In Re E.C. ( 2017 )

06/06/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 1, 2017
IN RE E.C.
Appeal from the Juvenile Court for Washington County
No. 47-409 Sharon M. Green, Judge
___________________________________
No. E2016-02582-COA-R3-PT
___________________________________
In this termination of parental rights action, Father’s parental rights were terminated
based on the following grounds: (1) failure to manifest an ability and willingness to
assume legal and physical custody of the child; (2) that placing the child in Father’s legal
and physical custody would pose a risk of substantial harm to the child’s physical and
psychological welfare; (3) failure to establish or exercise paternity; and (4) abandonment
by wanton disregard for the welfare of the child. We affirm the grounds of failure to
manifest an ability and willingness to assume legal and physical custody of the child and
failure to establish or exercise paternity. However, we reverse with respect to the
remaining grounds. We also affirm the trial court’s determination that termination of
Father’s parental rights is in the best interest of the child. Affirmed in part, reversed in
part, and remanded.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed in
Part; Reversed in Part; and Remanded
J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ANDY D. BENNETT, J., joined.
Rachel Ratliff, Johnson City, Tennessee, for the appellant, Michael B.
Herbert H. Slatery, III, Attorney General and Reporter; Jordan K. Crews, Assistant
Attorney General, for the appellee, State of Tennessee, Department of Children’s
Services.
OPINION
BACKGROUND
Michael B. (“Father”) is the biological father of E.C. (“the child”), born in
February 2015, who is the subject of this termination proceeding.1 The child’s mother,
Crystal C. (“Mother”) has previously surrendered her parental rights to the child. As a
result, Mother is not a party to this appeal.
Prior to the child’s birth, on January 23, 2014, Father pled guilty to two counts of
promotion of methamphetamine manufacture and one count of initiating the process to
manufacture methamphetamine in the Carter County Criminal Court (“criminal court”).
The offense dates for these convictions occurred on March 30, 2013; April 5, 2013; and
May 4, 2013. With respect to the conviction of two counts of promotion of
methamphetamine manufacture, Father was sentenced to two years of supervised
probation. With respect to the conviction of one count of initiating the process to
manufacture methamphetamine, Father was sentenced to nine years of supervised
probation to run concurrently with his other convictions.
On February 28, 2014, Father was released from jail and began serving his fully
probated sentence for the aforementioned convictions. As a condition of his probation,
Father was required to participate in drug testing. At some point after being placed on
probation but prior to the child’s birth, Father violated his probation by testing positive
for cocaine and opiates. It appears that Father evaded law enforcement for a time;
accordingly, an order revoking Father’s probation based on his positive drug screen for
cocaine and opiates was not entered until May 27, 2015, over a year later. The order
revoking his probation was therefore also based on the fact that Father had absconded.
Father was subsequently released from incarceration on house arrest and remained out of
jail for thirty-five days.2 As a condition of both his release and probation, Father was to
report to community corrections for intake on June 3, 2015; however, Father failed to do
so. On June 22, 2015, a warrant was issued for Father’s arrest for his failure to report to
community corrections and for absconding. On July 9, 2015, Father was arrested on the
warrant. On October 12, 2015, the criminal court revoked the community corrections
sentence because Father was found to have violated his probation for “fail[ure] to report
for intake on June 3, 2015” and for “abscond[ing] from community corrections.” As a
result, Father was sentenced to serve his nine-year sentence in the Tennessee Department
of Corrections as a standard offender at thirty-percent. The Tennessee felony offender
1
In cases involving termination of parental rights, it is the policy of this Court to remove the names of
minor children and other parties in order to protect their identities.
2
Father testified that he was released on May 27, 2015. However, the warrant for his arrest shows that
Father was re-arrested on July 9, 2015. The period of time between May 27, 2015, and July 9, 2015, is
longer than thirty-five days. At trial, the parties repeatedly referred to the period of time that Father was
out of jail in 2015 as the thirty-five day period. It is possible that the parties began the count on June 4,
2015, the day after Father failed to report for intake. Regardless of when Father was released, we will
refer to the period of time that Father remained out of jail in 2015 as the thirty-five day period for
consistency.
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registry lists Father’s next parole hearing for December 2018, with a release date of
October 1, 2023.
In the meantime, the child was born in February 2015. During the period of time
that Father was evading law enforcement on his first probation violation, the record is
unclear as to his knowledge of the conception and birth of the child. The child’s birth
certificate does not list a father. The Tennessee Department of Children’s Services
(“DCS”) filed a petition for temporary legal custody of the child on August 24, 2015,
based on allegations of “drug-expos[ure], lack of supervision, and physical abuse.” On
August 25, 2015, while Father was incarcerated, the Johnson City Juvenile Court (“trial
court”) issued an emergency protective custody order, removing the child from Mother’s
home and placing her into the custody of DCS for foster care. On December 11, 2015,
DNA testing was completed, confirming Father as the child’s biological parent, but no
order establishing paternity was entered until August 5, 2016. The child was adjudicated
dependent and neglected on December 16, 2015, based on Father’s stipulation.
On June 29, 2016, DCS petitioned to terminate Father’s the parental rights to the
child. The petition alleged the following grounds for termination: (1) persistence of
conditions; (2) abandonment by wanton disregard; and (3) failure to establish/exercise
paternity.3 On September 13, 2016, Father filed an answer to the petition to terminate
parental rights, denying all material allegations. A bench trial was conducted on
November 22, 2016, with Father participating by telephone.
Jacosha Alexander, a DCS caseworker assigned to the matter, testified that, prior
to the filing of the termination petition, Ms. Alexander consulted the putative father
registry and confirmed that only Father claimed paternity to the child. According to Ms.
Alexander, the child had been in DCS custody continuously for sixteen months as of the
date of trial. Ms. Alexander testified that two child protective services cases were
initiated prior to the removal of the child from the home and that Father was incarcerated
at the time of both referrals.4
Ms. Alexander also testified that Father had not yet completed any substance
abuse treatment because he was still on the waiting list but conceded on cross-
examination that there was nothing Father could do to expedite the process. As of the
date of the filing of the termination petition, Ms. Alexander testified that Father had not
3
In the body of the termination petition, DCS appears to have alleged all of the grounds under Tennessee
Code Annotated section 36-1-113(g)(9)(A) against Father. We note that throughout the prior proceedings
and in the court documents, DCS and the trial court grouped and referred to all of the grounds under
Tennessee Code Annotated section 36-1-113(g)(9)(A) as “failure to establish/exercise paternity” even
though failure to establish paternity is only one of six grounds under Tennessee Code Annotated section
36-1-113(g)(9)(A). However, for clarity, we will list each of the separate grounds actually relied upon
and referred to under Tennessee Code Annotated section 36-1-113(g)(9)(A) later in this Opinion.
4
The record is unclear as to the exact dates when these cases were initiated.
