing her daily medication, setting up a mental health follow-up with the

Whitehaven Southwest Mental Health Center (“WSMHC”), and recommending further

follow-up with Mother’s primary care physician for any recurring medical issues. She was

again instructed to keep her appointments with WSMHC. Mother, however, ultimately did

not comply and was discharged from WSMHC for failure to attend scheduled appointments

with her case manager.

The second permanency plan, which was entered on April 8, 2008, correspondingly

focused on Mother’s need to treat her mental disorder and expanded Mother’sresponsibilities

under the plan. It required Mother to provide stable housing for the child, attend all mental

health appointments, take her medication as prescribed, provide financial support for the

child, attend parenting classes, and maintain contact with DCS. In response, DCS heightened

its efforts to aid Mother. The Department again referred Mother to WSMHC for counseling

and treatment, referred her to the UT Boling Center for Developmental Disabilities for

parenting classes; provided her bus passes; and offered to help her find proper housing.

Mother, on the other hand, largely neglected these opportunities. Ms. Gray, Mother’s family

services worker, testified that Mother did not comply with either permanency plan,

participate in the requisite mental health case management services, or accept DCS’s offer

to find appropriate housing.

Mother also neglected her few opportunities to form a relationship with Shanya. DCS

prepared and administered a visitation schedule for Mother and other family members

following the creation of the second permanency plan, even though Mother never contacted

DCS to schedule visitation. DCS scheduled six monthly visits for Mother beginning April

2008 which started at 1:00 p.m. and concluded at 5:00 p.m. Mother was consistently late

to the few scheduled visits, arriving no earlier than 2:45 p.m. during the six-month period.

Additionally, Ms. Gray testified that the only reason Mother attended the finalscheduled visit

in October, again appearing two-and-a-half hours late, was to borrow $20 from a family

friend. Unsurprisingly, Mother did not bond very well with Shanya during these limited

visits.

On November 21, 2008, DCS petitioned to terminate the parental rights of Mother and

Unknown Father, noting that two putative fathers had filed waivers of interest and notice.

The petition alleged the following grounds for termination with respect to Mother:

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abandonment by failure to visit, abandonment by failure to support, substantial

noncompliance, persistence of conditions, and mental incompetency. According to the

petition, Mother had not maintained financial stability, followed the recommendations of her

mental health assessment, maintained contact with DCS, attended her mental health

appointments, participated in parenting classes, or taken her medication as prescribed. In

relation to the child’s best interests, the petition further alleged, among other things, that

Mother had not made an adjustment of circumstances supporting reunification, maintained

regular visitation, or paid child support.

The trial court conducted a final hearing on DCS’s petition on August 18, 2009. The

evidence before the court included testimony from Ms. Gray and Dr. Patterson, as well as

records of Mother’s hospitalizations and treatment. Mother did not appear at the hearing.

1

In light of the evidence before it, the trial court found that DCS had clearly and convincingly

proved the grounds of abandonment by willful failure to support, persistence of conditions,

and substantial noncompliance with the provisions of the permanency plans. The court,

however, did not find clear and convincing evidence to support a finding of mental

incompetency or abandonment by failure to visit. After concluding that termination of

Mother’s parental rights was in the best interests of the child, the court granted DCS’s

petition. Later, the court incorporated its findings into a detailed, written order dated

September 11, 2009. Mother timely filed a notice of appeal.

