See, e.g., In re A.W., 114 S.W.3d 541, 546 (Tenn. Ct. App. 2003) (noting within the context of the statutory ground of substantial noncompliance that improvements made after the filing of the termination petition may be "too little, too late" and that a court is not required "to defer a decision so that the mother [can] have more time to demonstrate that her improvement [is] permanent.") (citing State v. Pruitt, No. M2000-00416-COA-R3-CV, 2000 WL 827957, at *8 (Tenn. Ct. App. June 27, 2000)). We determine that the trial court did not err in terminating Mother's parental rights upon clear and convincing evidence of the statutory ground of failure to substantially comply with the permanency plans.
This "too little, too late" concept is often used to describe parents who, despite having an abundance of time and resources, wait until shortly before their termination hearing and then hurriedly try to comply with the obligations in their permanency plans. In re A.R.G., No. M2004-00894-COA-R3-PT, 2005 WL 457282, at *5 (Tenn.Ct.App., Feb. 25, 2005) (No Tenn. R. App. P. 11 application filed) (citing In re A.W., 114 S.W.3d at 541; State v. Pruitt, No. M2000-00416-COA-R3-CV, 2000 WL 827957, at *29-30 (Tenn.Ct.App. June 27, 2000) (No Tenn. R. App. P. 11 application filed)). While the concept has merit in proper circumstances, the courts should not permit the Department to use it as a convenient way to circumvent its obligation to continue to provide reasonable support to a parent during the permanency plan's rehabilitation period.
Her new-found reformation is simply, in the words of the guardian ad litem, "too little-too late". In re A.W., 114 S.W.3d 541 (Tenn.Ct.App. 2003); State v. Pruitt, No. M2000-00416-COA-R3-CV, 2000 WL 827957 (Tenn.Ct.App. June 27, 2000). While the right of a natural parent in a termination proceeding is a fundamental one and may not be abridged in the absence of clear and convincing evidence, Santosky v. Kramer, 455 U.S. 745, 748, (1982), it is not an absolute right. The evidence presented in this case is clear and convincing as to both failure to follow the permanency plan and persistence of conditions that led to the child's removal.
As to the "too late" conclusion, we also concur. In State v. Pruitt, No. M2000-00416-COA-R3-CV (Tenn.Ct.App. June 27, 2000), we were confronted with a mother who refused to take her medication until two months before the trial. Although the medication helped her mental condition, the court held that nothing in the statutes or the common law required the court to defer a decision so that the mother could have more time to demonstrate that her improvement was permanent.
The issue is whether or not allowing only twelve days between appointment and the hearing denied to the parties their right to effective assistance of counsel. We addressed a similar issue in State v. Pruitt, In re A.J.P., 2000 WL 827957 (Tenn.Ct.App. 2000). In Pruitt, the mother's counsel was appointed two months before the trial on termination of her parental rights.
Swanson, 2 S.W.3d at 188. The best interest analysis has been considered the equivalent of a determination of whether substantial harm will result to the child if parental rights are not terminated. See State v. Pruitt, No. M2000-00416-COA-R3-CV, 2000 WL 827957 at *11 (Tenn.Ct.App. June 27, 2000) (no Tenn.R.App.P. 11 application filed) (best interests of child required termination because substantial harm would result otherwise); Bryant v. Bryant, No. M1999-01280-COA-R3-CV, 2000 WL 1483217 at *6 (Tenn.Ct.App. Oct. 10, 2000) (no Tenn.R.App.P. 11 application filed) ("parental rights may be terminated only when continuing the parent-child relationship poses a substantial threat of harm to the child"). Because the law requires both grounds and a determination of best interest, it cannot be presumed that the existence of grounds necessarily leads to the conclusion that termination is warranted. Termination of a person's constitutionally-protected rights to parent a child requires an individualized consideration based on the facts of a particular situation, including an individualized determination of a child's best interest.