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been visiting with the child, had not manifested a willingness and ability to take custody
of the child, and did not file a petition to establish paternity after he claimed to be the
child’s father. When asked whether Ms. Alexander had concerns that placing the child in
Father’s custody would pose a risk of substantial harm to the child’s physical and
psychological welfare, Ms. Alexander responded in the affirmative. Ms. Alexander also
expressed concerns that Father “may [have] two holds in Florida” and that Father would
not be released until December 2018 at the earliest, when the child would be turning four
years old. Ms. Alexander testified that she kept Father updated on how the child was
doing and sent him pictures of the child. Ms. Alexander conceded on cross-examination
that Father had repeatedly told her that he would like to have custody of the child upon
his release.
Ms. Alexander testified that the child was currently in a pre-adoptive home and
had been in the same foster home the entire duration of her stay in DSC custody. Based
on Ms. Alexander’s observations of the foster home, which she visits twice a month, the
child is “very happy, healthy[,] and bouncing around,” the child is “doing really well,”
and the child has bonded with the foster parents. According to Ms. Alexander, the child
would be negatively impacted if she were to be moved from the foster home.
Brittany Killebrew, the foster mother for the child, testified that the child had been
in her home for sixteen months, the amount of time that the child had been in DCS
custody. According to Ms. Killebrew, the child is doing very well in her and her
husband’s care and has her own room and toys in their home. Ms. Killebrew testified
that the child attends day care, never misses any of her various medical appointments,
and spends time with their extended family. Ms. Killebrew also testified that the child
calls her and her husband mom and dad and that they love the child very much. If the
child were made available for adoption, Ms. Killebrew testified that she and her husband
would move forward with adopting the child.
Father testified that he first violated his probation “several days” after he was first
released from jail on February 28, 2014, for failing a drug screen. Although this first
violation occurred a year before the child was even born, Father was not charged with the
violation until May 27, 2015, three months after the child’s birth. According to Father,
the only bad conduct that occurred after he learned of the child’s birth was the violation
of his house arrest subsequent to his release on May 27, 2015, based on his failure to
report for intake on June 3, 2015. Father explained that he already filled out a home plan
for his parole to be served at his parents’ house, and his mother had already given her
permission. However, Father testified:
The only . . . thing I violated was the house arrest when I got out [o]n May
27th, I believe, and that’s only because I didn’t have nowhere to go because
. . . my mom and dad were on vacation at the time and me and [Mother]
were no longer together and I couldn’t go there, but I did go over and visit
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the [child] every day and make sure she had diapers and bought her a swing
and brought her clothes and, and whatever else she needed, up until that
point where they violated my house arrest for not reporting.
Father admitted on cross-examination that he knew the child was his daughter at
this time. According to Father, he and Mother planned to go to city hall to get the child’s
birth certificate “straightened out” but never had the chance because the warrant was
issued for his failure to report for intake. Father admitted that he knew that failing to
report to his probation officer would result in his incarceration; however, Father
maintained that his “hands were tied” because he “had nowhere to go.”
Father testified that, upon his release, he would automatically receive a check for
his disability and would be allowed to work a part-time job. According to Father, he
would stay with his parents in their four-bedroom house. Father testified that he was
informed he would make parole if he received no write-ups and maintained good
behavior.5 Father testified that he wants to be a father to the child and that he will have
the ability to do so upon his release from incarceration. Father asserted that he wrote
letters to the foster parents asking for updates and pictures of the child; however, other
than the one picture that Ms. Alexander sent to him, Father had not received any
correspondence from the foster parents.
The court issued an oral ruling at the conclusion of trial and subsequently
memorialized its ruling in a written order on December 13, 2016. Therein, the trial court
first dismissed the ground of persistence of conditions because Father was incarcerated
when the child was removed from Mother’s home into DCS custody. The trial court then
terminated Father’s parental rights on the following grounds: (1) failure to manifest an
ability and willingness to assume legal and physical custody of the child; (2) that placing
the child in Father’s legal and physical custody would pose a risk of substantial harm to
the child’s physical and psychological welfare; (3) failure to establish or exercise
paternity; and (4) abandonment by wanton disregard for the welfare of the child.6 The
5
According to Father, at his first parole hearing, the parole officer told him she would put him off for
eighteen months, which would have made his eligibility date in 2017. However, Father testified that the
officer entered 2018 into the computer instead of eighteen months, and Father purportedly filed an appeal
on his parole to get this changed.
6
Although DCS appears to have alleged all six grounds under Tennessee Code Annotated section 36-1-
113(g)(9)(A) in the termination petition, as discussed in footnote 3, the trial court orally ruled that “the
subsections of [Tennessee Code Annotated section 36-1-113(g)(9)(A)] which are applicable to the facts in
this case are that [Father] has failed to manifest an ability and willingness to assume legal and physical
custody of the child” pursuant to Tennessee Code Annotated section 36-1-113(g)(9)(A)(iv); “placing
custody of the child [in] [Father’s] legal and physical custody would pos[e] a risk of substantial harm to
the physical or psychological welfare of the child” pursuant to Tennessee Code Annotated section 36-1-
113(g)(9)(A)(v); and Father “has failed to file a petition to establish paternity of the child within thirty
days after notice of the alleged paternity” pursuant to Tennessee Code Annotated section 36-1-
113(g)(9)(A)(vi). Accordingly, the trial court appears to have rejected the first three grounds under
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trial court also determined that termination was in the child’s best interest. Father
appealed.
ISSUES
Father raises the following issues for our review, which we have slightly restated:
1. Whether the trial court properly determined that grounds existed to
terminate Father’s parental rights.
A. Father failed to manifest an ability and willingness to assume
legal and physical custody of the child.
B. Placing the child in Father’s legal and physical custody would
pose a risk of substantial harm to the child’s physical and
psychological welfare
C. Father failed to establish or exercise paternity.
D. Father abandoned the child by wanton disregard.
2. Whether the trial court properly determined that termination of Father’s
parental rights was in the best interests of the minor child.
STANDARD OF REVIEW
As explained by the Tennessee Supreme Court:
A parent’s right to the care and custody of her child is among the oldest of
the judicially recognized fundamental liberty interests protected by the Due
Process Clauses of the federal and state constitutions. Troxel v. Granville,
530 U.S. 57, 65 (2000); Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re
Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female
child, 896 S.W.2d 546, 547–48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d
573, 578–79 (Tenn. 1993). But parental rights, although fundamental and
constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at
250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors . .
. .’ Tennessee law, thus, upholds the [S]tate’s authority as parens patriae
when interference with parenting is necessary to prevent serious harm to a
child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d
Tennessee Code Annotated section 36-1-113(g)(9)(A). DCS does not challenge the trial court’s finding
that it failed to prove the first three grounds under Tennessee Code Annotated section 36-1-113(g)(9)(A).
The Tennessee Supreme Court in In re Carrington H., 483 S.W.3d 507 (Tenn. 2016), ruled that this
Court must consider all of the grounds found by the trial court, “regardless of whether the parent
challenges these findings on appeal.” Id. at 525–26 (emphasis added). The rule adopted in In re
Carrington H. has never been construed to require this Court to also consider the grounds not sustained
by the trial court and thereafter not appealed by the non-parent. Accordingly, we will only consider the
grounds found by the trial court and appealed by Father in this case.