2

II. Issues Presented

The issues before this Court, as we perceive them, are as follows:

(1) Whether DCS expended reasonable efforts to reunite Mother with

The record shows that Mother provided DCS with multiple addresses throughout the proceedings 1

and it became difficult to locate her as the case progressed. At some point following the filing of DCS’s

termination petition, all contact with Mother ceased. Mother’s attorney conceded in opening arguments that

she had lost contact with Mother prior to the final hearing. Ms. Gray similarly testified that the last face-toface conversation she had with Mother was at a permanency hearing in April 2009 and that her last phone

conversation with Mother occurred in May or June 2009. Ms. Grady received a message from Mother in

May 2009 attempting to provide DCS with a current address for a home study, but the message was

unintelligible. In July 2009, DCS had no current or working telephone for Mother. The guardian ad litem

(“GAL”) appointed to represent Shanya further reported that Mother had disconnected her phones and could

not be found at any of her listed addresses. The GAL’s attempt to contact Mother at her last known address

shortly before the final hearing was unsuccessful, even though neighbors reported seeing Mother that same

day. The GAL left her contact information on Mother’s door and with her neighbor, but mother never

contacted her. Mother nonetheless resurfaced following the termination hearing and initiated this appeal.

The court’s order also terminated the parental rights of Unknown Father. No father has appealed. 2

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Shanya;

(2) Whether DCS clearly and convincingly proved the ground of

substantial noncompliance with the statements of responsibilities in the

permanency plans;

(3) Whether DCS clearly and convincingly proved the ground of

persistence of conditions; and

(4) Whether DCS clearly and convincingly proved that termination of

Mother’s parental rights was in the best interests of Shanya.

3

DCS has waived any reliance on the ground of abandonment by willful failure to support in

this appeal.

III. Standard of Review

This Court reviews a trial court’s findings of fact de novo upon the record, according

a presumption of correctness to the findings unless a preponderance of the evidence is to the

contrary. Tenn. R. App. P. 13(d). This Court will not reevaluate the factual determinations

of a trial court hinging on credibility unless clear and convincing evidence is to the contrary.

In re M.L.D., 182 S.W.3d 890, 894 (Tenn. Ct. App. 2005) (citation omitted). This Court

reviews the record de novo where the trial court has not made a specific finding of fact. In

re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citation omitted). No presumption of

correctness attaches to a trial court’s conclusions of law. Tenn. R. App. P. 13(d); Bowden

v. Ward, 27 S.W.3d 913, 916 (Tenn. 2000).

Tennessee Code Annotated section 36-1-113 governs the termination of parental

rights. The Code provides, in pertinent part:

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

(1) A finding by the court by clear and convincing evidence that the

grounds for termination of parental or guardianship rights have been

Mother does not argue that the trial court incorrectly determined that termination of her parental 3

rights was in the best interests of the child. We neverthelessfind good cause to consider this issue on appeal. 

See Tenn. R. App. P. 2; Tenn. Ct. App. R. 1(b) (permitting suspension of the procedural rules requiring

argument supported by authority and citations to the record for good cause); accord In re I.R.J., No.

M2009-00411-COA-R3-PT, 2009 WL 4017168, at *7, 17-19 (Tenn. Ct. App. Nov. 18, 2009) (no perm. app.

filed) (citations omitted) (conducting a best-interests analysis even though the appellant did not raise the

issue).

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established; and

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

interests of the child.

Tenn. Code Ann. § 36-1-113(c)(1), (2) (Supp. 2009). This two-step analysis requires courts

to consider “whether the trial court’s findings, made under a clear and convincing standard,

are supported by a preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530

(Tenn. 2006). “The ‘clear and convincing evidence’ standard is more exacting than the

‘preponderance of the evidence’ standard, although it does not demand the certainty required

by the ‘beyond a reasonable doubt’ standard.” In re M.L.D., 182 S.W.3d at 894 (citation

omitted). “To be clear and convincing, the evidence must eliminate any substantial doubt

and produce in the fact-finder's mind a firm conviction as to the truth.” Id. (citation omitted).

IV. Analysis

A. Reasonable Efforts

Mother first submits that DCS did not make reasonable efforts to reunite her with

Shanya. As this Court has explained:

Where the Department seeks to terminate parental rights on a ground that

implicates the Department’s obligation to use reasonable efforts to make it

“possible for the child to return safely to the child’s home,” Tenn. Code Ann.

