IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs November 7, 2013

IN RE THOMAS A. H.1

Appeal from the Juvenile Court for Jefferson County

No. 1200702 Hon. Benjamin Strand, Jr., Judge

No. E2013-01449-COA-R3-PT-FILED-FEBRUARY 21, 2014

This is a termination of parental rights case in which the Tennessee Department of Children’s

Services filed a petition to terminate the parental rights of Mother to the Child. Following

a bench trial, the trial court found that clear and convincing evidence existed to support the

termination of Mother’s parental rights on the statutory grounds of persistence of conditions

and mental incompetence and that termination of her rights was in the Child’s best interest.

Mother appeals. We affirm the decision of the trial court.

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

Affirmed; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which CHARLES D. SUSANO,

JR., P.J., and THOMAS R. FRIERSON, II, J., joined.

Daniel P. Hellman, Sevierville, Tennessee, for the appellant, Brenda H.

Robert E. Cooper, Jr., Attorney General and Reporter, and Alexander S. Rieger, Assistant

Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, Department

of Children’s Services.

Jessica S. Sisk, Newport, Tennessee, guardian ad litem for the minor, Thomas A. H.

This court has a policy of protecting the identity of children in parental rights termination cases by 1

initializing the last name of the parties.
OPINION

I. BACKGROUND

Thomas A. H. (“the Child”) was born to Brenda H. (“Mother”) and Billy H. (“Father”)

on August 8, 2000. Mother and Father were cousins and never married. Father failed to

maintain a relationship with the Child, leaving Mother to care for the Child with the help of

other family members. The Child was subsequently diagnosed with Autism and was found

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to be intellectually disabled. While in Mother’s care, the Child attended special education

classes.

On October 22, 2010, the Tennessee Department of Children’s Services (“DCS”)

removed the Child from Mother’s care because the Child was found living in unsanitary and

unsafe conditions. The removal petition provided, in pertinent part,

[T]he home was observed to be in deplorable condition. The toilet of the

home was not working, a window was broken in the front door, bottles filled

with urine were in the floor in the home, there were holes observed in the

walls, ceiling and floor, dog feces, an overflowing spittoon and a bucket that

appeared to contain human feces.

The Child was subsequently adjudicated as dependent and neglected. DCS developed a

permanency plan, which required Mother to complete a psychological assessment, maintain

a safe and stable home, obtain a source of income, pay child support, and visit the Child. On

June 22, 2012, DCS filed a petition to terminate Mother’s parental rights to the Child. DCS

alleged that termination of Mother’s parental rights was supported by the statutory grounds

of abandonment, persistence of conditions, and Mother’s mental incompetence. A hearing

was held at which several witnesses testified.

Lisa Layne, the Assistant Director of Program Services for King’s Daughters’ School

Center for Autism, testified that she oversaw the health services and case management for

children placed at her school. She related that she had been the Child’s case manager for

approximately two years. She said that the Child was considered “mentally retarded,” was

autistic, and suffered from attention deficit hyperactivity disorder and asthma and that he had

been prescribed a variety of medications. She stated that at ten years old, he functioned

“below a three-year-old level,” that his attention span was “[s]lim to none,” and that he

required “consistency and routine.” She claimed that the medication allowed him to focus

Father’s parental rights were also terminated. He was not present at the hearing and did not appeal the 2

court’s decision. 

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for approximately five minutes on activities that he enjoyed but that he had a “very limited

vocabulary” and was difficult to understand. She said that he needed assistance with “all

activities of daily living,” namely showering, brushing his teeth, and dressing himself. She

related that he was becoming “increasingly difficult” because of the onset of puberty. She

stated that he was aggressive, withdrawn, and had difficulty forming attachments or bonds

with people beyond general recognition of those he interacted with on a regular basis.

