In Re: Ava H. ( 2018 )

08/20/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs August 1, 2018
IN RE AVA H.
Appeal from the Juvenile Court for Knox County
No. 169338 Timothy Irwin, Judge
No. E2018-00042-COA-R3-PT
Adam R. P. (“Father”) appeals the order of the Juvenile Court for Knox County (“the
Juvenile Court”) terminating his parental rights to the minor child Ava H. (“the Child”)
after finding and holding that clear and convincing evidence had been proven that
grounds existed to terminate Father’s parental rights for abandonment by wanton
disregard pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv) and
that it was in the Child’s best interest for Father’s parental rights to be terminated. We
find and hold that grounds were proven by clear and convincing evidence to terminate
Father’s parental rights and that it was proven by clear and convincing evidence that it
was in the Child’s best interest for Father’s parental rights to be terminated. We,
therefore, affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which W. NEAL
MCBRAYER and ARNOLD B. GOLDIN, JJ., joined.
Anna East Corcoran, Knoxville, Tennessee, for the appellant, Adam R. P.
Jennifer S. Bjornstad, Knoxville, Tennessee, for the appellees, Carol L. D. and Joshua M.
D.
OPINION
Background
The Child was born in July of 2013 out-of-wedlock. Mother was having relations
with both Father and Joshua M. D. (“Step-father”) at the time that Mother became
pregnant with the Child. Although Mother was not involved with Step-father at the time
of the Child’s birth, Step-father attended the birth and was listed as the Child’s father on
the birth certificate. Mother married Step-father in February of 2017. In July of 2017,
Mother and Step-father filed a petition seeking to terminate Father’s parental rights to the
Child. The case proceeded to trial in December of 2017.
Mother testified at trial that when she learned she was pregnant, she notified
Father that he might be the Child’s father. Mother stated that Father:
became very aggressive, scared me. So the police was called and then - - . .
. He was just very aggressive, he was told to get out of the house because
he was violent, throwing a chair and a table, and he would just knock on a
window for hours on end until I finally was brave enough to call the police,
and I called a friend of mine to come help. But the police came. After he
was escorted off the property.
Mother did not have contact with Father again until 2015.
Step-father had a DNA test done before the Child was a year old so that he could
have visitation. Mother testified that this DNA test was done in late 2013 or early 2014,
and revealed that Step-father was not the Child’s biological father. Mother then waited
until August of 2015 before she notified Father that he was the Child’s father. She stated:
“Which he was notified when I was pregnant, yes, but his actions scared me, so yes.”
When asked what caused her to have contact with Father again in 2015, Mother
stated: “Because I guess I just had guilt as a mother, I didn’t want her to be kept away
from her biological father after we had the DNA test with [Step-father], saying he was
not the father.” So Mother told Father that he was the Child’s biological father. She
testified that this resulted in an incident, and Father became “very violent, aggressive
behavior, just to where it scared me and that’s why I kind of kept it inside, I didn’t push
visitation at that point because I was scared for my daughter.” Mother testified:
[Father], once again, stopped at my house, banging on the windows,
demanded to see his daughter at that point, in 2015, so the cops were called
since he wouldn’t get off my property. He kept threatening he was going to
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come over to take [the Child], so the place [sic] came then and did a police
report.
Mother testified that she obtained an order of protection after this incident.
After this incident, Father went to court and had a DNA test done that established
he is the Child’s biological father. In January of 2017, the parties entered into a mediated
agreement allowing Father supervised visitation with the Child. Mother testified that it
took Father approximately five months after the mediation to set up a visitation. The
parties had a second mediation in March of 2017, which occurred before Father had any
visitation. The March 2017 mediated agreement provided that Father would have “week
on, week off” visitations with The Assurance Group (“TAG”) and Camelot Care Centers
in Cookeville (“Camelot”) because Mother was living in Crossville and having to travel
for visitations to Knoxville where Father resided. The agreement also provided that
Father was to pay $100 per month in child support. Mother stated that Father has paid
only $400 total in child support since the first mediation.
Mother stated that she was cooperative with TAG about the visitations. In
September of 2016, Mother told TAG that Father could not have visitation until he
completed a drug screen. Mother cancelled one of Father’s visitations through TAG
because the Child had pneumonia. Mother testified that Father then cancelled the TAG
visits altogether. Mother stated: “he said I refuse to work with TAG.” Mother testified
that one of the visitations through Camelot was cancelled due to someone at Camelot
being sick. Father last saw the Child in June of 2017. Father has been incarcerated since
August of 2017.
Mother had text conversations with Father’s step-mother in the summer of 2016
trying to set up visitation, but the visitation never happened. Father’s step-mother never
has met the Child.
Step-father has been a part of the Child’s life since she was two years old. Mother
explained that Step-father was in the Child’s life when she was born, but after the DNA
test was done proving that he was not the biological father he “kind of stepped back a
little bit at that time, but he came back in the picture when she was two and has been
there since.”
Mother and the Child have lived with Step-father in the Crossville area since
October of 2016. Mother works for Covenant Health in x-ray and nuclear medicine.