§§ 37-1-166(a)(2), -166(g)(2), those reasonable efforts must be proved by clear

and convincing evidence. In re B.B., No. M2003-01234-COA-R3-PT, 2004

WL 1283983, at *9 (Tenn. Ct. App. June 9, 2004) (citing In re C.M.M., 2004

WL 438326, at *7-8). Thus, the Department ha[s] the burden to prove by clear

and convincing evidence that it exercised reasonable care and diligence to

provide services reasonably necessary to meet Mother’s needs to assist her to

fulfill her obligations under the permanency plans. In re Valentine, 79 S.W.3d

at 546; In re C.M.M., 2004 WL 438326 at *8; Tenn. Code Ann. § 36-1-113(c).

This burden require[s] that the Department present sufficient evidence to

enable us to conclude, without serious or substantial doubt, that the efforts

were reasonable under the circumstances. In re Valentine, 79 S.W.3d at 546;

In re C.D.B., 37 S.W.3d 925, 927 (Tenn. Ct. App. 2000); see Walton v. Young,

950 S.W.2d 956, 960 (Tenn. 1997).

. . . .

“The success of a parent’s remedial efforts generally depends on the

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Department’s assistance and support.” In re Giorgianna H., 205 S.W.3d 508,

518 (Tenn. Ct. App. 2006). Accordingly, the Department’s employees have

an affirmative duty to utilize their education and training to assist parents in

a reasonable way to address the conditions that led to the child’s removal and

to complete the tasks stated in the plan. In re Giorgianna H., 205 S.W.3d. at

519; In re J.L.E., No. M2004-02133-COA-R3-PT, 2005 WL 1541862, at *14

(Tenn. Ct. App. June 30, 2005); In re C.M.M., 2004 WL 438326, at *7; In re

D.D.V., No. M2001-02282-COA-R3-JV, 2002 WL 225891, at *8 (Tenn. Ct.

App. Feb. 14, 2002). This duty exists even if the parent does not ask for

assistance. In re C.M.M., 2004 WL 438326, at *7. The importance of the

Department’s role in this regard has been emphasized by this court on

numerous occasions. In re B.L.C., No. M2007-01011-COA-R3-PT, 2007 WL

4322068, at *8 (Tenn. Ct. App. Dec. 6, 2007) (no Tenn. R. App. P. 11

application filed); In re C.M.M., 2004 WL 438326, at *7 (stating that “[i]n

many circumstances, the success of a parent’s remedial efforts is intertwined

with the efforts of the Department’s staff to provide assistance and support”);

In re J.A.W., No. M2007-00756-COA-R3-PT, 2007 WL 3332853, at *4 (Tenn.

Ct. App. Nov. 8, 2007); In re Randall B., Jr., No. M2006-00055-COA-R3-PT,

2006 WL 2792158, at *5-6 (Tenn. Ct. App. Sept. 28, 2006).

Reasonable efforts are statutorily defined as the “exercise of reasonable

care and diligence by the department to provide services related to meeting the

needs of the child and the family.” Tenn. Code Ann. § 37-1-166(g)(1). The

factors the courts are to use to determine reasonableness include: (1) the

reasons for separating the parents from their children, (2) the parents’ physical

and mental abilities, (3) the resources available to the parents, (4) the parents’

efforts to remedy the conditions that required the removal of the children, (5)

the resources available to the Department, (6) the duration and extent of the

parents’ effortsto addressthe problemsthat caused the childrens[sic] removal,

and (7) the closeness of the fit between the conditions that led to the initial

removal of the children, the requirements of the permanency plan, and the

Departments efforts. In re Tiffany B., 228 S.W.3d 148, 158-59 (Tenn. Ct. App.

2007) (footnote omitted) (citing In re Giorgianna H., 205 S.W.3d at 519).