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425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S.
745, 747 (1982); In re Angela E., 303 S.W.3d at 250.
In re Carrington H., 483 S.W.3d 507, 522–23 (Tenn. 2016) (footnote omitted).
Our termination statutes identify “those situations in which the state’s interest in
the welfare of a child justifies interference with a parent’s constitutional rights by setting
forth grounds on which termination proceedings can be brought.” In re Jacobe M.J., 434
S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting In re W.B., Nos. M2004-00999-COA-
R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29,
2005)). A person seeking to terminate parental rights must prove both the existence of
one of the statutory grounds for termination and that termination is in the child’s best
interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn.
2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
Because of the fundamental nature of the parent’s rights and the grave
consequences of the termination of those rights, courts must require a higher standard of
proof in deciding termination cases. Santosky, 455 U.S. at 769. Consequently, both the
grounds for termination and the best interest inquiry must be established by clear and
convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at
546. Clear and convincing evidence “establishes that the truth of the facts asserted is
highly probable . . . and eliminates any serious or substantial doubt about the correctness
of the conclusions drawn from the evidence.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn.
Ct. App. 2004). Such evidence “produces in a fact-finder’s mind a firm belief or
conviction regarding the truth of the facts sought to be established.” Id. at 653.
As opined by the Tennessee Supreme Court:
The trial court’s ruling that the evidence sufficiently supports termination
of parental rights is a conclusion of law, which appellate courts review de
novo with no presumption of correctness. In re M.L.P., 281 S.W.3d [387,]
393 [(Tenn. Ct. App. 2009)] (quoting In re Adoption of A.M.H., 215
S.W.3d [793], 810 [(Tenn. 2007)]). Additionally, all other questions of law
in parental termination appeals, as in other appeals, are reviewed de novo
with no presumption of correctness. In re Angela E., 303 S.W.3d at 246.
In re Carrington H., 2016 WL 819593, at *12.
When the resolution of an issue in a case depends upon the truthfulness of
witnesses, the trial judge, who has had the opportunity to observe the witnesses and their
manner and demeanor while testifying, is in a far better position than this Court to decide
those issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995);
Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The weight, faith,
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and credit to be given to any witness’s testimony lies in the first instance with the trier of
fact, and the credibility accorded will be given great weight by the appellate court.
Walton v. Young, 950 S.W.2d 956, 959 (Tenn. 1997).
DISCUSSION
Grounds for Termination
The trial court found four grounds for terminating Father’s parental rights: (1)
failure to manifest an ability and willingness to assume legal and physical custody of the
child pursuant to Tennessee Code Annotated section 36-1-113(g)(9)(A)(iv); (2) placing
custody of the child in the person’s legal and physical custody would pose a risk of
substantial harm to the physical or psychological welfare of the child pursuant to
Tennessee Code Annotated section 36-1-113(g)(9)(A)(v); (3) failure to file a petition to
establish paternity of the child pursuant to Tennessee Code Annotated section 36-1-
113(g)(9)(A)(vi); and (4) abandonment by wanton disregard for the welfare of the child.
We begin our discussion with the first three grounds pursuant to Tennessee Code
Annotated section 36-1-113(g)(9)(A), applicable to putative, non-legal fathers.
Tennessee Code Annotated Section 36-1-113(g)(9)(A) Grounds
Tennessee Code Annotated section 36-1-113(g)(9)(A) provides additional grounds
for termination applicable to putative fathers, in relevant part:
(9)(A) The parental rights of any person who, at the time of the filing of a
petition to terminate the parental rights of such person, . . . is the putative
father of the child may also be terminated based upon any one (1) or more
of the following additional grounds:
***
(iv) The person has failed to manifest an ability and willingness to assume
legal and physical custody of the child;
(v) Placing custody of the child in the person’s legal and physical custody
would pose a risk of substantial harm to the physical or psychological
welfare of the child; or
(vi) The person has failed to file a petition to establish paternity of the child
within thirty (30) days after notice of alleged paternity, or as required in §
36-2-318(j), or after making a claim of paternity pursuant to § 36-1-
117(c)(3)[.]
Tenn. Code Ann. § 36-1-113(g)(9)(A). Prior to March 2016, under the previous version
of the statute, there was some question regarding whether these additional grounds were
applicable to putative fathers. See In re Bernard T., 319 S.W.3d 586, 599 (Tenn. 2010)
(citing In re D.A.H., 142 S.W.3d 267, 272–73 (Tenn. 2004)) (“The grounds for
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termination in Tenn. Code Ann. § 36-1-113(g)(9) cannot be used to terminate the rights
of a person who is a child’s biological parent, legal parent, or putative biological father at
the time the termination petition is filed.”). But see In re Dixie M.M., No. M2012-01226-
COA-R3-PT, 2012 WL 4474155, at *8 (Tenn. Ct. App. Sept. 27, 2012) (affirming the
trial court’s termination of the putative father’s parental rights on the ground of failure to
seek reasonable visitation with the child pursuant to Tennessee Code Annotated section
36-1-113(g)(9)(A)(iii)). On March 23, 2016, the legislature amended the wording of the
statute to explicitly state that these additional grounds applied to “the putative father of
the child.” See 2016 Pub. Acts, c. 636, § 5, eff. Mar. 23, 2016.
Here, the trial court found that the petition to terminate parental rights was filed
after the legislature amended the statute. Because neither party disputes the trial court’s
finding that the current version of section 36-1-113(g)(9) applies in this case, we will
assume that the March 2016 amendment is applicable here.
In order to determine whether clear and convincing evidence exists to terminate
Father’s parental rights under section 36-1-113(g)(9)(A), we must first determine whether
Father is a putative father. A “putative father” is statutorily defined as follows:
(43) “Putative father” means a biological or alleged biological father of a
child who, at the time of the filing of a petition to terminate the parental
rights of such person . . . meets at least one (1) of the criteria set out in §
36-1-117(c) and is not a legal parent[.]
Tenn. Code Ann. § 36-1-102(43). Pursuant to Tennessee Code Annotated section 36-1-
117(c), in relevant part:
(c) The parental rights of the putative father of a child who has not filed a
petition to establish paternity of the child or who has not established
paternity of the child who is the subject of an adoption proceeding and who
meets any of the following criteria shall be terminated by surrender,
parental consent, termination of parental rights pursuant to § 36-1-113, or
by waiver of interest, before the court may enter an order of adoption
concerning that child:
* * *
(2) The biological father has been specifically identified to the petitioners
or their attorney, or to the department, the licensed child-placing agency, or
the licensed clinical social worker involved in the care, placement,
supervision, or study of the child as the child’s father by the child’s
biological mother in a sworn, written statement or by other information that
the court determines to be credible and reliable[.]
Tenn. Code Ann. § 36-1-117(c).