Step-father is a foreman with Deem, which puts refrigeration in grocery stores, and has
held this job for approximately three years. Mother, Step-father, and the Child live in a
three-bedroom, two-bathroom house. Mother testified that the Child “is really crazy
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about [Step-father], she loves him to death, . . . and that’s her dad, for all she knows, that
is her dad. . . . She calls him daddy.”
Mother was asked why she and Step-father filed the petition seeking to terminate
Father’s parental rights, and she stated: “Just her protection. I’m scared for her rights,
I’m scared for her around [Father], especially his violent history, and just the love
between [Step-father] and [the Child] his [sic] undeniable so - - and it’s a stable
environment for her.”
Amy Collier from Camelot testified at trial that she does family preservation
services, and for this case she supervised the Child’s visitations with Father. Father
called Camelot in March of 2017 to set up the initial visitation. Camelot scheduled the
first visit for March 21, 2017 in Cookeville. That first visit occurred at a Burger King
and lasted for 30 minutes. Ms. Collier stated: “[Father] and [Mother] had gotten into like
a verbal altercation and it was upsetting [the Child], so I said it was over. And [Father]
came back to the office with us to fill out the paperwork we needed from him.” Ms.
Collier did not hear what Father and Mother were fighting about as Father had asked
Mother to “step over to talk” and he “pulled [Mother] over to the side, like the other side
of the play place.” Ms. Collier stated: “They were out of earshot of me so I couldn’t hear
what they were saying.”
Ms. Collier testified that the next visit through Camelot was two weeks later at the
Camelot office. She stated: “That visit went fine. They sat in our waiting room and
played with toys that we had provided. He had lunch brought to [the Child], and he had
had a toy brought to [the Child], and they interacted with one another, they played with
blocks.”
After that visit, Camelot began to have issues with Father. Ms. Collier explained:
The next visit that was scheduled, [the Child] was sick with
pneumonia. We had a note from the doctor’s office faxed to us [sic]
morning, and I had called [Father] just as early as I could because I knew
he was commuting from Knoxville to Cookeville. And after that visit - - I
didn’t hear from him until like later that afternoon. He just became very
verbally aggressive over the phone, he was calling my supervisor and our
regional director and was just very ugly on the phone with them. And it
was at that point that my boss gave me the permission to terminate our
services with [Father].
When Ms. Collier was questioned further about what Father did that was aggressive, she
stated:
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Well, he threatened to sue our office, he had threatened to call
whoever was over Camelot, because every time we would tell him we
couldn’t do something a certain way, he would like blow up and would
threaten to sue us. He was very difficult to work with. . . . There were a
few times on the phone he had called me a stupid bitch. I guess that was
kind of the extent of cursing, telling me that I wasn’t doing my fucking job,
and that I needed to get my head out of my ass, things like that. But it
would always come up after - - he had issues with us scheduling the visits
at our office, in a controlled environment in the office. But just with his
unpredictability, my supervisor and my boss wouldn’t allow me to schedule
them at a park or at a children’s museum. I mean, there are limited places
in Cookeville we could have done these visits.
When asked if Mother was cooperative, Ms. Collier stated: “Very, yes.” She
stated that Mother “always went above and beyond to work with us to schedule.” The
visit that was cancelled when the Child was sick was scheduled for May 3, 2017.
Camelot terminated the visits by letter dated May 8, 2017.
Step-father testified at trial that he thought he was the Child’s biological father
when he signed the birth certificate. He is 28 years old, and Mother is 29 years old.
Step-father testified that he never has had a drug or alcohol problem and that he has no
criminal history. He testified that he makes approximately $53,000 or $54,000 per year.
Mother makes approximately $25,000 per year. Step-father has no other children.
Step-father wants to adopt the Child. When asked why he wants to adopt, he
stated: “Because I raise her as my own now, I take care of her, I’m her dad.” When he
was asked why this is in the Child’s best interest Step-father stated: “Because I’m stable,
I love her, I make sure she knows she’s loved and cared for, I make sure she’s got a roof
over her head and food in her stomach.”
Father testified at trial that he is from North Carolina. At the time of trial, Father
was incarcerated in Tennessee.
Father was asked about how he found out he was the Child’s father, and he stated:
“[Mother] came over to my house one weekend, I actually had a client over, and she
came before I was going to head to Asheville to see my family.” He was asked if he
could recall if the police were called, and he stated: “No, I didn’t - - I called from my
house. I asked if I could swing by and see [the Child] afterwards and got no reply, so I
went on to Asheville.” Father was asked what he did after learning he was the Child’s
father, and he stated:
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After she told me, she said she’s going to let me absorb this and to
text her later that night, that she would get back to [the Child]. And I tried
for about three days, I probably sent four text messages, and I think the
third day I sent one saying that, you know, because you told me I had a
daughter, I am going to seek an attorney and get paternity. . . . After a
sheriff came to my door the next day for saying that, saying that I had an
order of protection hearing.
Father then filed for paternity with the court and had a DNA test done.
Father has a criminal history that precedes the birth of the Child in 2013. In 1999,
Father was convicted of reckless driving, evading arrest, and carrying a concealed
weapon. In 2006, Father was convicted of a possession charge and a charge of resisting
an officer. In 2007, Father was convicted of possession of a Schedule II drug and DWI.
In 2008, Father was convicted of drunk and disorderly conduct. In 2009, Father was
convicted of DWI.
