### IN THE COURT OF APP EALS OF TENNESS EE AT KNOXVILLE A ssi gne d on Br ie fs Ma y 22, 200 4
STATE OF TENNESS EE, DEPARTMENT OF CHI LDREN' S SERVI CES v . K.L.K.
Appeal f romthe Juvenile Court for Ham ilton Coun ty No. 181,005 Suzann e Bailey, Judge

No. E2003-2452-COA- R3-P T Filed July 6, 2004

This appea l by

K.L .K. (“ Mother”) challeng es the Juvenile Court’ s conclusion that there was c lear and convinc in g ev i d en ce t o t er m i n at e M o t h er ’s p ar en t al ri gh t s o n t h re e s t at u t o rygro u n d s , an d fu rt h er c ha lle ng e s th a t th e re wa s c le ar andc on vin c ing e vid e nc e that te rm inatio n o f M oth e r’ s p are nta l r ig hts
wa s in he r d a ug hte r’ s b e st i nte re st. We c on c lud e the re wa s no cle ar a ndc on vin c ing e vid e nc e to terminate Mother ’s par ental rig hts on two of the three g rounds relied upon by the J uvenile Court, but tha t th e r e w a s c l e ar a n d c o n v i n c i n g e v i d e n c e t o s u p p o r t t h e t h i r d g r o u n d

. H o w e v e r , w e a lso
c on c lud e the re wa s no c le ar a nd c on vin c ing e vid e nc e that te rm inatio n of Mo the r’ s pa re ntal ri g hts was in the be st interest of the c hild. The judg ment of the Juvenile Court is, t here fore , reve rsed.

Te nn. R . A pp. P . 3 App e al a s o f Rig ht ; J udgm e nt of t he Juvenile Court Reve rsed; Case Rem anded

D. M I CH A EL S WI NEY , J ., delivere d the opi nion of the court, in which H ER SCH EL P. F RAN KS , P.J ., and C H A RLES D. S US ANO , J R ., J ., joined.

Cara C. Welsh, Chattanoog a, Te nnessee , for the A ppellant K.L .K.

Paul G. Summers, Attorney Gene ral a nd Reporter , and Doug las E ar l Di m o n d, Assistant Attorney Gene ral, Na shville, Tenn es s ee , for the A ppellee State of Tenne ssee, De partment of Children’ s Se rv ic e s.-2- OP IN ION

Bac kgr ound

This liti g ation beg an on October 26, 2000, when the State of Tenne ssee, De partment of Children’s Servic es (“ DCS”) filed a Petition for Temporary

Custodyof L .L .M. (“the c hild”), Mother’s then eig ht y ear old daug hter. The child had bee n living with Mother f or the pa st two y ear s even thoug h the child’s pate rnal g randmother had leg al custody . I n the petition, DCS allege d that the child was the victim of phy sical abuse and possible neg lect by Mother. Ac cording to DCS, t he child h a d b ru is e s o n h e r le g s a n d u p p e r th ig h s , a s w e ll a s a ma rk u n d e r a n e y e

. DCS sought immediate tempora

ry custody becau se it believed the child was subjec t to imm ediate ha rm if she
rema ined with Mother. Te mporary custody was g rante d to DCS and a preliminary hearing was set for Oc tober 31, 2000. Mother reta ined counsel who had the hea ring continued until November 2, at which time Mother w aived he r rig ht to a preliminary hearing. T he R ef

er ee d et ermined that custody of the c hild should remain with DCS.

A Permane ncy

Plan (“the Plan” ) was d ev el o p ed on Nove mber 20, 2000, with the state d g oa l of

e ve ntu a lly

re turnin g cus to dy of

the c hil d to Mo the r. Th e Pla n r e qu ir e d M oth e r t o obtain a par enting assessment and, if nece ssary , attend pare nting classes. Mother also was re quired to unde rg o a psy cholog ical assessment as well as a drug and alc ohol assessment. The Plan noted tha t Mo the r w ou ld be re qu ir e d to de mon str a te the abil ity to u se c on str

uc tiv e dis c ipl ine wi th a

pp ro pr ia te boundarie s with such discipline not rising to the leve l of phy sical or e motional a buse. Mother wa s prohibited from using illega l drug s or alcohol and mi susing prescription medication. Mother w as instructed to pay

child support as re quired by th e S t at e. M o ther sig ned the Plan as w ell as a f our pa g e do c ume nt se tti ng fo rth whe n pare nta l rig hts c a n be te rm inate d invo lun tari ly un de r a pp lic able law. The Plan was appr oved by the Refe ree in Dece mber of 2000.
A status report was filed with the J uvenile C ourt in April of 2001 which show ed that Mother was making a good faith eff ort to comply

with the require ments of the Plan. For example, she had completed parenting and ange r m anag ement classes. Mother underwent a drug and alc ohol assessment and a

drug test which wa s neg at i v e. M o t her w as attending counseling . She also was
a tte nd ing sc he du le d v isi ta tio n w ith he r d a ug hte r andwa s in fo rm ing DC S wh e n s he wo uldbe un able to attend.

I n May

of 2001, a c ase a ssessment was unde rtake n to determine if unsupervised vis itatio n w a s a

pp ro pria te . T he c on c lus ion s in thi s re po rt we re so me wh a t inc on sis te nt wi th the Ap ri l status report a nd indicated that Mother had not c ompleted the par enting assessment or psy cholog ical
a sse ssm e nt c a lle d f

or in the Plan. Whil e Mo the r w a s g oin g to co un se lin g , the re we re no re po rt s in the re cord w hich indicated the focus of the counseling and Mother’s deg ree of success. I t also was noted t hat t he DCS case manag er had failed to eng ag e the child in counseling. D CS also had been reque sted to seek f

lex funds t o assist Mother in pay ing for the pare nting assessment, but the rec ord did not show whether this had be en initiated by DCS. Be cause of these de ficienc ies, the DCS Team Coordinator wa s unable to re commend unsuper vised visitation. A further problem ar ose in J une of-3-

2001 when Mother

and the child’s paternal gra ndmother t ook the child out of Tennessee on two of the wee kend visits. W hen DCS discovere d the chil d h ad b ee n taken out of the state, we ekend visitation was stopped.

DCS eventually

was able to obta in the funding for Mother to underg o a par enting and psy cholog ical asse ssment. The eve ning prior t o t h e schedule d appointment, Mother ca lled and
canc elled. Mother failed to inform DCS that she had ca ncelled the appointment and fa iled to seek
resc heduling . At this point in time, it was noted that Mother was beg inning to show signs of being noncompliant with the require ments of the Plan.

A par enting and personality assessment eventually was undertaken in J uly of 2001. Th e e xami ne r c on c lud e d th a t u nl ess “ the Cou rt ha s e vid e nc e to the c on tr ary , th e re su lts of thi s evaluation indicate no re ason that [ the child] should not be returne d to the mother’s c ustody ” so long
as she complies with any

DCS requireme nts. The examiner re commended a transition plan which included Mother w orking with a child spec ialist to assist Mother in le arning behavior modification te c hn iqu e s. Th e e xami ne r a lso re c omm e nd e d jo int c ou ns e lin g wi th M oth e r a nd the c hil d, a s w e ll
a s a g ra du a te d v isi ta tio n sc he du le , be g inn ing wi th 1 to 2 da y s p e r w e e k, the n p ro g re ssi ng to 3 da y s, etc.