Ms. Layne testified that she was generally responsible for supervising the Child’s

visits with Mother. She recalled that Mother engaged with the Child as if they were “on the

same level” and that the Child recognized Mother as his mom. She claimed that after

visitation, the Child was not distraught and never asked for Mother or talked about her. She

acknowledged that Mother called on a “regular basis” to ask about the Child and to talk with

the Child. She believed that “it would be very hard for anyone to parent [the Child] with his

special needs” and that adjusting his placement “would pose a risk to the community” and

the person charged with his care. She also believed that Mother was not capable of ensuring

that the Child complied with his routine. She stated that he needed constant supervision for

his safety and the safety of others. She was unsure as to how long the Child would require

such a high level of care because of his aggression that was often displayed by random and

impulsive behaviors.

Beth Stuart, a special education teacher at Jefferson Elementary School, testified that

she taught the Child, who was placed in her school from 2006 until he was removed from

Mother in 2010. She claimed that she worked with the Child for the entirety of his placement

at the school even though he was only in her classroom for the first two years. She recalled

that he was autistic and suffered from behavioral disorders and language delays. She stated

that he did not speak frequently and had very little academic skills. She related that the Child

had already been identified as developmentally disabled prior to his enrollment in herschool.

She learned that he had in-home services before he was old enough to attend school and that

he went to a developmental preschool prior to enrolling in her school. She recalled that the

Child was still wearing diapers when he was placed in her class but that he was eventually

trained prior to his entry into fourth grade. She claimed that he often arrived at school with

a diaper but that they would provide him with underwear and allow him to use the bathroom

throughout the day.

Ms. Stuart stated that Mother was involved in the Child’s team meetings even though

Mother’s main concern was simply obtaining assistance in training the Child to use the

bathroom. She believed that Mother was confused about the Child’s placement in special

education curriculum because Mother often asked when the Child would advance to the next

grade. She related that the Child had been prescribed a variety of medications and was

initially resistant to their attempts to give him his medication. She claimed that Mother did

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not seem cognizant of the Child’s needs for medication but acknowledged that Mother sent

appropriate medication when the Child suffered from a cold or cough. She asserted that the

Child was usually dirty when he arrived at school and that sometimes he was wearing three

or four diapers. When she asked Mother about the diapers, Mother stated that she used

several diapers because the Child often soaked through them before she was able to change

him. She recalled that she and other staff members often cleaned the Child with baby wipes

because the facility did not have an area in which they could really give him a bath. She

believed that the Child enjoyed being clean and that they helped him by cleaning and

trimming his fingernails in addition to wiping him down with baby wipes. She also provided

Mother with clothes for the Child and on at least one occasion, she transported Mother and

the Child to a doctor’s appointment because Mother did not have transportation. She claimed

that Mother’s personal hygiene was also “poor.”

Ms. Stuart claimed that Mother’s home was generally dirty and that the Child did not

have access to a bathroom and was forced to use a bucket. She related that on at least two

occasions, the Child was afraid to use the bathroom at school and that the Child also

exhibited signs of sexual abuse when they attempted to clean him. Mother denied the

instances of sexual abuse. She believed that Mother was not effectively parenting the Child,

who had gradually become more aggressive. She acknowledged that the Child and Mother

had bonded and that at times, Mother was able to understand her suggestions for parenting

the Child and successfully implemented the suggestions outside of school. She claimed that

despite progress in some areas, the Child would always need some level of supervision.

Emily Harris, a family service worker for DCS, testified that she served as the Child’s

case manager. She stated that Mother failed to visit the Child on a regular basis and never

remitted child support. She acknowledged that the Child was placed at a school that was

several hours from Mother and that Mother relied on supplemental security income for

survival. She related that DCS provided transportation for Mother, paid for Mother’s

gasoline when they did not provide transportation, and also scheduled and paid for her

psychological examination. She claimed that she had difficulties communicating with

Mother, who changed her telephone number often and moved several times. She

acknowledged that Mother no longer lived in the residence that was deemed unsafe and

unsanitary but claimed that Mother’s new residence was in “about the same condition” as the

initial residence. She explained that the newest residence, a mobile home, no longer had the

proper underpinning, that the metal side of the house had been torn off and posed a safety

risk, that the front porch appeared unstable, that the house was generally dirty, and that the

Child would not have a room if he were returned to the residence. She stated that the Child

would have to sleep in the closet because an unrelated tenant occupied the spare bedroom.