In February of 2016, Father was charged with driving under the influence in Knox
County, and he pled guilty to public intoxication. In July of 2016, Father again was
charged with driving under the influence. He pled guilty to that charge in August of
2017.
Father was taken into custody around June 21, 2017. Father was not able to bond
out of jail because he was incarcerated for violation of probation until April 12 on the
DUI charge. Father was asked if he acknowledged that he has some issues, and he stated:
“I think that’s an understatement.”
At the time of trial Father had seven charges pending that had been bound over to
the Grand Jury. These charges arise out of an incident wherein Father was arrested in
May of 2017. Father admitted that he was charged with two counts of aggravated assault
involving two different victims in connection with this incident. In June of 2017, Father
was again arrested and charged with aggravated assault. Father admitted that this charge
was domestic and that the incident occurred at his home. Father also was charged with a
second charge of aggravated assault arising from the same incident, but Father stated that
it wasn’t his home and that the officers just assumed it was. Father also was charged with
three counts of carrying a handgun as a felon. Father stated that the handgun was not in
his possession. When specifically questioned about the incidents resulting in these seven
pending charges, Father relied on the Fifth Amendment and refused to answer other
questions.
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When asked how many times he has visited with the Child, Father stated
“Probably four to five. Not enough.” He stated: “I tried to like the time - - I mean, I tried
many times, my step mom has tried many times. It’s really took a toll on me.”
Father testified that he works at a barber shop. He testified that his income the
past two years has been “in the negative . . . .” He further stated: “I think it was about
negative 13 grand last year.” Father was asked how he was living on a negative income,
and he stated: “I mean, in expenditures. My dad passed away, and I was left assets and
such from that, but that’s went into two years of the business and starting it up.”
Father was asked if he has had treatment for alcohol use, and he testified that he
was starting Focus on January 8, 2018 in Knoxville and that he took a 12 hour class at the
Sheriff’s Office and obtained a certificate. Father explained that Focus is a faith-based
90-day long program that explores things from parenting to work development to
everyday life and relationships. Father was asked if he was admitting that since incurring
the first charges in 1999 he has not had any treatment for substance abuse, and he stated:
“I’m saying after the treatment for the case of the DUI, I mean, yeah, I had some class
hours and stuff then, but evidently it didn’t take it’s toll so . . . .”
Father has been in jail this time for six months. He currently is in a Personal
Contemplation Group, which he stated “is thinking before acting and self-exploration.”
Father has not done any alcohol-related work. He stated that he was trying to get into
AA, but there was a long list and that he had been declassified because he had been
moved.
Father was asked if TAG terminated their services, and he stated: “No, I
terminated services.” Father stated that he did this before Camelot terminated services.
Father was asked if he sought further court hearings or mediations to get some kind of
visitation with the Child after Camelot terminated services, and he stated: “I wanted to
get something permanent and I didn’t even see why I needed supervised.” Father stated:
“I did all sorts with the court. . . . I planned on talking - - I got rid of my lawyer, and I
took on services of - - . . . .” Father was asked to clarify if since May of 2017 any further
proceedings have taken place with him seeking further visitation, and he stated: “No,
because also the mediated agreement, she was not given the medical records of [the
Child].”
Father was asked if he was requested to take a drug test in connection with
visitation, and he stated:
Really wasn’t requested. She said that in a [sic] e-mail and stuff the
lady asked if I had a court order or anything asking if I had to take a drug
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test, and I said no. And she said, well, she’s saying that you failed one and
you don’t get visitation, you need to take another one. So I just decided to
go take a drug test and send it in. . . . Just to - - it seemed like she was
going to use that or that was going to be the next step anyway, so I just
went ahead and got it done.
Father has seen the Child five times and each of those times was in 2017. The
Child was three years old when Father saw her. Three visits were set up through
Camelot, and two of those were completed. Three visits were set up at TAG, and all
three were completed.
Father testified that he can prove he paid $500 in child support and stated he
thought “there’s a couple of more in there, but that I can prove, 500.”
Father was asked what type of relationship he has with the Child, and he stated:
I have just - - my feelings have been restricted. It’s just - - it’s hard to have
someone, you know, all a sudden say you have a child in your life and, I
mean, I took it as a blessing, and then I get these visitations or these hours,
and people are telling me that I can’t even tell her I’m her dad.
After trial, the Juvenile Court entered its order on July 17, 2017 terminating
Father’s parental rights to the Child after finding and holding by clear and convincing
evidence, inter alia:
The parents entered into a Mediated Agreement through Fourth
Circuit Court on January 10, 2017, wherein the father was awarded eight
weeks of supervised visitation to be supervised by The Assurance Group
(TAG), the parents agreed to submit to mental health assessments at Helen
Ross McNabb, and the father agreed to pay child support in the amount of
$100 on January 15th and February 15th of 2017 without a presumption of
correctness. The parties entered into a second Mediated Agreement on
March 13, 2017, wherein the father was awarded weekly supervised
visitation to be supervised alternately by TAG and Camelot in Cookeville,
Tennessee, and the father agreed to pay $100 per month in child support on
the 15th day of each month without a presumption of correctness. The
father’s first and only visit supervised by TAG took place on March 15,
2017, and then the father terminated services with TAG. The father’s the
[sic] first visit with Camelot was held on March 21, 2017 for approximately
30 minutes at Burger King. The father had a visit approximately two weeks
later with Camelot supervising at the Camelot office for two hours that
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went well. The visitation services by Camelot were terminated by Camelot
on May 8, 2017, due to the father’s behaviors and aggression. The father
paid a total of $500 according to the father’s step-mother and $400
according to the mother for child support from January 2017 to the present.