I n Aug ust of 2001, Mother’s attorney was a llowed to withdraw f rom repr esentation. By September of

2001, Mother appa

rently was ba ck on trac k as to completing the re quirements of the Plan. An interim status report filed with the J uvenile Court indicates Mother completed the pare nting c lasses, the a ng er manag ement classes, the drug and alc ohol assessment, and the pa renting or psy cholog ical asse ssment. Mother was attending sc heduled visitation with the child and informe d DC S on tho se oc c a sio ns wh e n s he wa s u na ble to atte nd

. Mo the r wa s e mpl oy e d a ndwa s li vin g in an apa rtment. Althoug h Mother wa s not attending counseling due to a l ac k o f funds, s he
ne ve rthe le ss w a s sh ow ing imp ro ve me nt i n h e r p are nti ng sk ill s.

I n Dec ember

of 2001, the DCS case manag er rec o m m ended increa sed and unsupervised visitation betwee n Mother and her daug hter. At that time Mother was employ ed and maintaining a

residenc e. The DCS c ase manag er noted that Mother had “ completed the te nets of her previous plan, a nd is cooperating with DCS to ge t he r child returne d.” A second Permane ncy Plan was de veloped at that same time. The second Plan likewise ha d the stated g oal of re turning custody of the c hild to Mot her. This Plan re quired Mother to be pre sent for a ll scheduled visits and to be pr e pa re d f or the se vis its

. Mo th e r a lso wa s r e qu ir e d to c on tin ue wi th c ou ns e lin g to h e lp a dd re ss issues of trust and any

problems that may

arise during the reunific ation proce ss. I t also was noted that in-home ser vices would be provided upon reunific ation. This Plan did not state that Mother was require d to pay

child support, but it did i ndicate that issues surrounding the entry of a c hild support order had bee n postponed until J anuary of 2002.
A hearing was held in Dec ember of 2001 to revie w t he st atus of t he need for f oster
car e and Mothe r’s prog re s s

. Subsequently , the Refe ree enter ed an or der a pproving DCS’s stated intent of reuniting Mother and c hild. Accor d i n g to the Refer ee, this wa s appropriate and “ in the-4-

c hil d’ s b e st i nte re st i n th a t th e mothe r h a s su bs ta nti a lly c omp lie d w ith he r p e rm a ne nc y plan a ndis
curr ently participating in counse ling with [the child] and prog ress ha s been r eporte d.”

An i nterim status report from April of 2002 indicated that Mother had c hang ed jobs twice since the last court revie w. Mother also was having difficulty attend i n g t h e counseling
se ssi on s. I t w a s n ote d th a t w hil e Mo the r ne e de d to ac hie ve mor e sta bil ity a ndde mon str a te a n a

bil ity to take ca re of all the re sponsibili ties of being a par ent, the re unification proc ess would continue. That same month, an order of support was entered by the J uvenile Court. Specific ally , Mother wa s order ed to pay

$83 per w eek in c hild support pay ments. A judg ment for r etroa ctive child support also was e ntere d ag ainst Mother in the amount of $3,403. Mother was order ed to pay $41 per w eek toward the arr ear ag e.

To summarize the facts up to this point, by April of 2002, Mother ha d completed the require ments of the initial Plan and was movi ng forwa rd with the re quirements of the second Plan
a ndthe re un if

ic a tio n p ro c e ss. Mo the r’ s v isi ta tio n ha d b e e n in c re a se d, a ndsh e wa s e njo y ing we e kly
un su pe rv ise d v isi ts f

or a s lo ng a s fo ur da y s a t a tim e

. Mo the r’ s pr og re ss wa s a c kn ow le dg e d b y DC S
as we ll as the Refe ree

.

What happened ne x t w as in dispute at trial. Mother’s daug hter wa s stay ing w ith her four day s per wee k and Mother w as supposed to take her daug hter to the foste r par ents on Sunday evening

. Mother testi fied that while ex erc ising visi tation in early J une, she be came “aw ful sick” a nd
was una ble to return he r daught er t o t h e foster pare nts. Mother stated that she c alled and le ft messag es with the DCS c ase manag er and the foster pare nts to explain the sit uation and inform them that sh e wo uldtake he r d a ug hte r t o th e da y c a mp pr og ram the fo llo wi ng mornin g . M oth e r c la ims that the next morning, DCS informed her th at i f s h e d i d not return he r daug hter immediately she would be ar

reste d

. Acc ording to Mother, the next tim e she spoke with the DCS case wor ker, the DCS c a s e w o rk e r w a s “ v e r y ru d e ” a n d to ld M o th e r s h e w a s g o in g to s to p h e r v is it a ti o n with the child. Mother cla ims the DCS case worke r said she “was done try ing” to help M other, that DCS was g oin g to t e rm inate he r p are nta l r ig hts , a nd the c a se “ wa s o ve r. ” Mo the r s ta te d s he fe lt l ike sh e jus t “couldn’ t win.” Mother wa s devastate d beca use she had “wor

ked so hard” and her

daug hter “ was almost home.”

Mother testified that a fter the above c onversation with th eD CS c a s ew o r ker, she went

“ of f the de e p e nd ” a ndbe g a n d ri nking a ndus ing drug s. Th is s e t- ba c k w a s si g nif ic a nt, e ve ntu a lly culminating in Mother’s arrest i n Aug ust for switching tags on a ca r, having no proof of

insurance , and allowing som eone to drive her c ar w hile under the influence . Mother wa s incarc erated for 22 day s. Mother eve ntually enter ed a t re at m en t fac ilityin ear ly October . Whil e in the tre atment prog ram, Mother

wrote he r daug hter a

letter. In this letter , she stated that she wa nted to do better, but had bee n unable to quit drinking and using dr ug s. Mother also we nt on to ex plain in the letter that she had e ntere d a tre atment prog ram to tea ch her not to drink and use dr

ug s, which would make her a better “ momma” and a

better “ person.” Mother ex presse d her continuing love to her daug hter and her desire to be a good mot her. This letter was mailed to the DCS case w orker to be forw arde d to the child. Howeve r, the DCS case manag er ne ver g ave the letter to the c hild.W e wi l l l i mi t o ur d i s cus s i on o f t r i al t es t i mo ny t o t he ext ent i t s uppl ement s or expl ai ns f act s al r eady di s cus s ed 1

o r p rovides ad d i t i o nal i nfo rma t i o n. W e wi l l not d i scus s t ri al t est i m o ny t o t he ext ent s uch t est i m o ny s i m p l y res t at es t he

c h ro n o lo g y o f ev e n ts a lre a d y se t f o rth in the O p inio n

. -5- On J anu ary 28 , 2 00 3, DC S f ile d a Pe tit ion to T e rm inate Pare nta l Rig hts . D CS
a lle g e d, a mon g oth e r thin g s, that: 1 ) the c hil d h a d b e e n r e mov e d f rom th e ho me fo r at le a st s ix
mon ths a ndthe c on dit ion s w hic h le d to he r re mov a l per sis te d; 2) the re wa s li ttl e lik e lih oo d th a t th e se conditions would be reme died at an early date which would permit a saf e re turn of the c hild to the Mo the r; 3) Mo the r w a s u na ble to p ro vid e a