She acknowledge that her last visit to the residence revealed some improvements but claimed

that the Child still did not have a designated living area.

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Ms. Harris stated that in addition to the unsafe living environment, she was also

concerned about Mother’s cognitive functioning as it related to the Child. She claimed that

Mother did not understand why the initial living situation was unsuitable or why the new

living situation posed several of the same safety risks. She also reviewed the psychological

assessment, which revealed that Mother did not have the knowledge or ability to parent the

Child. She acknowledged that Mothershowed concern for the Child. However, she asserted

that the Child was incapable of forming a relationship with Mother, that Mother did not have

the ability to make the changes necessary to parent the Child, and that Mother would always

need direction regarding how to parent the Child. She stated that she only orally advised

Mother, who had trouble reading, regarding what was needed to provide a suitable home.

She agreed that she could have provided Mother with a list of suggested changes.

Ms. Harris testified that the Child was autistic, had attention deficit hyperactivity

disorder, and was considered “mentally retarded.” She did not believe that Mother could

provide for the Child, who had done well with his current placement. She acknowledged that

despite his progress, the Child’s increasingly aggressive behavior prevented them from

placing him in a foster home.

Regarding Mother’s mental competency, DCS admitted depositions from Bruce G.

Seidner, Ph.D. and Kathrin Ritter, a graduate student in the University of Tennessee’s

Psychological Clinic. Dr. Seidner, who was qualified as an expert in psychology and forensic

assessment, testified that he served as Ms. Ritter’s clinical supervisor when Ms. Ritter

administered several tests to Mother. He related that Ms. Ritter performed the “Wechsler

Adult Intelligence Scale,” the “Woodcock Johnson,” test and the “General Ability Measure

for Adults.” He claimed that by signing the evaluation, he adopted the evaluation report as

his own. He asserted that Ms. Ritter’s testing revealed that Mother was “really struggling in

the areas of daily functioning and social facility and expressing herself.” He related that

Mother’s adaptive functioning could be increased through a program that allowed dual foster

parenting, but he explained that Mother could not be rehabilitated to a level where she could

parent the Child by herself because she was neurologically and intellectually disabled. He

asserted that she would “always require a very high level of intervention and support in order

to meet the need of a child, let alone a special needs child.”

Ms. Ritter testified that she evaluated Mother on two separate occasions for several

hours at a time. She recalled that Mother “displayed poor body and dental hygiene” and that

it was difficult to understand Mother, who spoke with a lisp and had difficulty pronouncing

words and expressing herself. She stated that Mother appeared depressed, anxious, worried,

and agitated throughout the evaluations. She claimed that Mother was able to read and write

“at the level of a first or second grader.” According to Ms. Ritter’s report, Mother met the

intellectual deficit criterion of “mental retardation” and was functioning at a low adaptive

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level. Ms. Ritter found that Mother’s performance suggested that Mother had “significant

difficulty caring for herself and functioning adaptively on a daily basis” and that her

“difficulties likely affect[ed] her ability to parent a child of special needs.” Additional

testing suggested that Mother lacked the “skills necessary to respond adequately to [the

Child’s] needs” and that it was “unlikely” that Mother possessed “the adequate resources and

skills to effectively parent [the Child].”

Following the presentation of the above evidence, the trial court declined to terminate

Mother’s parental rights on the ground of abandonment for failure to support and failure to

visit. However, the court held that despite DCS’s reasonable efforts, the conditions which

led to the removal persisted, that there was little likelihood that the conditions would be

remedied, and that the continuation of the Child’s relationship with Mother would greatly

diminish the Child’s chances of early integration into a safe and stable home. The court

further held that Mother lacked the mental capacity to adequately provide for the Child and

that it was unlikely that she would be able to resume the care and responsibility of the Child

in the near future. The court likewise found that termination of Mother’s parental rights was

in the best interest of the Child. This timely appeal followed.