The father testified that he has had a $13,000 loss the last two years as his
income. The Court found that although he has paid some child support, the
amount is not significant. A third mediation was scheduled for June 13,
2017, but was cancelled and has not been rescheduled at this point[.]
The father has a lengthy criminal history in Buncombe County,
North Carolina and based on his testimony, he admitted to being convicted
of the following:
a. Date Committed: 2/7/99- Speeding Elude Arrest or/Attempt
b. Date Committed: 2/7/99-Reckless Driving
c. Date Committed: 2/7/99-Carry Concealed Weapon
d. Date Committed: 2/7/99- Fail to Heed to Light/Siren
e. Date Committed: 1/1/07-DWI Level 2
f. Date Committed: 1/1/07-Possession WITS Schedule II
g. Date Committed: 11/30/06-Resisting Officer
h. Date Committed: 11/30/06-Drug Para-Use/Possess
i. Date Committed: 10/11/08-Drunk & Disorderly
j. Date Committed: 6/18/09-Driv License Revoked
k. Date Committed: 6/18/09-DWI Level 1
l. Date Committed: 7/24/09-Driv License Revoked
m. Date Committed: 7/24/09- DWI Level 1
In addition to his criminal history and charges in Buncome County, North
Carolina, the father has been convicted with or has charges pending for the
following in Knox County, Tennessee:
a. Date Committed: 2/19/16- Public Intoxication (guilty plea)
b. Date Committed: 7/4/16- Driving Under the Influence (guilty plea)
c. Date Committed: 5/10/17- Aggravated Assault (pending-bound over to
the grand jury)
d. Date Committed: 5/10/17-Aggravated Assault (pending-bound over to
the grand jury)
e. Date Committed: 6/28/17-Aggravated Assault-Domestic (pending-bound
over to the grand jury)
f. Date Committed: 6/28/17-Aggravated Assault-Domestic (pending-bound
over to grand jury)
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g. Date Committed: 6/28/17- Alter Item Perm Disting NBRS/Poss of Such
(pending-bound over to grand jury)
h. Date Committed: 6/28/17- Possession of Handgun-Convicted Felon
(pending-bound over to the grand jury)
i. Date Committed: 6/28/17- Possession of Handgun-Convicted Felon
(pending-bound over to the grand jury)
j. Date Committed: 6/28/17-Possession of Handgun-Convicted Felon
(pending-bound over to the grand jury)
According to the father, he expects to be released from jail in April
of 2018, and the father, who has been incarcerated since June 28, 2017, will
begin a program offered in the jail called FOCUS beginning on January 8,
2018.
According to the paternal step-grandmother, she has made numerous
attempts to see the child through the mother, but the paternal step-
grandmother has never seen the child.
That the child is thriving in the care of the mother for the child’s her
[sic] entire life and the step-father since November 2016. The Petitioners
have sufficient income to provide for the child, have an appropriate home,
have no criminal history, and have no history of substance abuse.
II
That there is clear and convincing evidence of wanton disregard by
the father. The father’s pre-incarceration conduct displayed a wanton
disregard for the welfare of the child and the father was served with the
Petition while incarcerated. The father has had repeated incarcerations,
criminal behavior, a probation violation, and substance abuse issues as
shown in his criminal convictions that show wanton disregard for the
welfare of the child.
That it is in the best interest of the child for the father’s parental
rights to be terminated. The father referred to his “wild and woolly days”
when he was young, but the Court cannot see that those days have ended.
The father has not made a any [sic] adjustment or any lasting adjustment to
his circumstances that would make it safe and in the child’s best interest to
be in his home. The father has not had regular visitation with the child but
has only seen her three times. He cancelled the services of one supervising
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agency, TAG, and Camelot refused to supervise any further visits of the
father due to his “tongue.” The father could not possibly have a meaningful
relationship with the child due to the few times that he has seen her. The
effect of the change of caregivers is not an issues [sic] in this case. There is
no proof of medical or emotional issues for the child, however, she has
thrived in the care of the mother and step-father. There is no proof of
mental or physical brutality by the father, though numerous charges are
pending for aggravated assault, none of which allege the minor child to be a
victim. There is no proof regarding the father’s home, though he has been
incarcerated for almost six months. The father has a pattern of alcohol
abuse without treatment, therefore the Court cannot conclude that he could
provide care for the child in a safe a [sic] stable manner. The father has
paid some child support, but the amount is not significant. Reviewing each
factor set forth by statute to determine what is in the best interest of the
child, the Court finds that it is in the best interest of the child for the
father’s parental rights to be terminated so that the child can have
permanency and stability.
Father appeals the termination of his parental rights.