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Here, the trial court found that Father is a putative father for purposes of the
termination proceedings because Mother identified Father as the child’s father to DCS,
and it is undisputed that Father did not qualify as a legal parent at the time of the filing of
the termination petition.7 The record shows that the DNA testing was completed on
December 11, 2015, and the trial court entered an order establishing paternity on August
5, 2016, before the hearing on the termination petition took place.8 In addition, no father
is listed on the child’s birth certificate, and there is evidence that only Father claimed
paternity to the child. Indeed, only Father’s name is listed on the putative father registry.
As such, there is “credible and reliable” evidence that the trial court could rely on in
order to classify Father as a putative father, and the trial court properly classified Father
as a putative father for purposes of the termination proceedings.
Father asserts, however, that DCS’s failure to exert reasonable efforts to help him
establish paternity contributed to his status as merely a putative father at the time the
7
A legal parent is defined as:
(28)(A) “Legal parent” means:
(i) The biological mother of a child;
(ii) A man who is or has been married to the biological mother of the child if the child
was born during the marriage or within three hundred (300) days after the marriage was
terminated for any reason, or if the child was born after a decree of separation was
entered by a court;
(iii) A man who attempted to marry the biological mother of the child before the child’s
birth by a marriage apparently in compliance with the law, even if the marriage is
declared invalid, if the child was born during the attempted marriage or within three
hundred (300) days after the termination of the attempted marriage for any reason;
(iv) A man who has been adjudicated to be the legal father of the child by any court or
administrative body of this state or any other state or territory or foreign country or who
has signed, pursuant to §§ 24-7-113, 68-3-203(g), 68-3-302 or 68-3-305(b), an unrevoked
and sworn acknowledgment of paternity under Tennessee law, or who has signed such a
sworn acknowledgment pursuant to the law of any other state, territory, or foreign
country; or
(v) An adoptive parent of a child or adult;
(B) A man shall not be a legal parent of a child based solely on blood, genetic, or DNA
testing determining that he is the biological parent of the child without either a court
order or voluntary acknowledgement of paternity pursuant to § 24-7-113 . Such test may
provide a basis for an order establishing paternity by a court of competent jurisdiction,
pursuant to the requirements of § 24-7-112[.]
Tenn. Code Ann. § 36-1-102(28).
8
Because the order establishing paternity was entered after the filing of the termination petition, however,
Father was not a legal father at the time of the filing of the termination petition. See In re Ashton B., No.
W2015-01864-COA-R3-PT, 2016 WL 981320, at *8 (Tenn. Ct. App. Mar. 15, 2016), perm. app. denied
(Tenn. July 6, 2016) (concluding that, although the father was deemed the legal parent of the child
only after the termination of parental rights petition was filed, father was not the child’s legal parent at the
time of the filing of the termination petition).
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termination petition was filed. In a previous case, we have held that DCS could not seek
to terminate father’s parental rights on the ground of failure to establish parentage when
DCS “made [no] effort to assist [f]ather to establish parentage.” In re Dixie M.M., No.
M2012-01226-COA-R3-PT, 2012 WL 4474155, at *8 (Tenn. Ct. App. Sept. 27, 2012).
However, we agree with DCS that the Tennessee Supreme Court’s opinion in In re
Kaliyah S., 455 S.W.3d 533 (Tenn. 2015), decided after In re Dixie M.M., is controlling
in this case. In In re Kaliyah S., the supreme court held that, as a general rule, DCS is not
required to prove that it exerted reasonable efforts as a precondition to terminating a
parent’s parental rights. Id. at 555. Rather, the extent of DCS’s efforts to reunify the
family in a termination proceeding is weighed in the trial court’s best-interest analysis.
Id. Our supreme court noted a single exception to this general rule: because the ground
for termination of abandonment by failure to provide a suitable home expressly
references DCS’s reasonable efforts, such efforts must be shown to rely on this ground.
Id. at 554 n.31; see Tenn. Code Ann. § 36-1-102(1)(A)(ii). Neither the ground of failure
to establish paternity nor the other grounds applicable to Father expressly require that
DCS exert reasonable efforts to assist Father in establishing himself as a legal parent. As
a result, we respectfully reject Father’s contention that DCS’s failure to exert reasonable
efforts to help him establish paternity in this case warrants reversal of all of the grounds
found by the trial court under section 36-1-113(g)(9)(A).
Having established that Father is a putative father and not a legal father, we will
now discuss whether DCS proved by clear and convincing evidence the grounds under
section 36-1-113(g)(9)(A): (1) failure to manifest an ability and willingness to assume
legal and physical custody of the child pursuant to section 36-1-113(g)(9)(A)(iv); (2) that
placing the child in Father’s legal and physical custody would pose a risk of substantial
harm to the physical or psychological welfare of the child pursuant to section 36-1-
113(g)(9)(A)(v); and (3) failure to establish paternity pursuant to section 36-1-
113(g)(9)(A)(vi). “These grounds are less difficult to prove than the grounds in
Tenn[essee] Code Ann[otated section] 36-1-113(g)(1)–(8) . . . partially because they do
not include a willfulness requirement.” In re H.A.L., No. M2005-00045-COA-R3-PT,
2005 WL 954866, at *9 (Tenn. Ct. App. Apr. 25, 2005). We will consider each of these
grounds in turn.
With respect to the ground of failure to manifest an ability and willingness to
assume legal and physical custody of the child pursuant to section 36-1-113(g)(9)(A)(vi),
the trial court found that, although Father testified that he was willing to take custody of
the child upon his release, Father failed to manifest the willingness and ability to take
custody of the child. Specifically, the trial court found that Father “is not in a position to
care for the child at this time.” The record does not preponderate against the trial court’s
findings of fact with regard to this ground. Here, although Father stated his intention that
he was willing to take custody of the child, Father manifested the opposite intention
based on his actions. “[I]n parental rights matters, the court does not look to the
protestations of affections and expressed intentions of the parent, but rather the parent’s
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course of conduct.” In re Weston T.R., No. M2012-00580-COA-R3-PT, 2012 WL
3804414, at *7 (Tenn. Ct. App. Aug. 31, 2012) (quoting State of Tenn., Dep’t of
Children’s Servs. v. J .M.F., 2005 WL 94465, at *7 (Tenn. Ct. App. Jan. 11, 2005)); see
In re Rebecca J.R.M., No. E2013-00996-COA-R3-PT, 2013 WL 6529568, at *11 (Tenn.
Ct. App. Dec. 12, 2013) (“Although [f]ather testified that he had a desire to raise the
[c]hild, [f]ather’s actions belie his words.”). The record shows that Father was re-
incarcerated by Father’s own conduct of failing to report or do what was necessary to
stay out of jail in order to care for the child. Indeed, based on Father’s own testimony, he
was aware that his failure to abide by the terms of his house arrest would result in his re-
incarceration. Although Father testified that he was homeless while his parents were on
vacation and therefore was unable to report to a certain location for his house arrest, there
is no evidence that Father contacted his probation officer or anyone else to remedy the
situation. As a result, Father violated his house arrest and was required to serve his nine-
year sentence. Thus, Father’s actions show an unwillingness to act in a way that would
allow him to assume custody of the child. We therefore affirm the trial court’s
termination of Father’s parental rights on this ground.