II. ISSUES

We consolidate and restate the issues raised on appeal by Mother as follows:

A. Whether despite reasonable efforts by DCS, clear and convincing evidence

supports the trial court’s termination of Mother’s parental rights to the Child

pursuant to Tennessee Code Annotated section 36-1-113(g)(3).

B. Whether clear and convincing evidence supports the trial court’s

termination of Mother’s parental rights to the Child pursuant to Tennessee

Code Annotated section 36-1-113(g)(8).

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III. STANDARD OF REVIEW

Parents have a fundamental right to the care, custody, and control of their children.

Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App.

1988). This right “is among the oldest of the judicially recognized liberty interests protected

by the Due Process Clauses of the federal and state constitutions.” In re M.J.B., 140 S.W.3d

643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a parent is a grave

and final decision, irrevocably altering the lives of the parent and child involved and

‘severing forever all legal rights and obligations’ of the parent.” Means v. Ashby, 130

S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-113(I)(1)). “‘[F]ew

consequences of judicial action are so grave as the severance of natural family ties.’” M.L.B.

v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v. Kramer, 455 U.S. 745, 787 (1982)).

While parental rights are superior to the claims of other persons and the government,

they are not absolute and may be terminated upon appropriate statutory grounds. See Blair

v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process requires clear and convincing

evidence of the existence of the grounds for termination of the parent-child relationship. In

re Drinnon, 776 S.W.2d at 97. A parent’s rights may be terminated only upon

(1) [a] finding by the court by clear and convincing evidence that the grounds

for termination of parental or guardianship rights have been established; and

(2) [t]hat termination of the parent’s or guardian’s rights is in the best interest

[] of the child.

Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing

evidence proves not only that statutory grounds exist [for the termination] but also that

termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

The existence of at least one statutory basis for termination of parental rights will support the

trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct.

App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App.

2005).

The heightened burden of proof in parental termination cases minimizes the risk of

erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,

622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence standard

establishes that the truth of the facts asserted is highly probable. State v. Demarr, No.

M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App. Aug. 13, 2003). This

evidence also eliminates any serious or substantial doubt about the correctness of the

conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at 546; In re S.M., 149

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S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d 919, 925 (Tenn. Ct. App.

2004). It produces in a fact-finder’s mind a firm belief or conviction regarding the truth of

the facts sought to be established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002);

Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474.

In 2010, the Tennessee Supreme Court provided guidance to this court in reviewing

cases involving the termination of parental rights:

A reviewing court must review the trial court’s findings of fact de novo with

a presumption of correctness under [Rule 13(d) of the Tennessee Rules of

Appellate Procedure]. See In re Adoption of A.M.H., 215 S.W.3d [793,] 809

[(Tenn. 2007)]. In light of the heightened burden of proof in proceedings

under [Tennessee Code Annotated section] 36-1-113, the reviewing court must

then make its own determination regarding whether the facts, either as found

by the trial court or as supported by a preponderance of the evidence, provide

clear and convincing evidence that supports all the elements of the termination

claim. State Dep’t of Children’s Servs. v. Mims, 285 S.W.3d [435,] 447-48

[(Tenn. Ct. App. 2008)]; In re Giorgianna H., 205 S.W.3d 508, 516 (Tenn. Ct.

App. 2006); In re S.M., 149 S.W.3d 632, 640 n. 13 (Tenn. Ct. App. 2004).

Appellate courts conduct a de novo review of the trial court’s decisions

regarding questions of law in termination proceedings. However, these

decisions, unlike the trial court’s findings of fact, are not presumed to be

correct. In re Angela E., 303 S.W.3d [240,] 246 [(Tenn. 2010)]; In re

Adoption of A.M.H., 215 S.W.3d at 809.

In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010).

IV. DISCUSSION

A.

Mother argues that DCS failed to sufficiently establish that it made reasonable efforts

to reunite her with the Child before initiating termination proceedings based upon the ground

of persistence of conditions. She claims that despite DCS’s shortcomings, the conditions

which led to removal had largely been remedied and that DCS failed to establish that the

remaining conditions would not be remedied. She contends that the continuation of her

relationship with the Child would not impede his transition into a stable home when he had

not even been placed in foster care. DCS responds that despite its reasonable efforts, Mother

was simply not able to provide a safe and sanitary home for the Child.