Discussion
Although not stated exactly as such, Father raises two issues on appeal: 1) whether
the Juvenile Court erred in finding that clear and convincing evidence was proven of
grounds to terminate Father’s parental rights for abandonment by wanton disregard
pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-
102(1)(A)(iv); and, 2) whether the Juvenile Court erred in finding that clear and
convincing evidence was proven that it was in the Child’s best interests for Father’s
parental rights to be terminated.
With regard to the termination of parental rights, our Supreme Court has
instructed:
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.1 Troxel v.
1
U.S. Const. amend. XIV § 1 (“[N]or shall any State deprive any person of life, liberty, or property,
without due process of law . . . .”). Similarly, article 1, section 8 of the Tennessee Constitution states
“[t]hat no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or
outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the
judgment of his peers or the law of the land.”
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Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000);
Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551
(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 425, 429 (Tenn. Ct. App. 1983)); see also Santosky
v. Kramer, 455 U.S. 745, 747, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In
re Angela E., 303 S.W.3d at 250. “When the State initiates a parental rights
termination proceeding, it seeks not merely to infringe that fundamental
liberty interest, but to end it.” Santosky, 455 U.S. at 759, 102 S. Ct. 1388.
[“]Few consequences of judicial action are so grave as the severance of
natural family ties.” Id. at 787, 102 S. Ct. 1388; see also M.L.B. v. S.L.J.,
519 U.S. 102, 119, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996). The parental
rights at stake are [“]far more precious than any property right.” Santosky,
455 U.S. at 758-59 102 S. Ct. 1388. 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, 102 S. Ct. 1388 (recognizing that a decision 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, 102 S. Ct. 1388; see also Lassiter v. Dep’t of Soc. Servs. of
Durham Cnty., N.C., 452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d 640
(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, 102 S. Ct. 1388. 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).
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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 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).
Tennessee statutes governing parental termination proceedings
incorporate this constitutionally mandated standard of proof. Tennessee
Code Annotated section 36-1113[sic](c) provides:
Termination of parental or guardianship rights must be based
upon:
(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and
(2) That termination of the parent’s or guardian’s rights is in the
best interests of the child.
This statute requires the State to establish by clear and convincing proof
that at least one of the enumerated statutory grounds2 for termination exists
and that termination is in the child’s best interests. In re Angela E., 303
S.W.3d at 250; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “The best interests analysis is
separate from and subsequent to the determination that there is clear and
convincing evidence of grounds for termination.” In re Angela E., 303
S.W.3d at 254. Although several factors relevant to the best interests
analysis are statutorily enumerated,3 the list is illustrative, not exclusive.
The parties are free to offer proof of other relevant factors. In re Audrey S.,
182 S.W.3d at 878. The trial court must then determine whether the
combined weight of the facts “amount[s] to clear and convincing evidence
that termination is in the child’s best interest.” In re Kaliyah S., 455
S.W.3d 533, 555 (Tenn. 2015). These requirements ensure that each parent
receives the constitutionally required “individualized determination that a
parent is either unfit or will cause substantial harm to his or her child before
the fundamental right to the care and custody of the child can be taken
away.” In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999).
2
Tenn. Code Ann. § 36-1-113(g)(1)-(13).
3
Tenn. Code Ann. § 36-1-113(i).
13
Furthermore, other statutes impose certain requirements upon trial
courts hearing termination petitions. A trial court must “ensure that the
hearing on the petition takes place within six (6) months of the date that the
petition is filed, unless the court determines an extension is in the best
interests of the child.” Tenn. Code Ann. § 36-1113[sic](k). A trial court
must “enter an order that makes specific findings of fact and conclusions of
law within thirty (30) days of the conclusion of the hearing.” Id. This
portion of the statute requires a trial court to make “findings of fact and
conclusions of law as to whether clear and convincing evidence establishes
the existence of each of the grounds asserted for terminating [parental]
rights.” In re Angela E., 303 S.W.3d at 255. “Should the trial court
conclude that clear and convincing evidence of ground(s) for termination
does exist, then the trial court must also make a written finding whether
clear and convincing evidence establishes that termination of [parental]
rights is in the [child’s] best interests.” Id. If the trial court’s best interests
analysis “is based on additional factual findings besides the ones made in
conjunction with the grounds for termination, the trial court must also
include these findings in the written order.” Id. Appellate courts “may not
conduct de novo review of the termination decision in the absence of such
findings.” Id. (citing Adoption Place, Inc. v. Doe, 273 S.W.3d 142, 151 &
n.15 (Tenn. Ct. App. 2007)).
B. Standards of Appellate Review
An appellate court reviews a trial court’s findings of fact in
termination proceedings using the standard of review in Tenn. R. App. P.
13(d). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at
246. Under Rule 13(d), appellate courts review factual findings de novo on
the record and accord these findings a presumption of correctness unless
the evidence preponderates otherwise. In re Bernard T., 319 S.W.3d at
596; In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of
A.M.H., 215 S.W.3d 793, 809 (Tenn. 2007). 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. 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 at 393 (quoting In re
Adoption of A.M.H., 215 S.W.3d at 810). Additionally, all other questions
14
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., 483 S.W.3d 507, 521-24 (Tenn. 2016) (footnotes in original but
renumbered).