We next consider whether DCS presented clear and convincing evidence that
placing the child in Father’s legal and physical custody would pose a risk of substantial
harm to the physical or psychological welfare of the child such that termination of
Father’s parental rights is proper pursuant to section 36-1-113(g)(9)(A)(v). The trial
court terminated Father’s parental rights on this ground because it “could not place the
child in the care of a parent who is incarcerated.” When asked at trial whether Ms.
Alexander had “concerns that placing the child in the custody of [Father] would pose a
risk of substantial harm to the child’s physical and psychological welfare,” she merely
answered “[y]es” without any further explanation.
This Court has previously made the following observation:
The courts have not undertaken to define the circumstances that pose a risk
of substantial harm to a child. These circumstances are not amenable to
precise definition because of the variability of human conduct. However,
the use of the modifier “substantial” indicates two things. First, it connotes
a real hazard or danger that is not minor, trivial, or insignificant. Second, it
indicates that the harm must be more than a theoretical possibility. While
the harm need not be inevitable, it must be sufficiently probable to prompt a
reasonable person to believe that the harm will occur more likely than not.
The courts have likewise not provided clear directions regarding the
amount of proof required to establish that a child will be exposed to
substantial harm if he or she is placed in the custody of a biological parent
rather than a third party.
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Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001) (footnotes omitted). “Custody
decisions should not be used to punish parents for past misconduct or to award parents
for exemplary behavior.” In re Adoption of W.J.P., No. E2007-01043-COA-R3-PT,
2008 WL 246015, at *11 (Tenn. Ct. App. Jan. 30, 2008) (citing Rice v. Rice, 983 S.W.2d
680, 683 (Tenn. Ct. App. 1998)). “The courts understand that persons are able to turn
their lives around[.]” Id. (citing In re Askew, 993 S.W.2d 1, 2 (Tenn. 1999)).
“Accordingly, custody decisions should focus on the parties’ present and anticipated
circumstances . . . and on the parties’ current fitness to be custodians of children.” Id.
(citations omitted).
Here, the trial court based its decision solely on Father’s incarcerated status. We
have never held that a parent’s mere status as an inmate clearly and convincingly
establishes that placing the child in the parent’s legal and physical custody would pose a
risk of substantial harm to the physical or psychological welfare of the child. Cf. In re
F.N.M., No. M2015-00519-COA-R3-PT, 2016 WL 3126077, at *13 (Tenn. Ct. App.
Apr. 11, 2016) (holding that petitioners proved by clear and convincing evidence the
ground of substantial and psychological harm because there was evidence of a significant
bond between the child and petitioners, evidence of the lack of a relationship with father
due to father’s incarceration, and the testimony of a “completely credible” child
psychiatrist who “outlined the adverse psychological and physical effects a child
experiences if taken away from the person or persons with whom the child has bonded”);
In re Adoption of S.T.D., No. E2007-01240-COA-R3-PT, 2007 WL 3171034, at *9–10
(Tenn. Ct. App. Oct. 30, 2007) (affirming the ground of substantial harm to the physical
or psychological welfare of the children based on testimony that, while in father’s care,
the children lost weight, became congested, developed diaper rashes, and their hunger
cries were ignored); State v. C.H.H., No. E2001-02107-COA-R3-CV, 2002 WL
1021668, at *9 (Tenn. Ct. App. May 21, 2002) (affirming the ground of substantial harm
based on evidence of the child’s bond with the foster parents and attachment to her
siblings, and a licensed clinical social worker’s observation that father “has no regard for
the strong bond the [c]hild has with her siblings and with the foster family”). As a result,
without more, we disagree that DCS met its burden by clear and convincing evidence that
placing the child in Father’s legal and physical custody would pose a risk of substantial
harm to the physical or psychological welfare of the child and therefore reverse the trial
court’s termination of Father’s parental rights on this ground.
Finally, we consider whether DCS proved by clear and convincing evidence that
Father failed to establish paternity pursuant to Tennessee Code Annotated section 36-1-
113(g)(9)(A)(vi). It is undisputed that Father knew that he was the child’s biological
father on May 2015, at the latest, but nevertheless never filed a petition to establish
paternity while he was out of jail on house arrest for thirty-five days. Indeed, Father
testified that, during this time, he and Mother intended to “straighten[] out” the child’s
birth certificate, indicating that he was aware of his duty to legitimate the child. Father,
however, failed to do so because he violated his probation for failure to report for intake.
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Although Tennessee Code Annotated section 36-1-113(g)(9)(A)(vi) requires that Father
“file a petition to establish paternity of the child within thirty . . . days after notice of
alleged paternity,” we note that Father was out of jail for thirty-five days, giving him
sufficient time to accomplish this task. In addition, the order establishing paternity was
not entered until August 2016, eight months after the DNA paternity test was completed
and long after the thirty-day limit contemplated by statute. Under these circumstances,
we therefore affirm the trial court’s ruling that clear and convincing evidence existed to
terminate Father’s parental rights on the ground of failure to establish paternity.
Abandonment by Wanton Disregard
At the outset, we note that the In re Bernard T. court explicitly held that, where
any of the section 36-1-113(g)(9)(A) grounds are applicable, the grounds in section 36-1-
113(g)(1) through section 36-1-113(g)(8) are inapplicable. See In re Bernard T., 319
S.W.3d at 604 (“[Father’s] rights with regard to [the child] can be terminated based only
on one of the six grounds in Tenn[essee] Code Ann[otated section] 36-1-113(g)(9)
[because he was not a legal father at the time of the filing of the termination petition], not
on any of the other grounds in Tenn[essee] Code Ann[otated section] 36-1-113(g).”). As
noted earlier, section 36-1-113(g)(9)(A) was amended in 2016, resulting in substantive
changes to the statute. Based on this very recent change, no court has yet considered
whether the 2016 amendment affected this part of the holding in In re Bernard T. Father
does not argue however that, if one of the 36-1-113(g)(9)(A) grounds applies, then the
section 36-1-113(g)(1) ground that was alleged against him was inapplicable. Moreover,
regardless of its applicability, as discussed in detail infra, we conclude this ground was
not proven by clear and convincing evidence. Consequently, we proceed to consider the
final ground for termination—abandonment by an incarcerated parent by wanton
disregard for the welfare of the child.
Pursuant to Tennessee Code Annotated section 36-1-113(g)(1), “[a]bandonment
by the parent or guardian” constitutes a ground for termination of a parent’s parental
rights. Tennessee Code Annotated section 36-1-102, in turn, provides several definitions
for abandonment. In this case, the petition alleged, and the trial court found,
abandonment by an incarcerated parent for wanton disregard under Tennessee Code
Annotated section 36-1-102(a)(iv). Section 36-1-102(a)(iv) provides:
(iv) A parent . . . is incarcerated at the time of the institution of an action or
proceeding to declare a child to be an abandoned child, or the parent . . . has
been incarcerated during all or part of the four (4) months immediately
preceding the institution of such action or proceeding, and . . . the parent . .