su ita bleho me fo r the c hil d an d ha s mad e no re a so na ble
e ff orts t o p ro vid e a

su ita ble ho me ; a nd4) c on tin uatio n of the pa re nt/ c hil d re la tio ns hip wo uldg re a tly dim ini sh the c hil d’ s c ha nc e s of e arl y int e g ratio n int o a sa fe , sta ble a ndpe rm a ne nt h ome . D CS a lso alleg ed ther e had not be en substantial compliance by M o t h er w ith the Plan, and that Mother had willfullyabandone d the child by failin g t o v i s i t o r eng ag ing in token visitation with the child for
mor e than f

ou r c on se c uti ve mon ths pr e c e din g the fi ling o f the pe tit ion . F ina lly , D CS a lle g e d it
wo uld be in the be st i nte re sts of the c hil d f

or Mo the r’ s p are nta l r ig hts to b e te rm inate d. At the tim e the petition was filed, DCS did not know the wher eabouts of Mother. On F ebrua ry 28, 2003, Mother
was a ppointed counsel a fter sig ning an Affida vit of I ndige ncy

which indicate d she wa s unemploy ed at that time.

The trial wa s on J uly 18, 2003. The first witness was J ennife r Collins (“Colli ns”), 1 who is employ ed in the child support division of the Hamilton Count y J uvenile Court Clerk’s Of fice

. Colli ns testified that a c hild support order was e ntere d on April 10, 2002, requiring Mothe r to pay child support of $83 per

wee k and an a dditional $41 per we ek on arr ear ag es. Since the orde r wa s signe d, Mother had not paid any child support. The re cords r efle ct that Mother wa s not present a t this earlier

hearing, a lthough she had been s erve d with documents informing her tha t a hea ring was g oin g to b e he ld r e g ard ing c hil d s up po rt pa y me nts

. The ne x t witness was Mother, who by then was living in Trenton, Ge org ia. Mother had lived ther e for

approximately

five months. Mother ac knowledg ed that she has h ad seve ral residenc es over

the past couple of y ear s. Mother cur rently lives with her former husband, A ndy Crisp (“Mr. Crisp”) . Mother and Mr . Cri s p “g ot back tog ether ” rig ht before Mother wa s admitted to the treatment center . Mr. Crisp drove Mother to that fac ilitylocated in North Carolina.

Mo the r t e sti fi e d th a t de sp ite the sig nif ic a nt s e t- ba c k s he e xpe ri e nc ed beg inn ing in J une of 2002, she was c urre ntly in a position to be able to provide f or her daug hter. Mother and Mr

. Cr isp we re bo th e mpl oy e d. Mo the r a nd Mr

. Cr isp liv e in a tw o s tory ho us e , w ith thr e e be dr oo ms, two full baths, a living r oom, dining room, and a swimming pond with a gazebo. There is a bedroom
rea dy for he r daug hter. Mother stated that while in the tre atment ce nter, she ha d to learn a new lifesty le. She attends Nar cotics Anony mous meeting s twice a wee k and re ads fr om her Alc oholics Anony mous book every day . Mother testified that sh e also has a job, tends to the house, and g oes to c hurch. Mother denied taking any drug s from the time DCS i nitially took custody

of her daug hter up until the tim e whe n every thing “ fell apa rt” in June of 2002. By

the time of trial, Mother ha d been-6-

clea n and sober for a

pproxi mately

nine months. W hen aske d by the State’s attorne y

if Mother be lie ve d h e r d a ug hte r s ho uldbe re turne d h ome , th e fo llo wi ng dis c us sio n to ok pla c e :

A

. Is u r e a m. I a m. I a m te ll in g y o u th a t r ig h t n o w th a t she should come hom e. She should have a lrea dy been home , sir. ... I have c ompleted two of y our permanenc y plans.
Q. Al l r ig ht. Yo u are te lli ng theCou rt that y ou are in a

c omp le te and full position to be a full-time par ent to y our child?

A. Full-time. Take her to sc hool, pic k her up, every thing. Buy her sc hool clothes, fee d her, e verything.
Q. And some l ittle stress i s not g oing to send y ou back ove r the
e d g e t o d ru g s a n d a l c o h o l ? ...

A. No, not if I

don’t let it.

Mo the r a dmi tte d s he ha s p a id a bs olu te ly no c hil d sup po rt sin c e the c hil d ca me int o cust ody of DCS. When asked why she did not pay

any child support, Mother re sponded, “I don’t k n o w

. ” M o t h e r

w a s e m p l o ye d a tv ar i o u s d i f f e r e n tj o b s w h i l e h e r

d a u g h t e r w a s i n D C S c u s t o d y. Al tho ug h M oth e r d id n ot m ake muc h mo ne y a t th e se va

ri ou s jo bs , s he a dmi tte d s he c ou ld h a ve pa id at least something . Acc ording to Mother, she did re ceive a copy of the notice of the c hild support hearing, but she was unable to attend the hearing and di d not rec eive the actual or der r equiring her to p a y c hil d s up po rt

. Mo the r la te r te sti fi e d that ha d sh e re c e ive d th e or de r, sh e wo uldha ve pa id c hil d support. When the order was enter ed in April of 2002, Mother was supposed t o have c ustody of her daug hter re turned to her

in the very near future and she would have wanted to do “ the rig ht thing.”

Mother hire d an attorne y

when he r daug hter wa s taken into state custody . Howeve r, Mother could not af

ford to pay

the attorne y , who s ubsequently withdrew f rom repr esenta tion after only a fe w months. Mother rec alls the Refe ree perm i t t i n g h er attorney to withdraw fr om repr esentation. Mother testified s he never was asked by the Refe ree , the J uvenile Court J udg e, or a n yo n e e l s e w h e t h e r s h e s t i l l n e e d e d r e p r e s e n t a t i o n o r w a s g o i n g t o tr y t o o b t a i n a n o t h e r a t t o r n e y. Mother testified a s fo l l o ws wi t h reg ard to a conver sation betwee n her a nd the State’s attorne y fo l l o wi n g t h e D ec em b er2 0 0 1 h ea ri n g:

Q. Do y ou reme mber the c onversation we had outside the
c o u r tr o o m f

o r ab o u t t w e n ty

mi n u te s a f

te r th a t [ h e ar in g ]?

A. Yo u c a n r e fr e sh my me mory bu t, n o, I do no t.
Q. Do y ou reme mber my asking the J udg e to appoint y ou counsel d u ri n g t h at h ea ri n g?-7- A. No , I

do no t.
Q. Do y ou re me mbe r the Judge s ta tin g , e ve n th ou g h it ’s no t in the orde r, that bec ause y ou wer e about to ge t y our child bac k, y ou didn’t think it was ne cessa ry at that time?

A Yes, a nd I

believed him.

Mother has not visited with her da ug hter since J une of 2002 w hen she c laims DCS s topped allowing her a ny visitation. Mot her was not r epre sented by an attorney when all visitation with her daug hter alleg edly was stopped in June of 2002.