In re R.L.F., 278 S.W.3d 305, 315-17 (Tenn. Ct. App. 2008) (emphasis omitted). “More

specific to the issue of a parent with known mental health deficiencies, we have repeatedly

found that the Department’s failure to provide needed psychological or psychiatric treatment

constitutes a failure to exercise reasonable efforts.” Id. at 318 (citations omitted).

Having reviewed the record, we find that DCS carried its burden under the

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circumstances. DCS was required to expend reasonable efforts to reunite Mother with

Shanya before terminating her parental rights on the grounds of substantial noncompliance

and persistence of conditions. See In re Tiffany B., 228 S.W.3d 148, 151, 160 (Tenn. Ct.

App. 2007) (vacating a finding of abandonment, substantial noncompliance, and persistence

of conditions for failure to make reasonable efforts); see also In re C.M.M., No.

M2003-01122-COA-R3-PT, 2004 WL 438326, at *7 n.27 (Tenn. Ct. App. Mar. 9, 2004)

(noting that termination based on grounds in Tennessee Code Annotated section 36-1-

113(g)(1)-(3) generally requires reasonable efforts). The General Assembly, however, did

not place the burden to reunify parent and child on DCS’s shoulders alone. See State, Dep’t

of Children’s Servs. v. Estes, 284 S.W.3d 790, 801 (Tenn. Ct. App. 2008) (citation omitted).

Reunification “is a two-way street, and neither law nor policy requires the Department to

accomplish reunification on its own without the assistance of the parents.” In re Tiffany B.,

228 S.W.3d at 159 (citations omitted). “Parents share the responsibility for addressing the

conditions that led to the removal of their children from their custody.” Id. “They must also

make reasonable efforts to rehabilitate themselves once services have been made available

to them.” Id. (citations omitted). It is the opinion of this Court that the same holds true for

parents with known mental health issues, although the determination of what is reasonable

must vary with the degree of incapacity or illness.

In this case, any failure to make reasonable efforts lies with Mother. The primary

4

impediment to Mother’s reunification with Shanya was her history of mental illness,

including her repeated failures to obtain necessary treatment. DCS, recognizing this,

attempted throughout these proceedings to provide Mother with the requisite evaluation,

transportation, medication, counseling, and assistance to help her combat the progression of

her disorder. Mother, however, consistently failed to take her medication on a regular basis,

to attend appointments with her case managers on a regular basis, and to follow through on

the recommendations of medical personnel. Quite clearly, DCS could not control the most

5

important factors to the treatment of Mother’s disorder, and its duty to expend reasonable

efforts did not encompass an obligation to administer medication by force or to compel

physically her attendance at medical appointments. See In re A.W., 114 S.W.3d 541, 546

The only evidence in the record cited to show Mother’s reasonable effortssubsequent to the removal 4

of Shanya demonstrates that she filled out job applications with DCS’s assistance. Additionally, DCS

concedes on appeal that Mother attended some parenting classes.

This is not a case where DCS simply provided the mother with a list of mental health providers and 5

sent her on her way. The record shows that Mother received a mental health evaluation at Lakeside

subsequent to the removal of Shanya and later obtained proper treatment and medication at WSMHC for a

period. Soon thereafter, however, Mother was discharged from WSMHC for failure to attend appointments

with her case manager.

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(Tenn. Ct. App. 2003) (“We are unsure what additional services short of confinement, DCS

could have supplied that would have helped the mother take her medication. . . . Therefore,

we do not think DCS failed to make reasonable efforts to help the mother make the “lasting

adjustment” that is required to avoid the termination of her parental rights.”). We

accordingly hold that DCS made reasonable efforts to reunite Mother with Shanya.