. has engaged in conduct prior to incarceration that exhibits a wanton
disregard for the welfare of the child[.]
Tenn. Code Ann. § 36-1-102(1)(A)(iv).
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The statute “begins by describing the class of people to whom the statute applies.”
In re Audrey S., 182 S.W.3d 838, 870 (Tenn. Ct. App. 2005). As is evident from the
language of the statute, the grounds under Section 36-1-102(1)(A)(iv) applies only where
“the parent . . . has been incarcerated during all or part of the four (4) months
immediately preceding the institution of [a parental termination] proceeding.” In this
case, the trial court made the following specific findings concerning the ground of
abandonment by an incarcerated parent for wanton disregard:
9. . . . [T]he [c]ourt finds that the relevant four (4) month period
preceding the filing of the termination petition began on February 29, 2016,
and ended on June 28, 2016.
10. The [c]ourt finds that [Father] was in jail for the entire four (4)
month period immediately preceding the filing of the . . . Petition to
Terminate Parental Rights. Specifically, the [c]ourt finds that [Father] was
arrested in July of 2015 upon a charge of Violation of Probation. Further.
The [c]ourt finds that [Father] has been incarcerated since that time and has
yet to be released from prison.
Because Father was incarcerated for the entire four months preceding the filing of
the termination petition, the trial court correctly concluded that the abandonment
definition contained in section 102(1)(A)(iv) was applicable. See In re Keith W., No.
W2016-00072-COA-R3-PT, 2016 WL 4147011, at *6 (Tenn. Ct. App. Aug. 3, 2016)
(holding that the incarcerated parent definitions for abandonment did not apply because
the father was not incarcerated at or in the four months preceding the filing of the
termination petition); see In re Navada N., No. M2015-01400-COA-R3-PT, 2016 WL
3090908, at *14 (Tenn. Ct. App. May 23, 2016) (describing incarceration within the four
months preceding the filing of the termination petition as a “condition precedent” to the
application of the abandonment definitions under section 36-1-102(1)(A)(iv)). We will
therefore proceed to consider the evidence presented regarding this ground.
With regard to this ground of abandonment, we have explained:
Incarceration alone is not conclusive evidence of wanton conduct prior to
incarceration. In re Audrey S., 182 S.W.3d 838, 866 (Tenn. Ct. App. 2005).
Rather, “incarceration serves only as a triggering mechanism that allows the
court to take a closer look at the child’s situation to determine whether the
parental behavior that resulted in incarceration is part of a broader pattern
of conduct that renders the parent unfit or poses a risk of substantial harm
to the welfare of the child.” Id. The statutory language governing
abandonment due to a parent’s wanton disregard for the welfare of a child
“reflects the commonsense notion that parental incarceration is a strong
indicator that there may be problems in the home that threaten the welfare
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of the child” and recognizes that a “parent’s decision to engage in conduct
that carries with it the risk of incarceration is itself indicative that the parent
may not be fit to care for the child.” Id.
Numerous cases have held that a parent’s previous criminal conduct,
coupled with a history of drug abuse, constitutes a wanton disregard for the
welfare of the child. See, e.g., State v. J.M.F., No. E2003-03081-COA-R3-
PT, 2005 WL 94465, at *8 (Tenn. Ct. App. Jan. 11, 2005); In re C. LaC.,
No. M2003-02164-COA-R3-PT, 2004 WL 533937, at *7 (Tenn. Ct. App.
Mar. 17, 2004); State v. Wiley, No. 03A01-9903-JV-00091, 1999 WL
1068726, at *7 (Tenn. Ct. App. Nov. 24, 1999); In the Matter of Shipley,
No. 03A01-9611-JV-00369, 1997 WL 596281, at *5 (Tenn. Ct. App. Sept.
29, 1997). “[P]robation violations, repeated incarceration, criminal
behavior, substance abuse, and the failure to provide adequate support or
supervision for a child can, alone or in combination, constitute conduct that
exhibits a wanton disregard for the welfare of a child.” In re Audrey S.,
182 S.W.3d at 867–68.
In re C.A.H., No. M2009-00769-COA-R3-PT, 2009 WL 5064953, at *5 (Tenn. Ct. App.
Dec. 22, 2009).
In its final order, the trial court found that DCS proved by clear and convincing
evidence the ground of abandonment by wanton disregard. Specifically, the trial court
made the following findings:
12. . . . [P]rior to his incarceration for Violation of Probation,
[Father] obtained several criminal convictions for the manufacture and
promotion of methamphetamine. Further, [Father] lived a transient lifestyle
and failed to report for his probation so that he could remain out of jail. He
also abused illegal drugs, as evidenced by his positive drug test for opiates
and cocaine. In regard to this dirty drug test, the [c]ourt finds that [Father]
testified that his probation officer did not give him a chance to “get clean”
prior to administrating said drug test to him. However, the [c]ourt also
finds that [Father] was on notice that he would be drug screened as a
condition of his probation.
13. The [c]ourt finds that all of the aforementioned behaviors
indicate that [Father] has demonstrated a wanton disregard for the child’s
welfare and that this lack of concern for the child is the type of behavior
that this ground for termination was designed to address.
It appears from the trial court’s order that the trial court considered events that
occurred even before the child’s conception to support its finding of abandonment by
wanton disregard. Father argues that the trial court erred in considering the convictions
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and violation of probation that occurred even before the child was born. We agree.
“Logically, a person cannot disregard or display indifference about someone whom he
does not know exists.” In re Anthony R., No. M2014-01753-COA-R3-PT, 2015 WL
3611244, at *3 (Tenn. Ct. App. June 9, 2015). Pursuant to Tennessee Code Annotated
section 36-1-102(13), a “child” is defined as “any person . . . under eighteen (18) years of
age.” Tennessee courts have expanded the definition of a “child” to include not only the
period after the child’s birth but also the period before birth but after the child’s
conception in the context of the ground of abandonment by wanton disregard for the
welfare of the child. See, e.g., In re Jocilyn M.P., 435 S.W.3d 773, 782 (Tenn. Ct. App.
2014) (considering criminal charges against father “from the discovery of [mother’s]
pregnancy”); In re O.J.B., No. W2009-00782-COA-R3-PT, 2009 WL 3570901, at *5
(Tenn. Ct. App. Nov. 2, 2009) (considering the fact that mother ingested drugs while she
was pregnant with the child and pled guilty to additional criminal charges shortly after
the child’s birth); State of Tenn., Dep’t of Children’s Servs. v. Harville, No. E2008-
00475-COA-R3-PT, 2009 WL 961782, at *8 (Tenn. Ct. App. Apr. 9, 2009) (finding that
mother demonstrated a wanton disregard for the child’s welfare by exposing the child to
cocaine in utero). “[W]hile the statutory reference to ‘the child’ can mean a child in
utero, the wanton disregard language of Tenn[essee] Code Ann[otated section] 36-1-
102(1)(A)(iv) must be construed to require that the father has knowledge of the child at
the time his actions constituting wanton disregard are taken.” In re Anthony R., 2015
WL 3611244, at *3.