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Under Tennessee law, a court may terminate parental rights when:

(3) The child has been removed from the home of the parent or guardian by

order of a court for a period of six (6) months and:

(A) The conditions that led to the child’s removal or other

conditions that in all reasonable probability would cause the

child to be subjected to further abuse or neglect and that,

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

parent(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) (emphasis added). Termination of parental rightsrequires

clear and convincing evidence of all three factors. In re Valentine, 79 S.W.3d at 550.

Once a child has been removed from a parent’s home, DCS is tasked with making it

possible for the child to return home before instituting termination proceedings. Tenn. Code

Ann. § 37-1-166(a)(2). At the termination proceeding, DCS must prove by clear and

convincing evidence that reasonable efforts were made to reunite the child with the parent.

Tenn. Code Ann. § 37-1-166(b). For purposes of DCS’s involvement, the term reasonable

efforts refers to “the exercise of reasonable care and diligence by the [DCS] to provide

services related to meeting the needs of the child and the family.” Tenn. Code Ann. § 37-1-

166(g)(1). “The reasonableness of [DCS’s] efforts depends upon the circumstances of the

particular case.” In re Giorgianna H., 205 S.W.3d 508, 519 (Tenn. Ct. App. 2006).

“While [DCS’s] reunification efforts need not be “herculean,” DCS must do more

than simply provide the parents with a list of services and send them on their way.” Id.

“[DCS] employees must use their superior insight and training to assist the parents in

addressing and completing the tasks identified in the permanency plan.” Id. These

“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 R.L.F., 278 S.W.3d 305, 316 (Tenn. Ct. App. 2008). In

keeping with this ideal, DCS must provide an affidavit, identifying its reasonable efforts, for

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the court’s consideration. Tenn. Code Ann. § 37-1-166(c); see In re R.L.F., 278 S.W.3d at

317. In determining whether the efforts used by DCS were reasonable, the court should

consider the Department’s affidavit and the following factors:

(1) the reasons for separating the parent from his or her children,

(2) the parent’s physical and mental abilities,

(3) the resources available to the parent,

(4) the parent’s efforts to remedy the conditions that required the removal of

the children,

(5) the resources available to [DCS],

(6) the duration and extent of the parent’s remedial efforts,

(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 [DCS’s] efforts.

In re Giorgianna H., 205 S.W.3d at 519. However, “‘[r]eunification of a family is a two-way

street, and the law does not require [DCS] to carry the entire burden of this goal.” State

Dep’t. of Children’s Servs. v. S.M.D., 200 S.W.3d 184, 198 (Tenn. Ct. App. 2006) (quoting

In re R.C.V., No. W2001-02102-COA-R3-JV, 2002 WL 31730899, at *11 (Tenn. Ct. App.

Nov. 18, 2002)). “Thus, parents desiring the return of their children must also make

reasonable and appropriate efforts to rehabilitate themselves and to remedy the conditions

that required [DCS] to remove their children from their custody.” In re Giorgianna H., 205

S.W.3d at 519.

Ms. Harris submitted several affidavits documenting her efforts in reuniting Mother

with the Child. The affidavits reflect her continued contact with Mother, her coordination

of Mother’s visitation with the Child, and her scheduling of Mother’s psychological

evaluation. Ms. Harris attested that Mother initially made “vast improvements” in the home

but that despite Mother’s maintenance of the vast improvements, the Child no longer had a

designated bedroom because Mother invited two additional people into the home. Ms. Harris

noted that Mother eventually left the home to live with relatives in July 2011. In the

termination petition, Ms. Harris asserted that other conditions in the home existed that would

lead to further abuse or neglect of the Child. Ms. Harris noted that the Child had mental

health needs that required a greater level of care than Mother could provide with her limited

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cognitive abilities. Likewise, Ms. Harris testified at trial that the new residence appeared

unsanitary and unsafe and that the Child still did not have a designated bedroom.

