In re Scott H.

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs July 1, 2016

IN RE SCOTT H.

Appeal from the Juvenile Court for Shelby County
No. X5881 David S. Walker, Special Judge

No. W2016-00070-COA-R3-PT – Filed September 30, 2016

This is a termination of parental rights case involving a ten-year-old child, Scott H. (“the
Child”). On August 8, 2011, the Shelby County Juvenile Court (“trial court”) granted
temporary legal custody of the Child to the Tennessee Department of Children‟s Services
(“DCS”). The Child was immediately placed in foster care, where he has remained since
that date. DCS subsequently filed a petition to terminate the parental rights of the Child‟s
mother, Jill H. (“Mother”), and his father, William H. (“Father”), on April 17, 2015.1
Following a bench trial, the trial court terminated Mother‟s parental rights to the Child
after determining by clear and convincing evidence that (1) Mother failed to substantially
comply with the requirements of the permanency plans, (2) the conditions that led to the
removal of the Child from Mother‟s custody still persisted, and (3) Mother was mentally
incompetent to adequately care for the Child. The trial court further found by clear and
convincing evidence that termination of Mother‟s parental rights was in the best interest
of the Child. Mother has appealed. Discerning no error, we affirm.

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

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which ANDY D.
BENNETT, J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Johnna I. Duke, Memphis, Tennessee, for the appellant, Jill H.2

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

1
Father, whose parental rights to the Child were also terminated by the trial court, is not participating in
this appeal.
2
We note that in its judgment, the trial court listed “Jill B.” as a prior name for Mother. Inasmuch as the
trial court referred to Mother as “Jill H.” throughout its judgment, we will refer to Mother as Jill H. or
Mother for purposes of this Opinion.
Sharon G. Lichliter, Germantown, Tennessee, Guardian Ad Litem.

OPINION

I. Factual and Procedural Background

Prior to the Child‟s removal from the parents‟ home on August 8, 2011, DCS
received a referral in April 2011 alleging psychological harm to the Child and his
siblings. At the time of the referral, the Child was admitted to the intensive care unit at
LeBonheur Children‟s Medical Center for complications resulting from a seizure. The
Child has a severe seizure disorder, autism, uses a wheelchair, and requires that several
medications be administered to him precisely on a daily basis in order to maintain
physical and mental stability. Hospital personnel and DCS had concerns at that time that
Mother was unable to properly administer the Child‟s medications.

As a result of the referral, DCS established service providers to work with the
parents in the parents‟ home. The Child was subsequently placed in foster care on
August 8, 2011, by order of the trial court, due to “the lack of participation and
insignificant progress that the children were making [in] the care of the parents” and
additional concerns regarding both Mother‟s and Father‟s mental health.3 In its
Protective Custody Order, the court found as follows in pertinent part:

The nature of the emergency that indicates an immediate threat to the
children‟s health is the parents‟ lack of concern with the lack of progress
[of] the children in the home. The parent[s‟] negligence with meeting the
immediate needs of [the Child] and [L.H.] is also extremely concerning,
and they are leaving [K.H.] (who is nine years old) with the responsibility
of medicating his younger brother [the Child]. The children have not made
any progress in the care of the parents and their individual issues are getting
progressively worse. The children are more delayed than they should be
given the multitude of issues they have. . . . Also, the mother is diagnosed
with mood disorder and is [intellectually disabled], which further causes
concern that the children are not being cared for properly in the home.4

3
The Child has two siblings, L.H. and K.H., who were also placed into DCS custody on August 8, 2011.
L.H. was six years old and K.H. was nine years old at the time the children were removed from the
parents‟ custody. Those siblings were released into the custody of relatives during the pendency of the
case. Due to the special needs of the Child, the relative caregivers were unable to assume custody of the
Child.
4
We note that our Supreme Court has urged the use of “intellectual disability” whenever possible to
avoid negative stereotypes and potentially hurtful terminology. See Keen v. State, 398 S.W.3d 594, 600
2
 The court adjudicated the Child as dependent and neglected on January 27, 2012.
At that time, the court found that it was not reasonable for DCS to make efforts to
maintain the Child in the home due to the psychological harm to the Child and his
siblings while in the custody of the parents and the parents‟ failure to provide appropriate
parenting and counseling for the Child to address his special needs. The Child remained
in foster care during the pendency of the case.

Upon the Child‟s placement into the custody of DCS, permanency plans were
developed for the Child on August 22, 2011; February 22, 2012; February 13, 2013;
February 7, 2014; and March 23, 2015. In the initial permanency plan created on August
22, 2011, and ratified on September 8, 2011, DCS listed a goal of “Return to Parent.” A
permanency plan developed on February 22, 2012, and ratified on September 17, 2012,
included the same goal as the previous plan. In the permanency plan dated February 13,
2013, and ratified on August 5, 2013, DCS amended the permanency plan goals
regarding the Child to include “Adoption” or “Exit Custody with Kin.” The permanency
plan dated February 7, 2014, was ratified on August 9, 2014, and included the same goals
as the previous plan. In the March 23, 2015 permanency plan, ratified on September 14,
2015, DCS listed “Adoption” as the only goal. The permanency plans required Mother to
(1) care for the Child effectively and successfully by providing him with a safe
environment; (2) ensure that the Child was bathed, had clean clothing, and was at school
on time; (3) ensure that the Child‟s appointments were timely scheduled and his
medications timely filled; (4) properly administer the Child‟s medications; (5) understand
the Child‟s medical needs; (6) complete parenting classes; (7) demonstrate an ability to
care for and meet the Child‟s needs; (8) care for herself effectively and successfully by
attending all mental health appointments and making consistent progress; (9) provide
verification of her mental health treatment; (10) follow the recommendations of
psychological assessments; (11) visit with the Child; and (12) pay child support. DCS
filed a petition to terminate parental rights on April 17, 2015.