The ne x t witness w a s L

is a N e w c o mb e( “ Newc ombe”) , the DCS case w orker assig ned to this case. Ne wcombe took over r esponsibilityfor this ca se in April of 2002. Ne wcombe te stified that when she took over this case , Mother was doing well. Mother had e x tended visits, picked up her daug hter e very

day afte r school, and e ven we nt on a fie l d trip with her daug hter. Mother had completed a ll t h e cl as s es and various assessments ca lled for in the Plans. The dr ug and alc ohol assessment complete d in 2001 indicated that no tre atment was ne eded.

With re g ardto the inc ide nt w he re Mo the r d id n ot r e turn th e c hil d to the fo ste r p are nts on Sunday

evening , Newc ombe testified that she r ece ived a c all the f o llowing Monda y

from the foster pa rents saying the child had not bee n returne d. When Newc ombe was una ble t o g et in touch with Mother, she c alled the Court to asce rtain what to do. Newc ombe was able to conta ct Mother around 9:30 a .m., and told her to immediately take the child to day car e and then come to he r (i.e. Newc ombe’s) of

fice . Mother took the child to the day car e, but did not go to Ne wcombe’ s office

. Newc ombe testified that she trie d for severa l day s to contact Mother and, whe n she wa s unsucce ssful, she sent Mother a certified letter to her last known address. Acc ording to Newc ombe, Mother ca lled her a co u p l e o f d ay s later a nd inquired “w hen she w as g oing to se e [her daug hter] ag ain and I

told her that the ne x t visit had to be supe rvised so we could discuss what ha ppened.” Mother admitted to N ew co m b e that she had taken her daug hter to Ge org ia ag ain. New combe testified that she onc e ag ain aske d Mothe r t o co m e t o t he DCS office to discuss the situation. Mother cla imed she did not have a car or any one to take he r. Newc ombe did not hear f rom Mother ag ain until Febr

uary of 2003, at whic h time Mother stated she w ante d t o v i s i t h er daug hter. Newc ombe informed he r that a pe tition t o terminate her parental rights had been filed and visitation
was no lon g e r a llo we d. Ne wc omb e is n ot a wa re of Cr isp ’s ba c kg ro un d, a ndthe ho us e /ho me environment whe re Mother and Crisp are now living ha s not been investig ated. Ne wcombe te stified that the child nee ds stabilityand permanenc y , and she did not see that happening with Mother.

On c ro ss- e xami natio n, Ne wc omb e te sti fi e d th a t it ha d be e n h e r i nte nt t o d ive st D CS of custo d y o f t h e chil d at a he aring that was sche duled in J uly 25, 2002. Approxim ately May 3, 2002, the child’s foster

pare nt beca me ang ry about t he re unification proc ess bec ause thefoster pa rent did not believe it was the a ppropriate time for the c hild to be returned to Mot her. The foster pa rent ref used to continue be ing a foster pa rent to the c hild, thus requiring DCS t o s ec u re ne w fosterA l t ho ugh co nt rary t o t he case notes , N ewco m b e t est i f i ed t hat M o t her’ s vi si t at i o n had not b een sus p end ed , but 2

ra the r h e r v isits we re to b e su p e rv ise d . N e w c o m b e te stif ie d tha t M o the r’s v isitatio n w a s n o t ac tua lly “su sp e n d e d ” un til J u ly afte r M o the r h a d c e a se d c o n ta c t with D C S a n d the c h ild

. -8- pare nts. A second pr oblem arose in mid-Ma y of 2002 when, a ppare ntly due to Mother’ s inattention, the child turned in a school projec t late. DCS had discussed the projec t with Mother and we nt over wha t ne e de d to be do ne so the pr oje c t w ou ld b e c omp le te d in a tim e ly ma nn e r. Ac c or din g to Ne wc omb e ’s no te s, “ thi s la c k of e ff ort wa s no t g oin g to be a g oo d ind ic a tio n of [Mothe r’ s] a bil ity to help [t he child] with her work in the future. [Mot her] was told that this wa s her last chanc e and if she did not do every thing she was supposed to do in the time be tween now and court, the situation would turn toward te rmination.” Thre e day s later the sc hool project wa s turned in, albeit late. T he child’s teac her the n asked Mother to help transport some of

the school childre n to a skating party the following Thursday , and Mother a g ree d to do so.

The incide nt where Mother re turned the c hild a d ay late occ urre d on J une 3, 2002. The DCS case notes discussing what happene d on J une 3 confirm that Mother did call the foster rd pare nts and left a me ssag e informing them that she would take the c hild to day camp the f

ollowing day . Mother did tell Newc ombe that the re ason she did not return the child on time was bec ause she was sick. Ac cording to the DCS case notes, N ewc ombe then told Moth er that her visits were “suspende d.” There afte r, Mother a lso informed Newcombe that she was in the process of moving

2 to Georg ia. Newc ombe informed Mother that the ne w home would have to be investig ated be fore the c h il d c o u ld b e ta

k e n th e r e

. T h e D CS n o te s a ls o s tate th e f o ll o w in g : “ St e v e J ones ca lled reg arding [t he child] an d [ M o ther] not bringing [t he child] back to the foste r home on time. Mr. J ones stated that termination would be considere d seriously afte r t h i s matter.” Newc ombe
a c kn ow le dg e d at tri a l tha t, pr ior to the June 3 inc ide nt, the re ha d b e e n “ no ma jor pr ob le ms” wi th rd Mother re turn i n g her c hild to the foster par ents on time. On J une 13 , Newc ombe spoke to the th child’s counse lor who informed Newc ombe that termination of Mother’s pare ntal rig hts would harm the child “in a la

rg e way .” When Mother subseque ntly ce ased c ontact with DCS, the counselor indicated at that time that it was best to move forwa rd with the termination proc ess. On September

4, 2003, the J uvenile Court enter ed an O rder terminating Mot h er’s pare ntal rig hts. The J uvenile Court found:

1. Th e c hil d h a s b e e n in D CS c us tod y fo r at le a st s ix mon ths ; DC S ha s ma de re a so na ble effo rts to a ssi st M oth e r i n establishing a

suitable home; that Mother has not made a rea sonable e ffort to do so; and that Mother ha s demonstrated
a la c k o f c on c e rn to s uc h a degre e that it

app e are d u nli ke ly she would be able to pr ovide a suitable home at an ea rly date. T h e J u v enil e Court did note that prior to June of 2002, Mo the r h a d made a re a so na ble e ff ort, b ut c e a se d a ll e ff

orts afte r that date ;-9- 2. There was little likelihood that the conditions preventing
re turn o f the c hil d to Mo the r w ou ld b e re me die d a t a n e arl y date;

3. Con tin uatio n o f the pa re nt/ c hil d r e la tio ns hip g re a tly d i minishes the child’s chanc es of e arly integ ration into a stable and suitable home ;

4

. Mothe r

f a il e d to c o mp ly

in a s u b s tan ti a l m a n n e r

w ith the
re sp on sib ili tie s o f the fo ste r ca re Pla n by c e a sin g c on ta c t w ith DC S sin c e Ju ne o f 2 00 2, a ndMo the r h a s f a ile d to ma int a in suitable housing f

or her self and the child;

5. Mother willfully

abandoned t h e child for more than f our consec utive months prece ding the filing of the petition;

6. Mo the r f

a ile d to make a ny

a dju stm e nt o f c ir c umstan ces to
make it s a fe a ndin the c hil d’ s b e st i nte re sts to b e re turne d to her c are ; and

7

. I t w a s in th e b e s t i n te r e s t o f th e c h il d f

o r M o th e r ’ s p ar e ntal rig hts to be terminated.