B. Grounds

The next question before this Court is whether DCS clearly and convincingly proved

grounds for termination. This Court will affirm a trial court’s finding of grounds if DCS

clearly and convincingly proved at least one of the statutory bases for termination. State,

Dep’t of Children’s Servs. v. Mims, 285 S.W.3d 435, 449 (Tenn. Ct. App. 2008) (citation

omitted). The grounds before this Court are substantial noncompliance with the statements

of responsibilities in the permanency plans, see Tenn. Code Ann. § 36-1-113(g)(2) (Supp.

2009), and failure to remedy the conditions requiring the child’s removal, see Tenn. Code

Ann. § 36-1-113(g)(3) (Supp. 2009).

i. Substantial Noncompliance

Tennessee Code Annotated section 36-1-113(g)(2) establishes a ground for

termination if “[t]here has been substantial noncompliance by the parent or guardian with the

statement of responsibilities in a permanency plan or a plan of care pursuant to the provisions

of title 37, chapter 2, part 4.” Tenn. Code Ann. § 36-1-113(g)(2). Termination for

substantial noncompliance is warranted only when the plan’s requirements are “‘reasonable

and related to remedying the conditions which necessitate foster care placement.’” In re

Valentine, 79 S.W.3d at 547 (quoting Tenn. Code Ann. § 37-2-403(a)(2)(C)). The

determination of whether noncompliance is substantial compares the degree of

noncompliance with the importance of the unmet obligation. In re M.J.B., 140 S.W.3d 643,

656 (Tenn. Ct. App. 2004) (citations omitted). “Trivial, minor, or technical deviations from

a permanency plan’s requirements will not be deemed to amount to substantial

noncompliance.” Id. at 656-57 (citations omitted).

Mother argues principally that her plans’ requirements were not reasonable and related

to remedying the conditions that required Shanya’s removal. Because the trial court did not

address this issue, our review is de novo. In re Valentine, 79 S.W.3d at 547. Mother submits

that the first plan’srequirement thatshe obtain a mental health assessment wasredundant and

unnecessary, especially where DCS already had her medical records on file. She further

submits that her second plan’s requirement that she attend counseling at WSMHC was

unreasonable because she had failed to make progress there in prior attempts. We disagree

on both points. The principal impediment to Mother’s reunification with the child was a

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psychotic disorder which Dr. Patterson testified required additional monitoring before

doctors could provide a complete diagnosis. Further, Dr. Patterson testified that Mother’s

disorder is progressive and will worsen without treatment. It was therefore entirely

reasonable for DCS to require Mother to receive a current mental health assessment

highlighting her current treatment needs. It was also reasonable to require Mother to

reinitiate her treatment at WSMHC. Mother submits that “[o]bviously this plan was not

working” and DCS should have established a new plan. But any failure on Mother’s part to

benefit from prior counseling at WSMHC is not a reflection on the quality of services

provided; rather, it was Mother’s refusal to attend her appointments that precluded progress.

Mother has cited no testimony or other evidence to demonstrate that WSMHC’s treatment

program, which included counseling and medication management, was inappropriate.

Having reviewed the record, we hold that the requirements of Mother’s permanency plans

were reasonable and related to addressing her mental health issues, providing her with the

parenting skills necessary to care for the child, and establishing the stability needed to

provide a healthy home for the child.

We further hold that DCS clearly and convincingly proved Mother’s substantial

noncompliance with the terms of her parenting plans. The only testimony in the record is that

Mother did not fulfill a single parental responsibility of either plan. Mother did not appear

at the hearing to refute this testimony and she does not argue on appeal that she substantially

complied with the responsibilities of either plan. Instead, she limits her arguments to the

reasonableness of the plans’ requirements and the reasonableness of DCS’s efforts. Having

rejected these arguments above, we affirm the finding of substantial noncompliance. The

record clearly and convincingly showsthat Mother failed to contact DCS regarding visitation

with the child, failed to follow the recommendations of the mental health providers, failed

to attend critical mental health appointments, failed to take her medication as prescribed, and

failed to maintain contact with DCS. These parental responsibilities were essential to

reuniting Mother with Shanya and, therefore, her noncompliance was substantial.

ii. Persistence of Conditions

We next address whether DCS clearly and convincingly proved the ground of

persistence of conditions. Tennessee Code Annotated section 36-1-113(g)(3) establishes

a ground for termination if:

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,

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therefore, prevent the child’s safe return to the care of the

parent(s) or guardian(s), 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(s) or guardian(s) 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[.]