DCS case manager Dakshanique Gary was assigned to this case on January 3,
2012. Ms. Gary testified at trial that the most important task on the permanency plan was
for Mother to attend the Child‟s medical appointments and demonstrate an understanding
of the Child‟s medical diagnoses and the proper administration of the Child‟s
medications. Ms. Gary noted that receiving a proper dosage of medications was essential
for the Child to survive. According to Ms. Gary, DCS worked with Mother for four years
after the Child was placed into DCS custody on August 8, 2011. Since the Child had
been in custody, Mother had completed a mental health assessment, parenting classes,

n.6 (Tenn. 2012) (citing the Tennessee General Assembly‟s 2010 amendment to Tennessee Code
Annotated § 39-13-203); In re Christopher S., No. E2012-02349-COA-R3-PT, 2013 WL 5436673, at *3
n.1 (Tenn. Ct. App. Sept. 27, 2013).
3
and a psychological evaluation. Mother continued to visit the Child during the case and
maintained housing.

Ms. Gary further testified that DCS placed Youth Villages, a service provider, into
Mother‟s home for over a year. As explained by Ms. Gary, although Youth Villages is
only intended to provide services in a home for thirty to ninety days, Youth Villages had
worked with Mother for over a year to exhaust their efforts. Youth Villages provided
assistance to Mother with parenting a special-needs child and training on methods to
properly administer the Child‟s medications. During one visit, Mother was to complete
an exercise and demonstrate how to administer the Child‟s medications using a bucket of
water and a dropper. During the exercise, however, Mother was able to successfully
perform the technique only one out of five times with assistance. Youth Villages also
worked with the parents to recognize the Child‟s seizure symptoms, which included
turning his foot inward, losing his balance, and “staring off.”

For additional assistance, DCS provided Mother with a calendar containing dates,
times, and locations of the Child‟s medical appointments. Ms. Gary also indicated that
she arranged for the foster parents to meet Mother at a neutral location so that she could
follow them to the Child‟s medical appointments. As Ms. Gary explained, Mother
missed several of the Child‟s medical appointments, claiming that she did not know the
location or had confused the times of the appointments. According to Ms. Gary, when
Mother did attend the appointments, she became irate if the physician referred to the
foster mother as the Child‟s mother. Ergo, the appointments became counterproductive
for Mother. Ms. Gary also related that while she informed Mother of an available class
for parents of children diagnosed with autism, Mother did not attend. Although that class
was not specifically required by the permanency plan, the instruction could have been
helpful to Mother in understanding the Child‟s medical condition. According to Ms.
Gary, Mother had not demonstrated that she understood the Child‟s medical needs by the
time of trial and had further not demonstrated that she could properly administer the
Child‟s medications. As Ms. Gary indicated, Mother never demonstrated any parenting
skills that she had learned from the parenting classes during visits with the Child.

During the pendency of the underlying dependency and neglect action, Mother and
Father were afforded unsupervised visitation together with the Child when Father was
able to demonstrate an ability to administer the Child‟s medications.5 Ms. Gary testified
that, despite Father‟s progress, Mother had failed to demonstrate an ability to administer
the Child‟s medications. By virtue of the parents‟ cohabitation, unsupervised visitation
with both parents participating began. Following the commencement of unsupervised
5
The unsupervised visitation was provided for the parents jointly. As the parents resided together, the
unsupervised visits took place at their home. Although Mother had not demonstrated an ability to
administer the Child‟s medications, Father in fact had.
4
visits, concerns arose due to the Child‟s physical appearance. According to Ms. Gary, the
Child returned from the unsupervised visits soiled, dirty, pale, and “a little bit off
balance.” Consequently, the foster parents became concerned and took the Child to his
primary care physician. Medication levels in the Child‟s blood were tested prior to an
unsupervised visit and again following the visit. Testing showed that the Child‟s levels
were within an acceptable range on the Friday morning before he departed for the
respective unsupervised visit. Subsequent blood testing performed after the Child
returned from the visit, however, demonstrated a significant decline of the medications in
the Child‟s system. According to Ms. Gary, the blood testing evinced that the Child was
not receiving the proper medications during the unsupervised visits, resulting in the
Child‟s decline in health by the time he returned to the foster home. Mother claimed that
she and Father had administered the Child‟s medications correctly. Subsequently, the
unsupervised visits ceased.