Mother appea ls c laiming there was no c lear and convinc ing e vidence to terminate he r pare ntal rig hts. Mother also claims t here was no clea r and convincing evidenc e to support a finding that termination of Mother’ s pare ntal rig hts wa s in the best interest of the child. Finally , Mother claims she wa s denied a dequate counsel pursua nt to Tenn. R. J uv. P. 39 and Rule 13 of the Tenne ssee Supre me Court.

Discussion

The fa ctual finding s of the Tria l Court are a ccor ded a pr esumption of corr ectne ss, and we will not overturn those fac tual finding s unless the evidenc e pre ponderates aga inst them. See Te nn . R. Ap p. P. 1 3( d) ; Bogan v. Bogan , 60 S.W .3d 721, 727 (Tenn. 2001). Wit h respe ct to leg al issues, our re view is conduc ted “unde r a pur e de novo standard of re view, ac cording no defe renc e to the conclusions of law ma de by the lower courts.” So uth e rn Con str uc tor s, In c . v . Lo ud

on Cou nty Bd. Of Educ. , 58 S.W .3d 706, 710 (T en n

. 2 0 0 1 ). As discussed by this Court i n In re Adoption of T.A.M. , No. M2003-02247-COA- R3-CV , 2004 Tenn. App. L EXI S 317 (Tenn. Ct. App. May 12, 2004):

Be cause of the heig htened burden of proof require d by Tenn. C o d e A n n

. § 3 6 -1 -1 1 3 (c ), we m u s tad ap tT en n

. R

. Ap p

. P

. 1 3 (d )'s
c us tom ary

sta nd ardof

re vie w f or c a se s o f this so rt. Firs t, we mus tW h e n this O p inio n w a s re le a se d , the tim e in wh ic h to fi le a R u le 1 1 a p p lica tio n fo r p e rm issio n to a p p e a l t o 3

t he T enness ee S up rem e C o urt i n In r e A d o p t i o n o f T

. A

. M. h ad n ot y et e x pi r ed.
-10- revie w the trial court' s specific finding s of fa ct de novo in ac corda nce wi th T e nn . R. A pp . P. 13 (d ). Th us , e a c h o f the tr ia l c ou rt ' s sp e c if ic fac tual finding s will be presumed to be corr ect unless the e vidence preponde rate s otherwise. Sec ond, we must determine whether the fac ts , e ith e r

a s f o u n d b y th e tria l c o u r t o r

a s s u p p o r te d b y

the preponde ranc e of the evidenc e, cle arly and convinc ingly

establish the g rounds for terminating the biologica l pare nt's pa renta l rig hts. Jones
v . G ar re tt , 92 S.W.3 d at 83 8; In re Vale ntine , 7 9 S. W.3 d at 54 6; Ray v. Ray , 83 S.W.3 d at 7 33 ; I n r e L

. S

. W. , 2001 Tenn. App. LEXI S 659, No . M 20 00 -0 19 35 -C OA -R 3- JV, 2 00 1 WL 10 13 07 9, a t *5 (T e nn . Ct

. App. Sept. 6, 2001), perm. app. de nied (Tenn. D ec. 27, 2001)

. In re Adoption of T.A.M., 2004 Tenn. App. L EXI S 317, at ** 8-9 (footnote omitted). 3

I n De p't of Chi ldre n's Se rv s. v . D .G .S .L. , this Court discussed the re levant burde n of proof in ca ses involving termination of pare ntal rig hts. Specifically , we obse rved:

I t is w e ll e sta

bli sh e d th a t “ pa

re nts ha ve a

fu nd a me nta l r ig ht t o the ca re, c ustody , and contr ol of their childre n. " In re Drinnon , 776 S

. W

. 2 d 9 6 , 9 7 (T en n

. C t

. Ap p

. 1 9 8 8 ) ( ci t i n g Sta nle y v . I lli no is , 405 U. S. 64 5, 92 S. Ct. 12 08 , 31 L

. Ed

. 2d 55 1 (1 97 2) ). " Ho we ve r, thi s ri g ht i s n ot a

bs olu te a nd pa

re nta l r ig hts ma y

be te rm inate d if

the re is clea r and convincing evidenc e justify ing suc h termination under the app li cabl e st atu te. " Id. (c i t i n g Santosky v . Kramer , 455 U.S. 745, 102 S. Ct . 1388, 71 L . Ed. 2d 599 (1982))

. Termination of parenta l or g uardia nship rights must be base d upon a finding by

the court that: (1) the gro u n d s for termination of pare ntal or g uardia nship rights ha ve bee n establish ed by clea r and
co n v i n ci n g ev i d en ce ; an d (2 ) t er m i n at i o n o f t h e p ar en t 's o r gu ar d i an 's rig hts is in t he best intere sts of the chi l d

. T enn. Code Ann. § 36-1-113( c). B efor e a pa rent' s rig hts can be terminated, it must be sh ow n th a t th e pa

re nt i s u nfi t or su bs ta nti a l ha rm to the c hil d w ill result i f parental rights are not terminated. In re Swanson , 2 S.W .3d 18 0, 18 8 ( Te nn . 1 99 9) ; In re M. W .A ., J r. , 980 S.W .2d 620, 622 (T e nn

. Ct. Ap p. 19 98 ). Simi larl y , b e fo re the c ou rt ma y inq uir e a s to whether termination of par ental rig hts is in t he best interests of the child, the court must fir st de termine that the g rounds for te rmination have be en esta

blished by

clea r and convincing evidenc e. Tenn. Code Ann. § 36-1-113( c). This Court di scussed the " clea r and c onvincing-11- evidenc e" standard in O 'D a n ie l v

. M e s s ier , 9 0 5 S.W .2d 182 (Tenn. Ct. Ap p. 19 95 ), a s f

oll ow s:
The "cle ar and convincing evidenc e" standard defie s prec ise definition. Maj ors v . S mi th , 776 S.W. 2d53 8, 54 0 ( Te nn . Ct . A pp

. 19 89 ). While it i s more e x acting than the pre pondera nce of the e vidence standard, Santosky v . Kramer , 4 55 U. S. at 76 6, 10 2 S. Ct. a t 14 01 ; Re nte nb ac h E ng 'g Co . v . G e ne ra l R e alt y Ltd. , 7 07 S.W. 2d52 4, 52 7 ( Te nn . Ct . A pp . 1 98 5), i t does not requir e such c erta inty as the b ey o nd a
rea sonable doubt standar d. B r a n do n v
. W

r ight , 838 S.W. 2d53 2, 53 6 ( Te nn . Ct . A pp . 1 99 2) ; S t a te v. Grove s , 735 S.W .2d 843, 846 (Tenn. Crim

. Ap p. 1987).