In this case, the offense dates for the underlying drug offenses that ultimately led
to Father’s convictions—March 30, 2013; April 5, 2013; and May 4, 2013—occurred
almost two years before the child’s birth in February 2015, and Father was convicted in
January 2014—over a year before the child was born. It is also undisputed that Father’s
first violation of probation wherein he failed his drug screen and absconded occurred a
few days after February 28, 2014, even though the order was ultimately entered on May
27, 2015, three months after the child’s birth. Although Father’s act of absconding for
over a year until May 2015 could, in a typical case, be considered in the determination of
whether Father abandoned the child by wanton disregard, DCS has presented no proof
showing that Father knew the child was conceived during the time that Father was
absconding. Indeed, other than the acknowledgement in DCS’s brief of the proof
presented at trial that, “[a]t the latest, Father claimed paternity of the child during the
period of the time Father was out of jail between May and July 2015,” the record is silent
with respect to when Father was first aware of Mother’s pregnancy. As such, we agree
with Father that these prior bad acts should not have been considered by the trial court
when determining whether clear and convincing evidence existed to terminate his
parental rights on the ground of abandonment by wanton disregard. See In re A.E.T.,
No. M2015-01193-COA-R3-PT, 2016 WL 4056467, at *8 (Tenn. Ct. App. July 26, 2016)
(“At the time [f]ather committed the acts that resulted in the convictions listed in
paragraph (2)(e) of the trial court’s order, the [c]hild did not exist and [f]ather did not
know that the [c]hild would someday come to exist. Therefore, we will not rely on them
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in our consideration of whether [f]ather abandoned the [c]hild by wanton disregard.”).
Consequently, our review of the record indicates that the following bad conduct by Father
occurred after the child’s conception/birth: the violation of Father’s probation based on
his failure to report for intake to community corrections on June 3, 2015 and failure to
keep in touch with his probation officer as required by the terms of his probation.
DCS cites In re Chyna L.M.D., No. E2012-00661-COA-R3-PT, 2012 WL
3776699 (Tenn. Ct. App. Aug. 31, 2012), arguing that even a single instance of bad
conduct can lead to a finding of abandonment by wanton disregard. In that case, the
father was released on probation prior to the child’s birth but subsequently violated his
probation. Id. at *5. As an alternative to being sent back to prison, Father was given an
offer of enhanced probation so that he could remain in the community and participate in
the child’s life. Id. However, father, with knowledge that the mother was pregnant with
his child, behaved in such a way at the hearing to cause the offer of enhanced probation
to be withdrawn. Id. As a result, father was sent to prison to serve the remainder of his
eight-year sentence. Id. at *1, 5.
Father’s conduct in this case is distinguishable from the father’s conduct in In re
Chyna L.M.D. Unlike the facts in In re Chyna L.M.D., where no evidence of any
redeeming factors was presented, the record in this case shows that Father visited with
the child every day during the thirty-five days in 2015 when he was released on house
arrest. During the same period of time when Father failed to report for intake, Father also
provided for the child rather than ignored his parental duties. This is not a case where
Father totally neglected his parental duties in order to further his criminal enterprises.
See, e.g., In re K.F.R.T., 493 S.W.3d 55, 61 (Tenn. Ct. App. 2016), perm. app. denied
(Tenn. June 6, 2016) (affirming the ground of wanton disregard because “the father . . .
was arrested for theft, multiple D.U.I. offenses, repeated traffic offenses, domestic
violence against the biological mother of the children central to this appeal, multiple
illegal border crossings, and even extortion” resulting in “multiple incarcerations and/or
deportations”); In re Jocilyn M.P., 435 S.W.3d 773, 787 (Tenn. Ct. App. 2014)
(affirming the ground of wanton disregard, which was evidenced by father’s “criminal
behavior, continued incarcerations, drug abuse, failing to meet the child’s material needs,
his disrespect for authority, conspiring in an armed robbery of another drug dealer/felon,
while the child and her two half-siblings and the child’s mother were in the home, and the
demonstration of a general lack of concern towards this child”). Moreover, although
Father’s initial conviction was drug-related, there is no evidence that Father continued to
abuse drugs after the child’s birth. Even if the totality of Father’s decisions ultimately
prevented him from having a relationship with his child, his one poor decision, without
more, does not rise to the level of “unrestrainedly excessive” disregard for the child. See
The American Heritage College Dictionary 1544–45 (4th ed.) (defining “wanton” as
“[u]nrestrainedly excessive”). Rather, Father by his conduct showed that he was willing
to care for the child. Under these circumstances, we do not believe that the evidence of
Father’s one violation of probation based on failure to report establishes by clear and
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convincing evidence that Father abandoned the child by displaying wanton disregard for
the welfare of the child. See In re Renaldo M., No. M2016-00472-COA-R3-PT, 2017
WL 1041541, at *5 (Tenn. Ct. App. Feb. 7, 2017), app. denied (Tenn. Feb. 7, 2017)
(reversing the trial court’s finding of abandonment by wanton disregard because “[t]he
record shows that, despite the lapses in her behavior, [m]other has shown a great deal of
care and concern for the children, and she has made a genuine effort to establish a
meaningful relationship with them” such as “complet[ing] tasks on the permanency plan,
spen[ding] $800.00 on parenting classes, and attend[ing] every visitation with the
children that she was permitted”); In re Dylan M. J., No. M2010-01867-COA-R3-PT,
2011 WL 941404, at *8 (Tenn. Ct. App. Mar. 17, 2011) (reversing the trial court’s
finding of wanton disregard because, “despite the regrettable lapses in [father’s]
behavior, [f]ather has shown a great deal of care and concern for his son, and he has
made a genuine effort to establish a meaningful relationship with him”). As a result, we
reverse the trial court’s termination of Father’s parental rights on the ground of
abandonment by wanton disregard for the child’s welfare.
Best Interest of the Child
When at least one ground for termination of parental rights has been established,
the petitioner must then prove by clear and convincing evidence that termination of the
parent’s rights is in the child’s best interest. White v. Moody, 171 S.W.3d 187, 192
(Tenn. Ct. App. 1994). When a parent has been found to be unfit (upon establishment of
ground(s) for termination of parental rights), the interests of parent and child diverge. In
re Audrey S., 182 S.W.3d at 877. The focus shifts to the child’s best interest. Id.