On December 22, 2014, Mother underwent a psychological evaluation performed
by LaShaunda P. Massey, Ph.D. At trial, Dr. Massey was qualified to testify as an expert
clinical psychologist in the area of child neglect without objection. In her evaluation, Dr.
Massey recognized a “disconnect between [Mother‟s] desires and true abilities.”
According to Dr. Massey, Mother failed to “recognize her limitations and tend[ed] to
minimize problems in her functioning.” Dr. Massey observed that Mother had a “very
superficial level” of understanding regarding the Child‟s medical condition and the
reasons the Child was removed from her home. Testing established that Mother had a
functional intelligence quotient of 75, which Dr. Massey described as being “at the 5th
percentile indicating that [Mother‟s] level of functioning is below that of 95% of her
same-aged peers.” According to Dr. Massey, this score suggested that Mother would
“have difficulty understanding complex information and functioning in a manner
expected of someone her chronological age.” Dr. Massey further opined that Mother
genuinely believed she had provided adequate care for the Child and had not intentionally
neglected him. Mother did not complete the anger assessment form, but a parenting
measure demonstrated that Mother was “at risk for using overly harsh disciplinary
strategies . . . .”

Dr. Massey diagnosed Mother with Mood Disorder, not otherwise specified, and
Borderline Intellectual Functioning. Dr. Massey opined that Mother would “not make
any significant gains in cognitive functioning over time.” Dr. Massey concluded:

Despite her love for her children and her desire to reunite her family,
[Mother] does not have the capacity to parent independently or to co-parent
effectively with [Father] based on her borderline level of intellectual
functioning, limited adaptive functioning skills, and problems with
emotional regulation. [Mother] has limited insight in regards to her
5
 functional limits and that is an additional barrier to her appropriate
functioning. [Mother] has demonstrated limited understanding of [the
Child‟s] significant problems and medical needs. She has not learned to
properly administer his medication. Returning [the Child] to her care
would place this medically fragile child at risk.

Based on the results of the psychological evaluation, Dr. Massey concluded at trial
that Mother was not able to adequately parent the Child. Although Dr. Massey
recommended in her evaluation that structured, supervised visitation continue with
Mother and the Child, Dr. Massey testified that ongoing supervised visitation would not
likely lead to reunification of the Child with the parents.

In addition, Ms. Gary testified that Mother was easily agitated, explaining that
Mother assaulted Father during a meeting at DCS. Ms. Gary further testified regarding
an assault by Mother upon an agency worker with Youth Villages. Mother made several
outbursts during the trial, resulting in continual reminders from the trial court that Mother
remain calm. Ultimately, the trial court ordered Mother removed from the courtroom at
the end of the proceeding.

Ms. Gary also articulated that the Child‟s behavior had improved since being
placed into foster care. The Child was now doing “extremely well” and was in a pre-
adoptive foster home. According to Ms. Gary, the Child maintained a strong bond with
the foster parents. Although the Child recognized Mother and was happy to see her, Ms.
Gary did not believe that the Child and Mother were bonded. Instead, Ms. Gary opined
that visits with Mother were harmful to the Child as the Child would, at times, become
upset during visits and “shut down.”

During trial, the Child‟s foster mother testified at length regarding the severity of
the Child‟s seizure disorder, the treatment required for his medical condition, the
accommodations she had made with the Child in her home, and the Child‟s significant
progress she had observed. The foster mother related that the Child was required to take
numerous medications, including anti-seizure medications, behavior-modification
medication, and blood pressure medication. As explained, although the Child suffered
mild seizures daily, major seizures had stopped since he had “leveled out on his
medications.” When questioned, the foster mother elaborated that although she and her
husband would love to adopt the Child, they intended to allow him to continue to see his
biological siblings and possibly his biological parents, so long as those visits were
successful for everyone.

The trial was conducted on October 29, 2015, before Special Judge David S.
Walker. Mother was present for trial. The record contains no appointment order signed
6
by the trial court judge appointing attorney David S. Walker as a special judge for this
case. No party objected at trial to Mr. Walker presiding over the case as a special judge.

Following the trial on the merits, the trial court entered a final order on December
3, 2015, terminating Mother‟s parental rights to the Child. As pertinent to this appeal, the
court found by clear and convincing evidence that (1) Mother failed to substantially
comply with the requirements of the permanency plans, (2) Mother was mentally
incompetent and unable to care for the Child, and (3) the conditions leading to the Child‟s
removal from the home still persisted. The trial court further found by clear and
convincing evidence that termination of Mother‟s parental rights was in the best interest
of the Child. Mother timely appealed. During the appeal, this Court requested that the
parties file supplemental briefs addressing Mr. Walker‟s authority to preside over this
matter. Mother, DCS, and the guardian ad litem filed supplemental briefs, with each
respectively concluding that Mr. Walker had lawful authority to preside over the trial.

II. Issues Presented

Mother presents four issues for our review, which we have restated as follows:

1. Whether the trial court erred by terminating Mother‟s parental rights
based on the statutory ground of substantial noncompliance with the
permanency plans.

2. Whether the trial court erred by terminating Mother‟s parental rights
based on the statutory ground of mental incompetence to adequately
care for the Child.

3. Whether the trial court erred by terminating Mother‟s parental rights
based on the statutory ground of persistence of conditions leading to
removal of the Child.

4. Whether the trial court erred by determining by clear and convincing
evidence that the termination of Mother‟s parental rights was in the
best interest of the Child.