Clear a nd convincing evidenc e eliminates a ny se r io u s o r s u b s tan ti a l d o u b t conce rning the
corr ectne ss of the conc lusions to b e d ra wn from the evidenc e. See H

odges v. S

. C. Toof

& Co. , 833 S.W .2d 896, 901 n. 3 (Tenn. 1992) . I t should produce in the fac t -f

i nder' s mind a firm belief or conviction with r eg ard to the truth of the a lleg ations sought to be established. In re Estate of Armstrong , 859 S.W .2d 3 2 3 , 3 2 8 ( T e n n

. C t

. A p p

. 1 99 3) ; Brandon v. W right , 83 8 S. W.2 d at 53 6; W

iltcher v. Bradley , 708 S.W .2d 407, 411 (Tenn. Ct. App. 1985)...

De p't o f Ch ild re n's S e rv s. v . D .G .S .L. , No

. E 2 0 0 1

- 0 0 7 4 2-COA-R3-JV, 2001 Tenn. App. L EXI S 941, at **16-18 (T enn. Ct. App. Dec . 28, 2001), no appl. perm. appeal filed.

Termination of pa

renta l rig hts may

be base d upon a number

of statutory g rounds. As rele vant to this appeal, the statutory provisions provide that par ental rig hts can be terminated f or the fo llo wi ng re a so ns :

(1) Abandonment by

the par ent o r gu ardian, as def ined in § 36-1- 102, has occ urre d;
(2) The re has been substantial nonc ompliance by the par ent or g uardia n with the statement of responsibilities in a permanenc y plan or a pla n of ca

re pur suant to the provisions of title 37, chapter

2, part 4;-12- (3)( A ) T h e c h il d h a s b e e n r e mo v e d f r o m th e h o me o f th e p ar ent or g uardia n by

order of a c ourt for a

period of six (6) months and:
(i) The conditions which led to the child' s removal or other
c on dit ion s whi c h in all re a so na ble pr ob abil ity wo uld c a us e the c hil d to be subjecte d t o fu rt her a buse or ne g lect and w hich, there fore , preve nt the child' s s afe return to the c are of the pa rent(s) or g ua rd ia n( s) , s til l pe rs ist ; (i i ) T here is lit tle likelihood that these conditions will be
re me die d at a n e arl y

date so that th e chi ld can be saf e ly re turne d to the par ent(s) or

g uardia n(s) in the ne ar f

uture; and
(i ii ) T h e c o n t i n u a t i o n o f t h e p ar e n to r

g u ar d i a n a n d c hil d relationship gre atl y

d iminis hes the c hild's c hance s of ea rly integ ration into a safe , stable and pe rmane nt home.
Tenn. Code Ann. §§ 36- 1-113(g )(1) throug h (g )(3) (Supp. 2003). Tenn. Code A nn. § 36-1-102 (1 )( A) (i ) d e fi ne s “ aba nd on me nt” a s f oll ow s:

For a period of four ( 4) conse cutive months immediately prec eding the fi lin g of

a pr oc e e din g or

ple a din g to t e rm inate the pa re nta l r ig hts of the pa rent(s) or g uardia n(s) of the child who is the subject of the p e ti ti o n f o r te r mi n a ti o n o f p ar e n ta l r ig h ts o r a d o p ti o n , tha t the pare nt(s) or g uardia n(s) e ither have wi l lfully failed to visit or have wi llf ull y faile d to supp ort or h a ve wi llf ull y faile d to make re a so na

ble pay ments toward the support of the child....

I n the pre sent ca se, the Juvenile Court found there w as cle ar a nd convincing evidenc e that the statutory

g rounds for te rmination in Tenn. C ode Ann. §§ 36-1-113( g )(1) throug h (g )(3) had been me t. Clear and convincing evidenc e supporting any single g round will support a termination order

. See I

n re Valentine , 79 S.W .3d 539, 546 (Tenn. 2002)

. Al tho ug h th e Juve nil e Cou rt didno t st a te in it s fi nal jud g me nt the e xac t r e a so n it fo un d M oth e r h a d a

ba nd on e d th e c hil d, bas ed on c omm e nts ma de by the Juve nil e Cou rt

in announcing its decision after closing arg ument was co m p leted, it appea rs that the Juvenile Court ba se d thi s de te rm inatio n on Mo the r’ s failu re to pa y a ny c hil d s up po rt . In th e Sta te ’s brie f o n a pp e a l, its arg ument is li m i t ed t o wh et her Mother willfullyfailed to support he r daug hter for the re levant four month period. Accor dingly , we c onclude that the Juvenile Court determined Mothe r had abandone d the child by

willfullyfailing to support her.

The fa cts are undisputed that the child support order was entered in April of 2002 and Mother has pa id no child support since that time. Mother claims she di d not rec eive a copy of the-13-

order , althoug h she did r ece ive a copy of the notice setting the matter f or hea ring . Thus, at the very le a st, Mo the r kne w a

he ari ng re g ard ing the e ntry of a c hil d s up po rt

ord er was imm ine nt. Ev e n if Mother did not rec eive the actua l or der, we believe she was responsible for asce rtaining whether

and when suc h an orde r wa s entere d.

The pe tition t o termin ate Mother’s par ental rig hts was filed on January 28, 2003. T h u s , a s c o rr e c tl y p o in te d o u t b y th e St a te in it s b r ie f, th e r e le v a n t s tatu to r y time pe riod for
asce rtaining whether

Mother abandoned her

daug hter is from September 28, 2002, throug h J anuary 27, 2003. I t is i m p o rt an t to note that in making this ana ly sis, “only a par ent’s conduc t in the four months im mediately

prec eding the filing of a petition then befor e the court may be used as g rounds to terminate pa

renta l righ t s ” u n d er this statutory section. See I

n re D.L.B. , 118 S.W .3d 360, 366 (Tenn. 2003) . App ro x i m at el y two wee ks into the releva nt four month period, Mother enter ed a treatment fac i litylocated in North Carolina. Althoug h the re cord is uncle ar how long Mothe r rema ined at the treatment f acility , based on the testimony of the child’s m at er n al g randmother , Mother w as at this facility for a lmost t hree months. At trial, the State introduced no proof that Mother wa s working or wa s able to work during the time she was at the trea tment fac ility

.

Our Te nnessee Supreme Court had he l d t h at an “element of intent must also be applied to the def

inition of abandonment....” In re D.L.B. , 118 S.W .3d 360, 367 (Tenn. 2003) (citing In re Swanson , 2 S.W. 3d 18 0, 18 8 (T e nn

. 19 99 ))

. Re ly ing on the int e nt re qu ir e me nt, thi s Co urt he ld that abandonme nt was not the prope r basis to terminate pa renta l rig hts when the pa rent wa s incar cer ated during the four month rele vant period. Specifically , in In re T.L.P. , No. W1999-01940- COA-R3-CV, 2001 Tenn. A pp. LEXI S 638 (Tenn. Ct. App. Aug . 22, 2 0 01), appl. perm. appeal denied J an. 14, 2002 , w e state d a s f oll ow s: The pe tition for termination of par ental rights was filed on August 26, 1998. Ms. Hender son was inca rce rate d from June 2, 1997 until May 19, 1999. Be cause Ms. H ender son was inca rce rate d during the four months im mediately

prec eding the filing of t he petiti on, we f ind the element of

in t en t lacking in Ms. Hender son' s failure to visit and/or support the childre n. Absent intent, we c ann o t uphold the te rmination of Ms. Hen d er s on' s pare ntal rig hts on the g round of a bandonment under the standard a

rticulated by

the Swanson court. Acc ording ly , we find that the t rial court err ed by terminating Ms. Hender son' s pare ntal ri g hts on the g ro un d o f a

ba nd on me nt.