The Juvenile Court found that clear and convincing evidence was proven to
terminate Father’s parental rights for abandonment by wanton disregard pursuant to
Tenn. Code Ann. § 36-1-113(g)(1), which provides:
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following
grounds are cumulative and nonexclusive, so that listing conditions, acts or
omissions in one ground does not prevent them from coming within another
ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-
102, has occurred;
Tenn. Code Ann. § 36-1-113 (2017). As pertinent, Tenn. Code Ann. § 36-1-102
provides:
(1)(A) For purposes of terminating the parental or guardian rights of a
parent or parents or a guardian or guardians of a child to that child in order
to make that child available for adoption, “abandonment” means that:
***
(iv) A parent or guardian 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 or guardian has been incarcerated during all or part of the four
(4) months immediately preceding the institution of such action or
proceeding, and either has willfully failed to visit or has willfully failed to
support or has willfully failed to make reasonable payments toward the
support of the child for four (4) consecutive months immediately preceding
such parent’s or guardian’s incarceration, or the parent or guardian has
engaged in conduct prior to incarceration that exhibits a wanton disregard
for the welfare of the child. If the four-month period immediately
preceding the institution of the action or the four-month period immediately
preceding such parent’s incarceration is interrupted by a period or periods
15
of incarceration, and there are not four (4) consecutive months without
incarceration immediately preceding either event, a four-month period shall
be created by aggregating the shorter periods of nonincarceration beginning
with the most recent period of nonincarceration prior to commencement of
the action and moving back in time. Periods of incarceration of less than
seven (7) days duration shall be counted as periods of nonincarceration.
Periods of incarceration not discovered by the petitioner and concealed,
denied, or forgotten by the parent shall also be counted as periods of
nonincarceration. A finding that the parent has abandoned the child for a
defined period in excess of four (4) months that would necessarily include
the four (4) months of nonincarceration immediately prior to the institution
of the action, but which does not precisely define the relevant four-month
period, shall be sufficient to establish abandonment; or
Tenn. Code Ann. § 36-1-102(1)(A)(iv) (2017).
This Court discussed the ground of abandonment by wanton disregard in In re
Audrey S. stating:
Tenn. Code Ann. § 36–1–102(1)(A)(iv) also reflects the
commonsense notion that parental incarceration is a strong indicator that
there may be problems in the home that threaten the welfare of the child.
Incarceration severely compromises a parent’s ability to perform his or her
parental duties. 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. Taxonomy of Children’s Rights, 11 WM. & MARY BILL
RTS. J. at 958. However, parental incarceration is not an infallible
predictor of parental unfitness. Accordingly, Tenn. Code Ann. § 36–1–
102(1)(A)(iv)’s second test for abandonment does not make incarceration
alone a ground for the termination of parental rights. An incarcerated or
recently incarcerated parent can be found guilty of abandonment only if the
court finds, by clear and convincing evidence, that the parent’s pre-
incarceration conduct displayed a wanton disregard for the welfare of the
child. Thus, the parent’s 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.
***
16
We have repeatedly held that probation 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. See,
e.g., State Dep’t of Children’s Servs. v. J.M.F., No. E2003–03081–COA–
R3–PT, 2005 WL 94465, at *7–8 (Tenn. Ct. App. Jan.11, 2005), perm. app.
denied (Tenn. Mar. 21, 2005); In re C. LaC., No. M2003–02164–COA–
R3–PT, 2004 WL 533937, at *7 (Tenn. Ct. App. Mar.17, 2004) (No Tenn.
R. App. P. 11 application filed); In re C.T.S., 156 S.W.3d 18, 25 (Tenn. Ct.
App. 2004); In re C.W.W., 37 S.W.3d at 474–75.
In re Audrey S., 182 S.W.3d 838, 866-68 (Tenn. Ct. App. 2005) (footnote omitted).
Father argues in his brief on appeal that this case is similar to the case of In re
Dylan M.J. wherein this Court reversed a trial court’s termination of the parental rights of
a father who was incarcerated on charges of vehicular assault and violation of probation.
In re Dylan M.J., No. M2010-01867-COA-R3-PT, 2011 WL 941404 (Tenn. Ct. App.
March 17, 2011), no appl. perm appeal filed. The father in In re Dylan M.J. had been
arrested in 2003 for possession of marijuana for resale and theft of property with a value
between $1,000 and $10,000 and had been convicted and placed on probation. Id. at *1.
In April of 2007, the father went out one night “became intoxicated and was involved in
an automobile accident which apparently caused two people to suffer serious injuries.”
Id. at *2. The trial court terminated the father’s parental rights based upon the ground of
abandonment by wanton disregard. Id. at *3.4 This Court reversed the termination
finding that there was no proof whatsoever that the father had ever used marijuana in the
presence of the child, that the “child himself testified that he never saw Father drinking
beer during visitation,” that “despite the regrettable lapses in his behavior, Father 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,” and that the evidence simply did not rise to
the level of clear and convincing proof of wanton disregard. Id. at *8.