III. Standard of Review

In a termination of parental rights case, this Court has a duty to determine
“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 trial court‟s findings of fact are reviewed de novo upon the record,
7
accompanied by a presumption of correctness unless the evidence preponderates against
those findings. Tenn. R. App. P. 13(d); see In re Carrington H., 483 S.W.3d 507, 524
(Tenn. 2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are
reviewed de novo with no presumption of correctness. See In re Carrington H., 483
S.W.3d at 524 (citing In re M.L.P., 281 S.W.3d 393 (Tenn. 2009)). The trial court‟s
determinations regarding witness credibility are entitled to great weight on appeal and
shall not be disturbed absent clear and convincing evidence to the contrary. See Jones v.
Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).

“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling,
92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not
absolute and parental rights may be terminated if there is clear and convincing evidence
justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96,
97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71
L.Ed.2d 599 (1982)). As our Supreme Court has recently explained:

The parental rights at stake are “far more precious than any property
right.” Santosky, 455 U.S. at 758-59. Termination of parental rights has
the legal effect of reducing the parent to the role of a complete stranger and
of [“]severing forever all legal rights and obligations of the parent or
guardian of the child.” Tenn. Code Ann. § 36-1-113(l)(1); see also
Santosky, 455 U.S. at 759 (recognizing that a decison terminating parental
rights is “final and irrevocable”). In light of the interests and consequences
at stake, parents are constitutionally entitled to “fundamentally fair
procedures” in termination proceedings. Santosky, 455 U.S. at 754; see
also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty, N.C., 452 U.S. 18, 27
(1981) (discussing the due process right of parents to fundamentally fair
procedures).

Among the constitutionally mandated “fundamentally fair
procedures” is a heightened standard of proof—clear and convincing
evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of
unnecessary or erroneous governmental interference with fundamental
parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010).
“Clear and convincing evidence enables the fact-finder to form a firm belief
or conviction regarding the truth of the facts, and eliminates any serious or
substantial doubt about the correctness of these factual findings.” In re
Bernard T. 319 S.W.3d at 596 (citations omitted). The clear-and-
convincing-evidence standard ensures that the facts are established as
highly probable, rather than as simply more probable than not. In re
8
 Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183
S.W.3d 652, 660 (Tenn. Ct. App. 2005).

***

In light of the heightened burden of proof in termination
proceedings, however, the reviewing court must make its own
determination as to whether the facts, either as found by the trial court or as
supported by a preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate parental rights.
In re Bernard T., 319 S.W.3d at 596-97.

In re Carrington H., 483 S.W.3d at 522-24. “[P]ersons seeking to terminate [parental]
rights must prove all the elements of their case by clear and convincing evidence,”
including statutory grounds and the best interest of the child. See In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010).

IV. Authority of Special Judge

As a threshold issue, we first address, sua sponte, whether the special judge was
properly appointed to hear this matter. See Tenn. R. App. P. 13(b); see, e.g., County of
Shelby et al. v. City of Memphis et al., 365 S.W.2d 291, 291 (Tenn. 1963). If Mr. Walker
was not properly appointed as a special judge, we must then determine whether the
finality and validity of the trial court‟s judgment are affected. In her supplemental brief
addressing this issue, Mother indicated her acquiescence in the appointment of David S.
Walker as a special judge and agreed that Mr. Walker maintained the authority to render
a decision as special judge in this cause. Upon our careful review, we conclude that Mr.
Walker acted as a de facto judge in these proceedings and that the judgment signed by
Mr. Walker is valid and enforceable.

In the trial court‟s judgment, signed by Mr. Walker, apparent boilerplate language6
was included, which read, as follows:

The Judge finds it necessary to be absent from holding Court, and pursuant
to Tenn. Code Ann. 17-2-122(b) appoints as substitute judge, David S.
Walker, who is a licensed attorney in good standing with the Tennessee

6
The same language, except for the special judge‟s name, appears in at least three separate orders in the
record signed by special judges. Mother also stated in her supplemental brief that “[s]pecial language is
added to the orders issued by the special judge reflecting his/her appointment in the case.”

9
 Supreme Court and a Magistrate appointed by him to serve as special judge
in matters related to duties as a judicial officer.7

The record before us contains no appointment order signed by the trial court judge
appointing Mr. Walker as a special judge in this action.8 Instead, the judgment bears only
Mr. Walker‟s signature for appointment as special judge. Notwithstanding, neither party
has challenged the special judge‟s authority to adjudicate the termination action either in
the trial court or on appeal.

Although the absence of an appointment order is a procedural error, the procedural
error is not necessarily fatal. See Ferrell v. Cigna Property & Cas. Ins. Co., 33 S.W.3d
731, 739 (Tenn. 2000); State Dep’t of Children’s Services v. A.M.H., 198 S.W.3d 757,
764 (Tenn. Ct. App. 2006); In re M.A.P., No. W2008-01352-COA-R3-PT, 2009 WL
2003357, at *13, n.11 (Tenn. Ct. App. July 10, 2009). If a judge is acting under the color
of law absent bad faith, the special judge may serve as a de facto judge, and his/her acts
will be binding on the parties. See Ferrell, 33 S.W.3d at 739; M.A.P., 2009 WL
2003357, at *13, n.11. In Ferrell, our Supreme Court explained that “[a] judge de facto
is one acting with color of right and who is regarded as, and has the reputation of,
exercising the judicial function he assumes.” Ferrell, 33 S.W.3d at 739 (quoting State ex
rel. Newsom v. Biggars, 911 S.W.2d 715,718 (Tenn. 1995)). other

During this appeal, this Court sua sponte directed the parties to file supplemental
briefs addressing whether the special judge was properly appointed to hear this matter
and if not, further addressing the validity and finality of the judgment appealed. Mother,
DCS, and the guardian ad litem each respectively filed briefs concerning this issue. In
Mother‟s supplemental brief, she concludes that “the special judge had the authority to
hear the matter and render a decision.” DCS and the guardian ad litem also assert that the
special judge had the authority to preside over the case as special judge.
7
Tennessee Code Annotated § 17-2-122 (2009) provides:

(a) Notwithstanding § 16-15-209 or § 17-2-109 or any other relevant provision to the
contrary, a judge shall have the authority to appoint a special judge as provided in this
section.