Because not all parental conduct is irredeemable, Tennessee’s termination of parental
rights statutes recognize the possibility that terminating an unfit parent’s parental rights is
not always in the child’s best interest. Id. However, when the interests of the parent and
the child conflict, courts are to resolve the conflict in favor of the rights and best interest
of the child. Tenn. Code Ann. § 36-1-101(d). Further, “[t]he child’s best interest must be
viewed from the child’s, rather than the parent’s, perspective.” Moody, 171 S.W.3d at
194.
The Tennessee Legislature has codified certain factors that courts should consider
in ascertaining the best interest of the child in a termination of parental rights case. These
factors include, but are not limited to, the following:
(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 affect a lasting adjustment
after reasonable efforts by available social services agencies for such
duration of time that lasting adjustment does not reasonably appear
possible;
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(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol or controlled substances as may render the
parent or guardian consistently unable to care for the child in a safe and
stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with
the child support guidelines promulgated by the department pursuant to §
36-5-101.
Tenn. Code Ann. § 36-1-113(i). This Court has noted that, “this list [of factors] is not
exhaustive, and the statute does not require a trial court to find the existence of each
enumerated factor before it may conclude that terminating a parent’s rights is in the best
interest of a child.” In re M. A. R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005).
Depending on the circumstances of an individual case, the consideration of a
single factor or other facts outside the enumerated, statutory factors may dictate the
outcome of the best interest analysis. In re Audrey S., 182 S.W.3d at 877. As explained
by this Court:
Ascertaining a child’s best interests does not call for a rote examination of
each of Tenn. Code Ann. § 36-1-113(i)’s nine factors and then a
determination of whether the sum of the factors tips in favor of or against
the parent. The relevancy and weight to be given each factor depends on the
unique facts of each case. Thus, depending upon the circumstances of a
particular child and a particular parent, the consideration of one factor may
very well dictate the outcome of the analysis.
In re Audrey S., 182 S .W.3d at 878 (citing White v. Moody, 171 S.W.3d at 194).
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Here, the trial court found that it was in the best interest of the child to terminate
Father’s parental rights. The trial court found that Father had not visited the child since
July 2015, and, during the child’s lifetime, Father only visited with the child during the
thirty-five days when he was released from incarceration. See Tenn. Code Ann. § 36-1-
113(i)(3). The trial court further found that, because of Father’s lack of contact and
involvement with the child, there is no meaningful relationship between Father and the
child. See Tenn. Code Ann. § 36-1-113(i)(4).
The evidence does not preponderate against this finding, which weighs in favor of
termination. Here, the record shows that, as of the date of the final hearing, Father was
incarcerated, serving a nine year sentence with a release date of October 1, 2023. Father
will not be eligible for parole until December 2018 at a minimum. Further, it appears that
Father has little to no relationship with the child at all. Indeed, Father only visited with
the child during the thirty-five days when he was released from incarceration in 2015.
However, the visitation ended because of Father’s own conduct of failing to report for
intake while he was on house arrest, and, as a result, Father was re-incarcerated, ensuring
that he would be out of the child’s life for some time. As of the date of trial, the child
was nineteen months old, and Father has been incarcerated for most of the child’s life. In
contrast, the record indicates that the child has done well in foster parents’ care. The
child, who has been with the same foster family for sixteen months, has established a
bond with the foster parents and refers to the foster parents as mom and dad.
In addition, the trial court found that Father has not paid child support
consistently, while foster parents have taken care of all of the child’s needs. See Tenn.
Code Ann. § 36-1-113(i)(9). This finding is likewise supported by the record and weighs
in favor of termination. Our review of the record shows that, besides the gifts that Father
purportedly brought to the child during the thirty-five days when he was released from
incarceration, Father did not contribute any further support to the child due to his
incarceration. On the other hand, foster parents have adequately provided for the child’s
needs without Father’s help by taking the child on vacations and other special events with
foster parents’ extended family and making sure that the child’s medical needs were met.
Not all factors, however, weigh clearly in favor of termination. First, contrary to
the trial court’s finding, there is some doubt that the child’s mental, emotional, or medical
condition would suffer harm if the child was required to maintain contact with Father.
See Tenn. Code Ann. § 36-1-113(i)(5). The record shows that the child is doing
exceptionally well in foster parents’ care. The child’s mental and emotional health
certainly cannot be attributed to Father, who has been incarcerated for most of the child’s
life. Still, nothing in the record indicates that the child suffered any harm when Father
visited with the child during the thirty-five day period when he was out of jail in 2015.
Accordingly, this factor favors neither party in this case.
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Besides Father’s current incarceration, there is no evidence that Father failed to
make “an adjustment of circumstance, conduct, or conditions as to make it safe” for the
child to be in Father’s care or “to affect a lasting adjustment after reasonable efforts by
available social services agencies.” See Tenn. Code Ann. § 36-1-113(i)(1), (2). Here,
Father had been unable to complete any substance abuse treatment because he was still
on the waiting list for the program, and there is no evidence that Father failed to take
advantage of any opportunities offered to him. In addition, the record is devoid of any
reasonable efforts by DCS to help Father legitimate the child. Indeed, DCS does not
dispute that it failed to include “establish paternity” as a stated goal in the permanency
plans. Accordingly, this factor also favors neither party in this case.
Moreover, there is no evidence that Father or anyone in his home has ever “shown
brutality, physical, sexual, emotional or psychological abuse, or neglect toward the child”
or any other child. See Tenn. Code Ann. § 36-1-113(i)(6). Indeed, there is nothing in the
record to suggest that the child was in any way abused or neglected in Father’s care when
he was visiting the child during the thirty-five days when he was released from
incarceration. Rather, Father seemed to have accepted responsibility by visiting the child
and bringing her gifts. Accordingly, this factor weighs against termination.
We do not doubt that Father loves the child at issue in this case. However, Father
made the voluntary decision to not report for intake, knowing that his failure to do so
could result in his re-incarceration and remove him from the child’s life. In addition, the
record indicates that Father may have two holds for his arrest in Florida and that he is
currently incarcerated with a release date of October 1, 2023. The best interests of the
child are therefore furthered by allowing the child to remain in the foster parents’ care
and to move on from the uncertainty that would result from her relationship with Father,
who would not be eligible for parole until the child is almost four years old. From the
totality of the circumstances, we conclude that clear and convincing evidence supports
the trial court’s conclusion that termination of Father’s parental rights is in the child’s
best interest.
CONCLUSION
The judgment of the Washington County Juvenile Court is reversed in part and
affirmed in part. We reverse the following grounds found by the trial court: (1) that
placing the child in Father’s legal and physical custody would pose a risk of substantial
harm to the child’s physical and psychological welfare; and (2) abandonment by wanton
disregard for the welfare of the child. The grounds of failure to manifest an ability and
willingness to assume legal and physical custody of the child and failure to establish or
exercise paternity are affirmed. The determination that termination is in the child’s best
interest is affirmed. This cause is remanded to the trial court for further proceedings as
may be necessary and are consistent with this Opinion. Costs of this appeal are taxed
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one-half to the Appellant, Michael B., and one-half to the Appellee, Department of
Children’s Services, for which execution may issue if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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