The case now before us is distinguishable from In re Dylan M.J. While it is true
that the father in In re Dylan M.J. and Father in the case now before us both incurred
charges for DUI and both had previous criminal charges, this is the extent of the
similarities between the two cases. In the case now before us on appeal, Father incurred
4
The trial court also terminated on the ground of abandonment for willfully failing to make payments
towards the support of the mother during the four months immediately preceding the child’s birth. Id. at
*3. This Court reversed with regard to this ground finding that no evidence had been presented that the
father, who was fifteen years old at the time, was aware of his duty to support or had the ability to
support, and, further, that events in the nine years since the birth of the child rendered this ground
inapplicable at the time of the filing of the petition. Id. at *7.
17
not only DUI charges, but also incurred multiple other serious criminal charges since
January of 2017 when the parties entered into the first mediated agreement allowing
Father visitation with the Child. Mere months after entering into the agreement allowing
him visitation, Father was arrested and charged with aggravated assault. Father then was
arrested a second time approximately one month later and again charged with aggravated
assault and with several other charges. Father’s conduct is far more egregious than the
conduct of the father in In re Dylan M.J.
Father also argues in his brief on appeal that the Trial Court erred in considering
his conduct prior to the birth of the Child. In support of this assertion, Father cites to a
comment contained within the transcript of the trial wherein the Trial Court noted that
Father has had multiple DUI charges over the years. As our Supreme Court has stated,
however: “the court speaks through its order, not through the transcript.” In re Adoption
of E.N.R., 42 S.W.3d 26, 31 (Tenn. 2001). The Trial Court’s order, as quoted more fully
above, does not show that the Trial Court inappropriately based its decision upon conduct
that occurred prior to the birth of the Child. This argument is without merit.
Father also argues in his brief on appeal that with regard to his pending charges
Father is innocent until proven guilty, and therefore, the Trial Court should not have
considered these charges when considering the ground of wanton disregard. We
disagree. As noted in In re Audrey S.: “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.” In re Audrey S., 182 S.W.3d at 866. Father chose to engage in
conduct that carried with it the risk of incarceration, as proven by the fact that Father was
indeed incarcerated as a result of his actions, and Father engaged in such conduct on
more than one occasion, as proven by the fact that Father was arrested on charges of
aggravated assault on both May 10, 2017 and June 28, 2017. While Father ultimately
may be found not guilty on his pending charges, there is no question but that he engaged
in conduct that carried a risk of incarceration. Furthermore, we note that Father incurred
these charges mere months after the parties entered into a mediated agreement allowing
Father to meet the Child and exercise visitation.
As already noted, Father relied on the Fifth Amendment and refused to answer
some questions about the incidents which resulted in his arrests and the pending charges.
As this Court explained in Levine v. March:
Comments regarding a criminal defendant’s exercise of his or her
Fifth Amendment rights are strictly prohibited by the federal and state
constitutions. However, the invocation of the Fifth Amendment privilege
in civil cases between private parties calls into play considerations quite
different from those pertinent in a criminal case. The United States
18
Supreme Court has determined that there is no constitutional impediment to
drawing an inference against a party invoking his or her Fifth Amendment
privilege in a civil case. Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S. Ct.
1551, 1558, 47 L. Ed. 2d 810 (1976); Robert Heidt, The Conjurer’s Circle—
The Fifth Amendment Privilege in Civil Cases, 91 Yale L.J. 1062, 1110–12
(1982). Accordingly, the majority of jurisdictions, including Tennessee,
permit fact-finders to draw adverse inferences against parties who invoke
their Fifth Amendment rights in civil case. See Rachels v. Steele, 633
S.W.2d 473, 476 (Tenn. Ct. App. 1981); VIII John H. Wigmore, Evidence §
2272, at 439 (McNaughton rev.1961).
Levine v. March, 266 S.W.3d 426, 442 (Tenn. Ct. App. 2007) (footnote omitted).
Father’s incarceration acted “as a triggering mechanism that allow[ed] 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 [Father] unfit
or poses a risk of substantial harm to the welfare of the child.” Id. at 866. Father himself
testified at trial that at least one of his aggravated assault charges arose from a domestic
incident that occurred in Father’s home. Furthermore, the record reveals other evidence
of Father’s inappropriately aggressive behavior. Mother testified about Father becoming
aggressive and frightening her, and Ms. Collier testified about Father’s inappropriately
aggressive behavior that caused Camelot to terminate Father’s visitations. Although
Father has not yet been convicted of his pending charges, and those charges could
ultimately be dismissed, Father’s conduct that led to these pending charges, along with
other instances of Father’s conduct proven at trial, show a pattern of conduct that poses a
risk of substantial harm to the welfare of the Child.
With regard to the grounds for termination, the Juvenile Court specifically found
and held:
The father’s pre-incarceration conduct displayed a wanton disregard for the
welfare of the child and the father was served with the Petition while
incarcerated. The father has had repeated incarcerations, criminal behavior,
a probation violation, and substance abuse issues as shown in his criminal
convictions that show wanton disregard for the welfare of the child.
The evidence in the record on appeal, as discussed more fully above, does not
preponderate against the Juvenile Court’s findings. We find no error in the Juvenile
Court’s finding by clear and convincing evidence that grounds existed to terminate
Father’s parental rights to the Child for abandonment by wanton disregard pursuant to
Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv).