(b) Sections 16-15-209 and 17-2-109 and any other relevant provision shall not apply
where a judge finds it necessary to be absent from holding court and appoints as a
substitute judge an officer of the judicial system under the judge‟s supervision whose
duty it is to perform judicial functions, such as a juvenile magistrate, a child support
magistrate or clerk and master, who is a licensed attorney in good standing with the
Tennessee supreme court. The judicial officer shall only serve as special judge in matters
related to their duties as judicial officer.
8
The record is otherwise silent as to whether Mr. Walker is a magistrate or other judicial officer.
10
 This Court recently addressed a similar issue in In re Devin B., No. W2016-00121-
COA-R3-JV, 2016 WL 4520859 (Tenn. Ct. App. Aug. 25, 2016). In that case, this Court
explained:

Relying on In re M.A.P., Father notes that the special judge‟s “authority
was not challenged by any of the parties, and there is nothing in the record
indicating that [the special judge] operated in bad faith, and therefore, [the
special judge] acted as de facto judge, and the appeal is properly before this
[c]ourt.” Despite this Court‟s criticism of the Juvenile Court‟s method of
appointing special judges in 2009 in In re M.A.P., the practice appears to
have endured. However, given Father‟s acquiescence to the practice and
the outcome discussed herein, we proceed to address the issues raised by
Appellant on appeal.

Id. at *3.

Similarly, in the case at bar, Mother has acquiesced in the appointment and
asserted on appeal that Mr. Walker had the authority to preside as special judge. Despite
the absence of an appointment order signed by the trial court judge, there is no evidence
contained in the record that the special judge operated in bad faith. Inasmuch as there has
been no objection by any party to Mr. Walker‟s authority to preside over this matter in
the absence of a valid appointment order, we determine that the special judge was acting
as a de facto judge. Accordingly, the judgment is final and valid. We shall proceed to
address the issues raised on appeal.

V. Grounds for Termination of Parental Rights

Tennessee Code Annotated § 36-1-113 (Supp. 2016) lists the statutory grounds for
termination of parental rights, providing in relevant part as follows:

(a) The chancery and circuit courts shall have concurrent jurisdiction
with the juvenile court to terminate parental or guardianship rights to
a child in a separate proceeding, or as a part of the adoption
proceeding by utilizing any grounds for termination of parental or
guardianship rights permitted in this part or in title 37, chapter 1,
part 1 and title 37, chapter 2, part 4.

***

(c) Termination of parental or guardianship rights must be based upon:
11
 (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) That termination of the parent‟s or guardian‟s rights is in the
best interests of the child.

The trial court determined that the evidence clearly and convincingly supported a
finding of three statutory grounds to terminate Mother‟s parental rights: (1) substantial
noncompliance with the permanency plans, (2) mental incompetence to adequately care
for the Child, and (3) persistence of conditions leading to removal of the Child. We will
address each statutory ground in turn.

A. Substantial Noncompliance with the Permanency Plans

Mother contends that the trial court erred by finding clear and convincing evidence
that she failed to substantially comply with the reasonable responsibilities set out in the
permanency plans. Tennessee Code Annotated § 36-1-113(g)(2) provides as a ground for
termination of parental rights:

(2) There has been substantial noncompliance by the parent or guardian
with the statement of responsibilities in a permanency plan pursuant to the
provisions of title 37, chapter 2, part 4[.]

In its final judgment, the trial court stated specific findings of fact regarding this
statutory ground as follows in relevant part:

Pursuant to Tennessee Code Annotated section 36-1-113(g)(2),
[Mother has] failed to comply with the obligations and responsibilities
outlined in the permanency plans, though said obligations and
responsibilities were ratified by the Court as reasonable and related to the
reasons necessitating foster care. Dakshanique Gary testified as to the
creation, goal and requirements of the permanency plans dated August 22,
2011, February 22, 2012, February 13, 2013, February 7, 2014, and March
23, 2015. Said permanency plans required [Mother] to care for the child
effectively and successfully by providing him with a safe environment;
ensure that [the Child] is bathed, [has] clean clothes, and get[s] to school on
time[;] ensure [the Child‟s] appointments are timely scheduled and his
medications timely refilled; attend [the Child‟s] medical appointments;
demonstrate an understanding of [the Child‟s] medical issues and how to
12
 care for them; demonstrate an ability to parent the child; understand the
child‟s medical issues; meet the child‟s needs; care for [herself] effectively
and successfully by attending [Mother‟s] own mental health appointments
and tak[ing] prescribed medications consistently; provide verification of
[Mother‟s] mental health treatment; visit and support the child; and follow
the recommendations of the psychological assessments. The Court finds
that the most important tasks on the permanency plan [were] for [Mother]
to demonstrate an understanding of [the Child‟s] medical conditions and
demonstrate an ability to care for them. The Court further finds that despite
[DCS‟s] reasonable efforts to assist in compliance with this task by placing
Youth Villages Intercept services in the parents‟ home to provide assistance
with parenting a special needs child; providing the [Mother] with dates of
training offered to parents with children who have [a] mental health
diagnosis and for parents with children diagnosed with autism; providing
[Mother] with a calendar of [the Child‟s] appointment[s] and arranging for
[Mother] to meet the foster parents at a familiar location so that they can
trail the foster parents to the appointments[;] and the [Mother‟s] completion
of parenting classes[,] that [Mother has] not demonstrated the ability to
comply with this task and care for [the Child‟s] medical needs. [Mother
was] notified that failure to comply with the requirements on the
permanency plans could result in the termination of [her] parental rights.