In re T.L.P. , 2001 Tenn. App. L EXI S 638, at **12, 13.

I n the pre sent ca se, there i s n o p roof at all that Mother ac tually was wor king or
c apa ble of wo rking wh ile sh e wa s in the tr e a tme nt f a c ili ty , a ndthe reis n o pro of that sh e oth e rw ise had the resour ces with w hich to pay the order ed child support. We a cknowledg e that Mother wa s in the tr e a tm e n t f

a c il it y a s a r e s u lt o f h e r o w n v o lu n ta r y d ru g a n d a lc o h o l u s e

. A t th e s a me time, howeve r, public policy certainly is to encour ag e par ents with drug and/or a lcohol problems to seek-14-

nece ssary treatment or otherwise take action to addre ss that situation. W e do not intend to implythat
a pa re nt’ s c hil d s up po rt

ob lig a tio n is a uto ma tic a lly su sp e nd e d s imp ly becau se he o r s he e nte rs a treatment prog ram to addr ess a drug or alc ohol problem. Howe ver, a bsent proof tha t the pare nt
e ith e r w a s w or

kin g , w a s c apa

ble of wo rking , o r o the rw ise ha d r e so ur c e s to pa y c hil d s up po rt

wh ile in the tr e a tme nt p ro g ram, w e do no t bel ie ve the ne c e ssa ry int e nt not to pa y c hil d sup po rt is p re se nt. Since this proof wa s lacking altog ether in this case, we conclude that the J uvenile Court er red w hen it c on c lud e d th e e vid e nc e wa s c le ar andc on vin c ing that Mo the r h a d a ba nd on e d th e c hil d b e c a us e she willfully

failed to pa y

child support for the four month pe riod immediately prec eding the filing of the pe tition.

I n its final judgment, the Juvenile Court indicated that termination of Mother’s pare ntal rig hts also was prope r on two other grounds, those be ing the g rounds set forth in Tenn. Code Ann. § 36-1-113( g )(2) and (g )(3) , su pr a
. There appea

rs t o be some disag ree ment betwee n the parties
a s to wh ic h o f the se tw o g ro un ds a c tua lly wa s re lie d up on by the Juve nil e Cou rt wh e n d isc us sin g its finding s of fa ct. Mother claims the J uvenile Court he ld that he r pare ntal rig hts should be te rminated for substantial noncomplianc e with the P lan pursuant to § 36-1-113( g )(2)

. On t he other hand, the State arg ues that the Juvenile Court concluded termination of Mother’s pa renta l rights wa s proper pu rs ua nt t o § 36 -1 -1 13 (g )( 3) . Wh e n d isc us sin g its fa c tua l f ind ing s, the Juve nil e Co urt p a id particula r attention to what it determined was Mother’s curr ent i nability to take care of her daug hter. The Juvenile Court als o noted that while Mother ha d at one time substantially complied with the terms of the Plans, that all fe ll apart a fter June of 2002.

Th e re c or d s ho ws it i s tr ue that prior

to Jun e of

20 02 , M oth e r h a d s ub sta nti a lly complied with the Plans. Although the fac ts are some what in dispute reg arding exactly what ha pp e ne d a ndwh a t w a s said a ft e r the June 3 inc ide nt wh e n Moth e r wa s late re turnin g the c hil d to rd the foster pare nts, the proof is nonethele ss clear that Mother enc ountere d a s i gn i fi cant setback. When asce rtaining whether there was c lear and convinc ing e vidence to terminate Mother ’s par ental rig ht for either

or both of the g rounds containe d in §§ 36-1-113( g )(2) and (g )(3) , we a re not limited to t he fo u r m o n t h p e r i o d i m m e d i a t e l y p r e c e d i n g t h e f i l i n g o f t h e p e t i t i o n , a s i s t h e c a se wi th abandonme nt. By

the time of trial, Mother ha d been c lean a nd sober fo r n i n e m o n t h s . She had established a r esidenc e and w as working

. Unfortunately , as a home study had not bee n undertaken, we do not know whe ther Mother ’s residenc e was suitable for the child. The re cord a lso revea ls very littl e about Crisp and nothing about whether hi s prese nce in the hom e would aff ect its suitabilit y

for the better or for the worse

. After revie wing the re cord a s a whole, w e believe ther e is clea r and c onvincing
e vid e nc e that c e rt a in “ oth e r c on dit ion s” e xiste d a t th e tim e of tr ia l w hic h p re ve nte d th e Juve nil e Cou rt fr om b e ing able to co nc lud e that Moth e r wa s in a po sit ion a t th a t ti me to f

ull y a ndc omp e te ntl y car e for the child, an d t h at t h ere was a post-J une 2002 failure to substantially comply with the require ments of the sec ond Plan as a whole . Our c oncern surrounds the Juvenile Court’s appar ent
c on c lus ion that th e re wa s li ttl e lik e lih oo d th a t Mo the r h a d r e me die d o r c ould rem edy the se conditions in the near f

uture, whic h is a requirement to terminate parenta l rig hts pursuant to§ 36-1- 113(g )(3) . I f Mother’ s situation had been frozen in time and her overa ll situation at the time of trial-15-

wa s th e sa me a s it ha d be e n whe n the pe tit ion wa s f ile d, we wo uldbe mor e inc lin e d to a g re e wi th the J u v enile Court’s conc lusion. However , this would require tha t we complete ly subjugate the substantial prog ress Mother made prior to J une 2002 and the p ro g ress she ma de af ter e ntering tr e a tme nt a

fe w m on ths la te r o n O c tob e r 8 to the ne g a tiv e imp a c t of wh a t ha pp e ne d d uring he r s e t- th back. T his we ar e not pre pare d to do. There fore , while we aff irm the J uvenile Court’s conc lusion that g rounds exist ed pursua nt to § 36-1-113(g )(2) for f ailure to substantially comply with the Plan,
we r ever se the Juvenile Court’s determination that g rounds exist ed pursua nt to § 36-1-113(g )(3)

.