Having reviewed the evidence, we believe that DCS took great measures to reunite

Mother with the Child. Mother’slimited cognitive ability greatly impaired DCS’s efforts and

qualified as additional conditions that prevented the Child’s safe return. There is little

likelihood that the additional conditions, namely Mother’s limited cognitive ability, will ever

be remedied. While the Child had not been placed in an adoptive home, he had made

improvements such that the continuation of Mother’s limited relationship greatly diminished

his integration into a safe, stable and permanent home. With these considerations in mind,

we conclude that the record contains clear and convincing evidence that DCS made

reasonable efforts to assist Mother and that the evidence does not preponderate against the

trial court’s finding that a statutory ground existed for termination of her parental rights

based upon the persistence of conditions which led to removal.

B.

Only one statutory ground must be established by clear and convincing evidence to

justify termination of Mother’s parental rights. Tenn. Code Ann. § 36-1-113(c). In the event

of further appellate review, we will consider the second statutory ground of mental

incompetence. Mother argues that the evidence was insufficient to establish her mental

incompetence concerning her ability to parent the Child. She claims that the trial court

improperly relied upon a report that was two years old and that Mother’s interactions with

the Child’s teachers illustrated her true abilities. DCS responds that the trial court correctly

ruled that Mother’s parental rights should be terminated due to her mental incompetence.

Under Tennessee law, a court may terminate parental rights when clear and

convincing evidence is provided to establish that:

(i) The parent . . . of the child is incompetent to adequately provide for the

further care and supervision of the child because the parent’s . . . mental

condition is presently so impaired and is so likely to remain so that it is

unlikely that the parent . . . will be able to assume or resume the care of and

responsibility for the child in the near future; and

(ii) That termination of parental . . . rights is in the best interest of the child[.]

Tenn. Code Ann. § 36-1-113(g)(8)(B). DCS bears the burden of demonstrating “by clear and

convincing evidence both that [the parent] is presently unable to care for the children and that

it is unlikely that [the parent] will be able to do so in the near future.” In re Keisheal, No.

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M2012-01108-COA-R3-PT, 2013 WL 440061, at *7 (Tenn. Ct. App. Feb. 4, 2013) (citing

Tenn. Code Ann. § 36-1-113(g)(8)). The statute also expressly provides that no finding of

willfulness is required to establish this ground. Tenn. Code Ann. § 36-1-113(g)(8)(C).

Mother provided no witnesses to testify as to her competency. Instead, she relied

upon testimony from the Child’s former teachers concerning her ability to comply with their

basic recommendations concerning the Child in 2010. Interestingly, Mother then casts doubt

upon the psychological evaluation because it was produced in 2011. We commend Mother’s

care and concern for the Child because it is rarely seen in such proceedings; however, the

record reflects that Mother is simply not equipped to care for a child that has significant

special needs. With these considerations in mind, we conclude that DCS proved by clear and

convincing evidence that Mother is (1) presently incompetent to adequately provide for the

care and supervision of the Child because of mental impairment and (2) such mental

impairment is so likely to remain that it is unlikely that Mother will be able to resume care

or responsibility for the Child in the near future. Accordingly, a second statutory ground

supported the termination of Mother’s parental rights.

C.

Having concluded that there was clear and convincing evidence supporting the

statutory groundsfor termination, we now consider whether termination of Mother’s parental

rights was in the best interest of the Child. Although Mother has not appealed the court’s

best interest finding, we have reviewed the issue because of the gravity and finality that this

decision will have on Mother’s parental rights. See In re Arteria H., 326 S.W.3d 167, 184

(Tenn. Ct. App. 2010) (considering the best interest issue even though the issue was not

raised on appeal). Following our review, we conclude that there was clear and convincing

evidence to establish that termination of Mother’s parental rights was in the best interest of

the Child pursuant to Tennessee Code Annotated section 36-1-113(i). Accordingly, we

affirm the trial court’s termination of Mother’s parental rights.

V. CONCLUSION

The judgment of the trial court is affirmed, and the case is remanded for such further

proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Brenda H.

______________________________________

JOHN W. McCLARTY, JUDGE

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