Upon our careful review of the record, we determine that the evidence
preponderates in favor of the factual findings by the trial court. Although Mother
completed parenting classes and continued to visit with the Child, Ms. Gary testified that
Mother had not demonstrated any skills learned during her parenting classes while caring
for the Child. The trial court determined that the most important requirements on the
permanency plans were for Mother to demonstrate an understanding of the Child‟s
medical condition and to demonstrate an ability to care for the Child‟s medical condition.
Significantly, Mother missed several of the Child‟s medical appointments, stating that
she had confused the locations and times. Although Mother participated in unsupervised
visitation for a period of time, the unsupervised visits were discontinued because the
Child was not properly receiving his medications.

After four years, Mother was still unable to demonstrate that she understood the
Child‟s medical condition and unable to care for the Child‟s medical needs. Dr. Massey
determined in her psychological evaluation that Mother had only a “very superficial
level” of understanding regarding the Child‟s medical condition. We conclude that the
evidence does not preponderate against the trial court‟s finding by clear and convincing
evidence that Mother failed to substantially comply with the requirements of the
permanency plans.
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 B. Mental Incompetence to Adequately Care for the Child

Mother also contends that the trial court erred by terminating her parental rights
based upon the statutory ground of mental incompetence to adequately care for the Child.
Tennessee Code Annotated § 36-1-113(g)(8) provides as an additional ground for
termination:

(8)(A) The chancery and circuit courts shall have jurisdiction in an
adoption proceeding, and the chancery, circuit, and juvenile courts shall
have jurisdiction in a separate, independent proceeding conducted prior to
an adoption proceeding to determine if the parent or guardian is mentally
incompetent to provide for the further care and supervision of the child, and
to terminate that parent‟s or guardian‟s rights to the child;

(B) The court may terminate the parental or guardianship rights of that
person if it determines on the basis of clear and convincing evidence that:

(i) The parent or guardian of the child is incompetent to adequately
provide for the further care and supervision of the child because the
parent‟s or guardian‟s mental condition is presently so impaired and
is so likely to remain so that it is unlikely that the parent or guardian
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 or guardian rights is in the best
interest of the child;

(C) In the circumstances described under subdivisions (8)(A) and (B), no
willfulness in the failure of the parent or guardian to establish the parent‟s
or guardian‟s ability to care for the child need be shown to establish that the
parental or guardianship rights should be terminated[.]

The General Assembly‟s exclusion of willfulness from this statutory ground “serves to
protect children from harm caused by a parent who is incapable of safely caring for
them.” See In re D.A.P., No. E2007-02567-COA-R3-PT, 2008 WL 2687569, at *5
(Tenn. Ct. App. July 9, 2008). If willfulness were required in order to terminate parental
rights for mental incompetence, “an obvious result . . . is to condemn a child, whose
parents are unfit to properly care for the child because of mental illness, to a life in serial
foster homes without any possibility of a stable, permanent home.” See State, Dep’t of
Human Servs. v. Smith, 785 S.W.2d 336, 338 (Tenn. 1990).
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 In its final judgment, the trial court stated specific findings of fact regarding this
statutory ground as follows in relevant part:

Pursuant to Tennessee Code Annotated section 36-1-113(g)(8),
[Mother is] incompetent to adequately provide for the further care and
supervision of the child because [her] mental condition [is] presently so
impaired and is so likely to remain so that it is unlikely that [Mother] will
be able to assume or resume the care of and responsibility for the child in
the near future. Dr. Lashunda Massey, clinical psychologist, testified that
she completed a psychological evaluation on [Mother] on December 22,
2014.

Dr. Massey testified that based on her assessment of [Mother] and as
recommended in her written psychological evaluation that “despite her love
for her children and her desire to reunite her family, [Mother] does not have
the capacity to parent independently or to co-parent effectively with
[Father] based on her borderline level of intellectual functioning, limited
adaptive functioning skills, and problems with emotional regulation.
[Mother] has limited insight in regards to her functional limits and that is an
additional barrier to her appropriate functioning. [Mother] has
demonstrated limited understanding of [the Child‟s] significant problems
and medical needs. She has not learned to properly administer his
medication. Returning [the Child] to her care would place this medically
fragile child at risk.”

(Section and paragraph numbering omitted.)