Tenn. Code Ann. § 36-1-113(g)(3)(A)-(C) (Supp. 2009). A finding of persistent

conditions is permissible only if DCS presents clear and convincing evidence to establish

each statutory element. In re Giorgianna H., 205 S.W.3d at 518 (citation omitted).

We hold that DCS clearly and convincingly proved each element of this ground for

termination. Dr. Patterson explained that treatment of Mother’s disorder can prevent or

slow its progression. He testified, however, that “without treatment, ongoing treatment,

the likelihood that these episodes will occur is more often than not.” Dr. Patterson further

testified within a degree of medical certainty that Mother needs constant medical

treatment and medication just to maintain some sort of stability; without it there is a

likelihood that she will deteriorate. The record in this case demonstrates that Mother did

not obtain the requisite treatment or medication on a regular basis. And her most recent

hospitalization in 2007 appears to affirm Dr. Patterson’s testimony. Mother’s pattern of

noncompliance is sufficient in our opinion to clearly and convincingly prove a persistence

of the conditions that led to Shanya’s removal. Mother’s mental health issues and her

failure to seek treatment to address her disorder persist; these conditions in all reasonable

probability would cause the child to be subjected to further abuse or neglect and,

therefore, prevent the child’s safe return to the care of Mother; these conditions are

unlikely to be remedied at an early date; and the continuation of the relationship between

Mother and Shanya greatly diminishes the child’s chances of early integration into a safe,

stable, and permanent home. We affirm the trial court’s finding on the ground of

persistence of conditions.

C. Best Interests

As a final matter, we consider whether termination of Mother’s parental rights is in

the best interests of Shanya. Courts should terminate the parent-child relationship only if

clear and convincing evidence shows that termination is in the best interests of the child.

Tenn. Code Ann. § 36-1-113(c)(2). The General Assembly has established a nonexhaustive list of factors courts should consider when making a best-interests

determination:

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(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) (Supp. 2009).

The best interests of Shanya weigh heavily in favor of termination. Mother’s

unwillingness or inability to obtain treatment for what Dr. Patterson testified is a

manageable mental disorder raises serious questions about her ability to provide a safe

environment for herself and her child over the long term. In addition, Mother made no

meaningful attempt to form a bond with the child, she rarely visited the child, and she

exhibited next to no desire to raise the child. She failed to appear at the dependency and

neglect hearing. She failed initially to respond to the termination petition. She failed to

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maintain contact with DCS. She failed to carry out her responsibilities under the

permanency plans. She failed to attend the termination hearing. All of this occurred

despite Mother’s prior history with DCS, her purported desire to maintain custody, and

DCS’s explanation of the consequences of her inattention. In contrast, the record casts

6

no doubt on the ability and desire of the potential adoptive parents to provide a stable and

nurturing environment for the child. It instead shows that the foster parents have

continuously cared for Shanya since shortly after the child’s birth and have established a

strong rapport with the child. We accordingly hold that the best interests of the Shanya

support termination of Mother’s parental rights. The decision of the trial court is

affirmed.

V. Conclusion

For the foregoing reasons, we affirm the trial court’s decision to terminate

Mother’s parental rights on the grounds of substantial noncompliance and persistence of

conditions. Costs of this appeal are assessed to the appellant, Sharon T.A., for which

execution may issue if necessary.

_________________________________

DAVID R. FARMER, JUDGE

The record shows that DCS provided Mother with a copy of the Criteria for Termination of Parental 6

Rights and an explanation of its contents. 

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