19
We next consider whether the Juvenile Court erred in finding that clear and
convincing evidence had been proven that it was in the Child’s best interests for Father’s
parental rights to be terminated. With regard to making a determination concerning a
child’s best interests, our Supreme Court has instructed:
When conducting the best interests analysis, courts must consider
nine statutory factors listed in Tennessee Code Annotated section 36-1-
113(i). These statutory factors are illustrative, not exclusive, and any party
to the termination proceeding is free to offer proof of any other factor
relevant to the best interests analysis. In re Carrington H., 483 S.W.3d at
523 (citing In re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)).
Facts considered in the best interests analysis must be proven by “a
preponderance of the evidence, not by clear and convincing evidence.” In
re Kaliyah S., 455 S.W.3d at 555 (citing In re Audrey S., 182 S.W.3d at
861). “After making the underlying factual findings, the trial court should
then consider the combined weight of those facts to determine whether they
amount to clear and convincing evidence that termination is in the child’s
best interest[s].” Id. When considering these statutory factors, courts must
remember that “[t]he child’s best interests [are] viewed from the child’s,
rather than the parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878.
Indeed, “[a] focus on the perspective of the child is the common theme”
evident in all of the statutory factors. Id. “[W]hen the best interests of the
child and those of the adults are in conflict, such conflict shall always be
resolved to favor the rights and the best interests of the child. . . .” Tenn.
Code Ann. § 36-1-101(d) (2017).
Ascertaining a child’s best interests involves more than a “rote
examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878.
And the best interests analysis consists of more than tallying the number of
statutory factors weighing in favor of or against termination. White v.
Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts
and circumstances of each unique case dictate how weighty and relevant
each statutory factor is in the context of the case. See In re Audrey S., 182
S.W.3d at 878. Simply put, the best interests analysis is and must remain a
factually intensive undertaking, so as to ensure that every parent receives
individualized consideration before fundamental parental rights are
terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending 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
20
S.W.3d at 194). But this does not mean that a court is relieved of the
obligation of considering all the factors and all the proof. Even if the
circumstances of a particular case ultimately result in the court ascribing
more weight—even outcome determinative weight—to a particular
statutory factor, the court must consider all of the statutory factors, as well
as any other relevant proof any party offers.
In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).
In the case now before us, with regard to best interests the Juvenile Court found
and held:
That it is in the best interest of the child for the father’s parental
rights to be terminated. The father referred to his “wild and woolly days”
when he was young, but the Court cannot see that those days have ended.
The father has not made any adjustment or any lasting adjustment to his
circumstances that would make it safe and in the child’s best interest to be
in his home. The father has not had regular visitation with the child but has
only seen her three times. He cancelled the services of one supervising
agency, TAG, and Camelot refused to supervise any further visits of the
father due to his “tongue.” The father could not possibly have a meaningful
relationship with the child due to the few times that he has seen her. The
effect of the change of caregivers is not an issues [sic] in this case. There is
no proof of medical or emotional issues for the child, however, she has
thrived in the care of the mother and step-father. There is no proof of
mental or physical brutality by the father, though numerous charges are
pending for aggravated assault, none of which allege the minor child to be a
victim. There is no proof regarding the father’s home, though he has been
incarcerated for almost six months. The father has a pattern of alcohol
abuse without treatment, therefore the Court cannot conclude that he could
provide care for the child in a safe a [sic] stable manner. The father has
paid some child support, but the amount is not significant. Reviewing each
factor set forth by statute to determine what is in the best interest of the
child, the Court finds that it is in the best interest of the child for the
father’s parental rights to be terminated so that the child can have
permanency and stability.
Father argues in his brief on appeal that he never had a chance to get to know the
Child “primarily because of the actions of the Mother.” We agree that Father has not
gotten to know the Child, but we disagree that this is due primarily to Mother’s actions.
The parties entered into an agreement in January of 2017 allowing Father visitation with
21
the Child. After only a few visitations, Father cancelled the services of TAG for no good
reason and then engaged in conduct that was inappropriately aggressive causing Camelot
to terminate its visitation services. Thus, Father alone was the cause of the visitations
being terminated. The record reveals that Father then took no steps to attempt to obtain
further visitation. Furthermore, mere weeks after the visitation that he had exercised,
Father engaged in conduct that resulted in his being arrested and incarcerated, which is
where he remained at the time of trial. The reality that Father has not been able to get to
know the Child rests primarily upon the actions of Father.
The Juvenile Court considered the relevant statutory factors contained in Tenn.
Code Ann. § 36-1-113(i) when making its determination that it was in the Child’s best
interests for Father’s parental rights to be terminated. The evidence in the record on
appeal, as discussed more fully above, does not preponderate against the Juvenile Court’s
findings made by clear and convincing evidence. We find no error in the Juvenile
Court’s finding that it was in the Child’s best interests for Father’s parental rights to be
terminated.
Having found that grounds were proven to terminate Father’s parental rights to the
Child for abandonment by wanton disregard and that it was proven that it is in the Child’s
best interests for Father’s parental rights to be terminated, we affirm the Juvenile Court’s
January 24, 2018 order terminating Father’s parental rights to the Child.
Conclusion
The judgment of the Juvenile Court is affirmed, and this cause is remanded to the
Juvenile Court for collection of the costs below. The costs on appeal are assessed against
the appellant, Adam R. P.
______________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
22