In determining that Mother was mentally incompetent to adequately provide for
the further care of the Child, the trial court relied heavily on Mother‟s psychological
evaluation performed by Dr. Massey. Accordingly, “[w]e may infer the trial court‟s
findings on issues of credibility and weight of testimony from the manner in which the
trial court resolved conflicts in the testimony and decided the case.” In re Sidney J., 313
S.W.3d 772, 777 (Tenn. 2010). Any credibility determinations by the trial court will be
provided great deference on appeal. See Jones, 92 S.W.3d at 838. Dr. Massey
acknowledged that Mother desired to care for the Child. When questioned at trial, she
opined, however, that Mother did not have the mental competency to adequately care for
the Child and that Mother‟s impaired mental condition could not be overcome.

The trial court‟s determination regarding Mother‟s mental incompetence is also
supported by the unsuccessful, unsupervised visits by Mother. The testimony of Ms.
15
Gary established that the Child returned from these visits soiled, dirty, pale, and “a little
bit off balance.” Testing of the Child‟s blood before and after the unsupervised visits
with Mother evinced that the Child‟s medications were not being properly administered
during the visits. According to Ms. Gary, an essential element of the Child‟s medical
care is that his caretaker properly administer his medications.

Following a thorough review of the record, we conclude that the evidence does not
preponderate against the trial court‟s finding by clear and convincing evidence that
Mother was incompetent to adequately provide for the care and supervision of the Child.
Mother‟s mental condition is presently and is likely to remain so impaired that it is
unlikely Mother will be able to assume care of and responsibility for the Child in the near
future. Therefore, we affirm the termination of Mother‟s parental rights based on the
statutory ground of mental incompetence to adequately care for the Child.

C. Persistence of Conditions

Mother further contends that the trial court erred by terminating her parental rights
based upon the statutory ground of persistence of conditions leading to removal of the
Child. Tennessee Code Annotated § 36-1-113(g)(3) provides as an additional ground for
termination of parental rights:

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 or parents or the guardian or guardians, 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 or parents or the guardian or guardians
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[.]

In its final judgment, the trial court included specific findings of fact regarding this
statutory ground as follows in pertinent part:
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 Pursuant to Tennessee Code Annotated section 36-1-113(g)(3), [the
Child] has been in the custody of the State of Tennessee, Department of
Children‟s Services for more than six (6) months preceding the filing of this
petition, and the conditions which led to removal still persist and other
conditions exist which in all probability would cause the child to be
subjected to further abuse and neglect and which, therefore, prevent the
child‟s safe return to the care of [Mother]. Further, there is little likelihood
that these conditions will be remedied at an early date so that the child can
be safely returned to [Mother] in the near future; the continuation of the
legal parent and child relationship greatly diminishes the child‟s chances of
early integration into a safe, stable and permanent home; and continuation
of the legal parent and child relationship is not in said child‟s best interest.

As the record reflects and the trial court found, the Child was removed from the
custody of Mother on August 8, 2011, due in part to psychological harm to the Child and
his siblings and also by reason of Mother‟s mental condition, which had resulted in
Mother‟s inability to care for the Child. The trial court adjudicated the Child to be
dependent and neglected on January 27, 2012, at which time the trial court also found
that “it was reasonable not to make efforts to maintain the child in the home due to
psychological harm to the child while in the custody of his parents and that the parents
have failed to provide appropriate parenting and counseling for the child to address his
special needs.”

Despite Mother‟s genuine desire to care for the Child, she has failed to
demonstrate an ability to care for the Child and his medical condition during the four
years the Child has been in state custody prior to trial. As we have already determined in
this Opinion, the evidence preponderates in favor of the trial court‟s findings that
Mother‟s incapacity rendered her mentally incompetent to care for the Child and that
Mother had not demonstrated an ability to care for the Child‟s medical condition in
compliance with the permanency plans. Dr. Massey determined in her evaluation that
Mother is unable mentally to care for the Child and that it is unlikely Mother would be
able to overcome this obstacle to a level where she would be able to care for the Child.
Continuation of the parent/child relationship would therefore greatly diminish the Child‟s
chances of integration into a safe and stable, permanent home.

This Court has previously determined that the ground of persistence of conditions
can be based on a parent‟s mental incapacity. See In re B.S.G., No. E2006-02314-COA-
R3-PT, 2007 WL 1514958, at *7 (Tenn. Ct. App. May 24, 2007) (“A parent‟s mental
incapacity can provide a sufficient factual predicate for a finding that persistent
unremedied conditions exist which prevent the safe return of the child or children to that
17
parent‟s care.”). Following a thorough review of the record, we conclude that the
evidence supports the trial court‟s determination that DCS has proven the ground of
persistence of conditions by clear and convincing evidence. The trial court properly
terminated Mother‟s parental rights based on this statutory ground.

VI. Best Interest of the Child

When a parent has been found to be unfit by establishment of at least one statutory
ground for termination of parental rights, as here, the interests of parent and child
diverge, and the focus shifts to what is in the child‟s best interest. In re Audrey S., 182
S.W.3d 838, 877 (Tenn. Ct. App. 2005); see also In re Carrington H., 483 S.W.3d at 507,
523 (Tenn. 2016) (“„The best interests analysis is separate from and subsequent to the
determination that there is clear and convincing evidence of grounds for termination.‟”)
(quoting In re Angela E., 303 S.W.3d 240, 254 (Tenn. 2010)). Tennessee Code
Annotated § 36-1-113(i) (Supp. 2016) provides a list of factors the trial court is to
consider when determining if termination of parental rights is in a child‟s best interest.
This list is not exhaustive, and the statute does not require the court to find the existence
of every factor before concluding that termination is in a child‟s best interest. See In re
Carrington H., 483 S.W.3d at 523; In re Audrey S., 182 S.W.3d at 878 (“The relevancy
and weight to be given each factor depends on the unique facts of each case.”).
Furthermore, the best interest of a child must be determined from the child‟s perspective
and not the parent‟s. White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).