Ha vin g a f

f i r m e d t h e Ju v e n i l e C o u r t ’ s c o n c l u s i o n t h a tg r o u n d s e xi s t e d p u r s u a n tto § 3 6- 1- 11 3( g )( 2) , w e no w turn to wh e the r t e rm inatio n of M oth e r’ s p are nta l r ig hts wa s in the be st interest of the child. Tenn. Code Ann. § 36-1-113( i) describes the s tandar d for determining whether te rm inatio n is in the be st i nte re sts of the c hil d in su c h c a se s: (i ) In d e te rm in in g whethe r t e rm inatio n o f p are nta l or g ua rd ia ns hip rig hts is in t he best interest of the child pursuant to this part, the c ourt
s h al l co n s i d er , b u ti s n o tl i m i t ed t o , t h e f o l l o wi n g: (1) Whether

the par ent or g uardia n has made such an adjustment of circ umstance, c onduct, or c onditions as t o make it safe and in the child' s best interest to be in the home o f t h e p are nt or g uardia n; (2 ) Whe the r the pa

re nt o r g ua

rd ia n h a s f

a ile d to e ff

e c t a la s ting adjustment after

rea sonable e fforts by

available social ser vices ag encie s for such dur ation of time th at l as t i ng adjustment does not
rea sonably

appea r possible;
(3) Whether

th e par ent or g uardia n has maintained r eg ular visitation or other contac t with the child;
(4) Whether

a mea ningf

ul relationship has other wi s e bee n established betwe en the pa rent or g uardia n and the c hild;
(5) The eff

ect a chang e of car etake rs a n d phy sical environment is likely to ha ve on the child' s emotional, psy cholog ical and medica l condition;
(6) Whether the pa

rent or g uardia n, or other pe rson re siding wi th the pa

re nt or gu ard ia n, ha s sh ow n b ru ta lit y , p hy sic a l, s e xua l,
em o ti o n a l o r p s y c h o lo g ic a l ab u s e , o r n e g le c t to w ar d th e c h il d , or another child or adult in the fa milyor household;-16- (7) Wh et her the phy sical environme nt of the par ent' s or g ua rd ia n' s h ome is h e a lth y

a ndsa fe , w he the r the re is c ri min a l a c tiv ity in the home, or whet h er there is such use of a lcohol or controlled
su bs ta nc e s a s may

re nd e r the pa

re nt o r g ua

rd ia n c on sis te ntl y

un able to car e for

the child in a saf

e and sta ble manner ; (8) Whether

the par ent' s or g uardia n' s me n t al and/or
e mo ti o n a l s tatu s w o u ld b e d e trim e n ta l to th e c h il d o r p reve nt the pare nt or g uardian from ef fec tively providing safe and stable car e and supervision for the child; or
(9) Whether

the par ent or g uardia n has pa i d child support consistent with the child support gu i d el i nes promulg ated by the department pursuant to § 36-5-101.
Tenn. Code Ann. § 36- 1-113(i) ( Supp. 2003).

Since the best intere st d et ermination requires a se parate ana ly sis, the exi stence of g ro un ds to t e rm inate pa

re nta l r ig hts do e s n ot au tom a tic a lly me a n tha t termin a tio n of pare nta l r ig hts is in the best interest of the c hild. See e .g. , In re D.I .S. , No. W2000-00061-COA-R3-CV, 2001 Tenn. App. LEXI S 358 (Tenn. Ct. App. M ay 17, 2001), no appl. perm. appeal filed , (af firming trial court’ s conclusion that, while ther e wa s clea r and c onvincing evidenc e of g ro u n d s t o t erminate pare ntal rig hts, there wa s no clea

r and convincing evidenc e that such termination was in the best interest of the child). In the p rese nt case , the J uvenile Court conc luded that Mother ha d not made such a n a dju stm e nt o f c ir c ums ta nc e , c on du c t, o r c on dit ion s a s to make it s a fe a ndin the c hil d' s b e st i nte re st to b e re turne d to he r andthat sh e wa s u na ble to e ff e c t a la sti ng a dju stm e nt a ft e r r e a so na ble e ff orts by available social ser vices a g encie s.

I n many of the c a se s w he n D CS ha s b e e n a wa rd e d te mpo ra

ry c us tod y of a c hil d, DC S is able to work with the pare nts a nd, over time, c ustody of the c hild is returned to the pa rents whe n it is safe to do so. These situations, of course , never rea ch this Court. F or those ca ses that do re ach thi s C o u rt , i t i s d i fficult to imag ine a c ase w hich has more at stake tha n that of par ents who have fore ver lost their rig hts to their child. Be cause of the ve ry nature of these pr ocee dings, a s discussed previously , there is a heig htened burden of proof on the State as well as fe dera l and state c onstitut ion protec tions.
The specific question as t o this issue that had to be a nswere d by the J uvenile Court and by this Court on appea l is whether the evidence contained in the record was clea r and convincing that termination of Mother’s pare ntal rig hts to this c hild wa s in the best interest of this child at the time of t rial. We have revie wed the r ecor d in its entirety and conc lude there was no c lear and
co n v i n cing evidenc e that termination of Mother’s pa renta l rig hts was in the best intere sts of the
c hil d. I n re a c hin g thi s c on c lus ion , w e do no t in te ndto m ini mize the se ri ou sn e ss o f M oth e r’ s p os tJ une 3 conduct. How ever , prior to this set-bac k, Mother had made sig nificant prog ress by having rd-17-

e s s e n t i a l l y c o m p l e t e d t w o p e r m a n e n c y p l a n s , a n d w a s l i t e r a l l y o n t h e v e r g e o f r e g a i n i n g c u s t o d y. She was e x erc ising unsupervised visitation for as many as four day s p er we ek and certainly had a meaning ful relationship wit h her daug hter. B eg inning in Oct o b er o f 2 002, Mother we nt into a tr e a tme nt p ro g ram and be g a n taking ste ps a va ila ble to he r to he lp r e du c e a nd , h op e fu lly , e lim inate the neg ative conse quence s of her post-J une 3 behavior . By the time of trial, Mother had bee n clea n rd and sober for nine months, she ha d established a r esidenc e wit h a bedr oom set up and wa iting for her daug hter, and she was g ainfully employ ed. This is not a ca se of “ too litt le, too late,” a s was the situation in D. G. S. L., su

pr a , wher ein the mother a dmitted she was a dr ug addict and, at the time of tr ia l, h a d b e e n “ c le a n” fo r o nly on e we e k. 20 01 Te nn

. App

. L EXI S 94 1, a t *9 . We are un able to
c on c lud e that, at th e tim e of tr ia l, it did no t app e ar r e a so na bly po ssi ble that Mo the r w ou ld b e able to make a la sting a djustment of circumstanc es or co n d i t i o n s s u ch that it would be saf e and in the ch i l d ’s b est interests to be r eturne d to Mother’s ca re. Considering the other pe rtinent fac tors contained in Te nn. Code Ann. § 36-1- 113(i) and the fac ts of this case as a w hole, we c onclude ther e wa s n o c le ar andc on vin c ing e vid e nc e that it wa s in the be st i nte re st o f the child to te rm inate Mother’s pa

renta l rig hts at that time.

I n light of our

conclusion, we prete rmit Mother’s ar g ument that she wa s denied counsel purs u an t t o T en n

. R. J uv. P. 39 and Rule 13 of the Te nnessee Supreme Court. The F inal Ju d g me n t o f

th e Ju v e n il e Co u r t i s r e v e r s e d

. O n r e man d , D CS is in s tr u c te d to d e v e lo p a

n ew Permane ncy

Plan consistent with Mother’s and the c hild’s curre nt situation.

Conclusion
The Judgment of the J uvenile Court is rev er s ed , an d this cause is re manded to the Juve nil e Cou rt

fo r f urthe r p ro c e e din g s c on sis te nt w ith thi s Op ini on a nd fo r c oll e c tio n o f the c os ts below. The costs on appea l are assessed a g ainst the Appellee Sta t e o f T en n essee , Depa rtment of Chi ldr e n’ s Se rv ic e s.

___________________________________ D. MI CHAEL

SW I NEY, JUDGE