Tennessee Code Annotated § 36-1-113(i) lists the following factors for
consideration:

(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;

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 (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, controlled substances
or controlled substance analogues 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.

The trial court made the following findings of fact concerning the best interest
analysis in pertinent part:

Pursuant to Tennessee Code Annotated section 36-1-113(i)(1), the
Court finds termination of parental rights is in the best interest of [the
Child] in that [Mother has] failed to make such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child‟s
best interest to be in [her] home.

Pursuant to Tennessee Code Annotated section 36-1-113(i)(2), the
Court finds termination of parental rights in the best interest of [the Child]
in that [Mother has] failed to effect a lasting adjustment after reasonable
efforts were made by [DCS] for an extended period of time and that lasting
adjustment does not appear reasonably possible.

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 The Court notes pursuant to Tennessee Code Annotated section 36-
1-113(i)(3) that [Mother has] maintained regular visitation with the child
and that there is no dispute that [she] love[s her] child.

Pursuant to Tennessee Code Annotated section 36-1-113(i)(4), the
Court finds termination of parental rights in the best interest of [the Child]
in that a meaningful relationship has not been established between [Mother]
and the child.

Pursuant to Tennessee Code Annotated section 36-1-113(i)(5), the
Court finds termination of parental rights in the best interest of [the Child]
in that a change of caretakers and physical environment is likely to have a
traumatic effect on the child‟s emotional, psychological and/or medical
condition. The Court specifically finds that this factor weighs heavily in
this case as a failure of the child‟s caretaker to provide adequate care for the
child would cause grave danger.

Pursuant to Tennessee Code Annotated section 36-1-113(i)(6), the
Court finds termination of parental rights in the best interest of [the Child]
in that [Mother] has shown physical and emotional abuse towards [Father].

Pursuant to Tennessee Code Annotated section 36-1-113(i)(7), the
Court finds termination of parental rights in the best interest of [the Child]
in that the physical environment of [Mother‟s] home[] is not healthy and
safe. The Court notes that the foster mother testified about the great lengths
she undertook to provide a safe home for [the Child] and the Court finds
such undertakings would be overwhelming for [Mother].

Pursuant to Tennessee Code Annotated section 36-1-113(i)(8), the
Court finds termination of parental rights in the best interest of [the Child]
in that [Mother‟s] mental status would be detrimental to the child and
prevent [Mother] from effectively providing safe and stable care and
supervision for the child. The Court finds that this factor weighs heavily in
favor of termination.

The Court is not making a best interest finding pursuant to
Tennessee Code Annotated section 36-1-113(i)(9), as no testimony was
presented regarding [Mother‟s] payment of child support.

(Section and paragraph numbering omitted.)

20
 The trial court thus found that all statutory factors weighed in favor of terminating
Mother‟s parental rights, except for factor three regarding visitation, which Mother had
maintained, and factor nine regarding child support, which did not apply. See Tenn.
Code Ann. § 36-1-113(i). We agree. The trial court found that Mother was mentally
incompetent to safely care for the Child, notwithstanding four years of efforts by DCS
and service providers. According to Dr. Massey, Mother‟s mental condition could not be
overcome such that she would be able to care for the Child. The Child‟s autism and
severe seizure disorder demands a caretaker who is able to properly administer his
medications. The trial court also considered the guardian ad litem‟s recommendation that
Mother‟s parental rights to the Child be terminated.

According to Ms. Gary, the Child was thriving with his foster parents, who
intended to adopt him. The foster mother elaborated regarding the Child‟s medical
conditions, describing how her family was able to care for him. The trial court
recognized the “great lengths [the foster mother] undertook to provide a safe home for
[the Child]” and further found that “such undertakings would be overwhelming for
[Mother].” The court further emphasized that the change of caregiver and physical
environment would have a detrimental effect on the Child because “failure of the child‟s
caretaker to provide adequate care for the child would cause grave danger.” The trial
court recognized that Mother loved the Child but ultimately determined that termination
of Mother‟s parental rights was in the Child‟s best interest.

The record demonstrates that the trial court properly analyzed the factors in
Tennessee Code Annotated § 36-1-113(i) when determining that termination of Mother‟s
parental rights was in the best interest of the Child. Following our thorough review of the
record, we conclude that the evidence does not preponderate against the trial court‟s
finding by clear and convincing evidence that termination of Mother‟s parental rights was
in the Child‟s best interest.

VII. Conclusion

For the foregoing reasons, we affirm the trial court‟s judgment terminating
Mother‟s parental rights to the Child. This case is remanded to the trial court, pursuant to
applicable law, for enforcement of the trial court‟s judgment and collection of costs
assessed below. Costs on appeal are assessed to the appellant, Jill H.

_________________________________
THOMAS R. FRIERSON, II, JUDGE

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