In Re Haskel S. ( 2020 )

11/18/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 3, 2020
IN RE HASKEL S.
Appeal from the Juvenile Court for Van Buren County
No. 1036 Sammie E. Benningfield, Jr., Judge
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No. M2019-02256-COA-R3-PT
___________________________________
In this termination of parental rights case, Appellant/Father appeals the trial court’s
termination of his parental right to the minor child on the grounds of: (1) abandonment by
an incarcerated parent by willful failure to visit, willful failure to support, and wanton
disregard, Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(iv); (2) substantial
noncompliance with the requirements of the permanency plan, Tenn. Code Ann. § 36-1-
113(g)(2); and (3) failure to manifest a willingness and ability to parent the child, Tenn.
Code Ann. § 36-1-113(g)(14). Appellant also appeals the trial court’s finding that
termination of his parental rights is in the child’s best interest. We reverse the trial
court’s termination of Father’s parental rights on the grounds of abandonment by an
incarcerated parent for failure to visit and support. We affirm the trial court’s termination
of Father’s parental rights on all remaining grounds and on its finding that termination of
Father’s parental rights is in the child’s best interest.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Reversed in Part, Affirmed in Part, and Remanded
KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ANDY D. BENNETT, J., joined.
Michael J. Rocco, Sparta, Tennessee, for the appellant, Richard B.1
Herbert H. Slatery, III, Attorney General and Reporter, and Amber L. Seymour, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
1
In cases involving minor children, it is the policy of this Court to redact the parties’ names to
protect their identities.
OPINION
I. Background
Haskel S. (d/o/b August 2014) (the “Child”) was born out-of-wedlock to Appellant
Richard B. (“Father”) and Lauren D. On March 7, 2019, Lauren D. surrendered her
parental rights to the Child, and she is not a party to this appeal. After DNA testing
revealed that Richard B. is the Child’s biological parent, the Juvenile Court of Van Buren
County (“trial court”) entered an order, on August 10, 2018, establishing Father’s
paternity.
On May 1, 2017, the Child was placed in the custody of Appellee Tennessee
Department of Children’s Services (“DCS”) on allegations of dependency and neglect
due to mother’s living conditions and drug use in the home. The Child has remained in
foster care since that time. On July 6, 2017, the trial court adjudicated the Child to be
dependent and neglected as to Father.
Father has a long criminal history, including assault, disorderly conduct,
possession, driving on a revoked or suspended license, and probation violation. He has
been incarcerated numerous times throughout these proceedings, and he was incarcerated
at the time of the hearing on DCS’s petition to terminate his parental rights.
Despite his myriad incarcerations, DCS worked with Father to develop three
permanency plans, i.e., May 17, 2017, January 29, 2018, and July 26, 2018. Each of the
plans was ratified by the trial court and admitted into evidence at the hearing on the
petition to terminate Father’s parental rights. Father’s requirements under the plans
included: (1) resolve his legal issues and refrain from obtaining new charges; (2) obtain
safe and stable housing; (3) complete an alcohol and drug consultation and follow the
recommendations; (4) obtain and maintain sobriety; (5) submit to random drug screens;
(6) visit the child twice per month; (7) not associate with known drug users; and (8)
maintain a bond and relationship with the Child. In ratifying the permanency plans, the
trial court held that the foregoing requirements were reasonable and related to remedying
the conditions that necessitate foster care. Father does not dispute this finding.
On January 25, 2019, DCS filed its petition to terminate Father’s parental rights.
As grounds, DCS averred: (1) abandonment by an incarcerated parent for failure to
support; (2) abandonment by an incarcerated parent for failure to visit; (3) abandonment
by wanton disregard; (4) substantial noncompliance with the requirements of the
permanency plan; and (5) failure to manifest an ability and willingness to assume
custody. The trial court appointed a guardian ad litem for the child and appointed
counsel to represent Father.
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After several continuances, the trial court heard the petition to terminate Father’s
parental rights on October 25, 2019. As discussed below, in her opening statement,
DCS’s attorney announced that DCS would not pursue the ground of abandonment by an
incarcerated parent for failure to support. The trial proceeded on the remaining grounds
alleged in the petition, supra. Father did not testify, nor did he offer any countervailing
evidence. The only testimony was from DCS caseworkers, Sherri Phillips and Michelle
Barronhagarty, and from the Child’s foster father, Mark B.
By order of November 27, 2019, the trial court terminated Father’s parental rights
on the grounds of: (1) abandonment by an incarcerated parent for failure to support; (2)
abandonment by an incarcerated parent for failure to visit; (3) abandonment by wanton
disregard; (4) substantial noncompliance with the requirements of the permanency plan;
and (5) failure to manifest an ability and willingness to assume custody. The trial court
also found, by clear and convincing evidence, that termination of Father’s parental rights
is in the Child’s best interest. Father appeals.
II. Issues
We state the dispositive issues as follows:
1. Whether there is clear and convincing evidence to support at least one of the
grounds relied upon by the trial court to terminate Father’s parental rights.
2. Whether termination of Father’s parental rights is in the Child’s best interest.
III. Standard of Review
The Tennessee Supreme Court has previously explained that:
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, 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
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U.S. 745, 747, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (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). In
Tennessee, termination of parental rights is governed by statute, which identifies
“‘situations in which that 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) (citing Tenn. Code Ann. §
36-1-113(g))). Thus, a party seeking to terminate a parent’s rights must prove: (1) the
existence of one of the statutory grounds; and (2) 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).
Considering the fundamental nature of a parent’s rights and the serious
consequences that stem from termination of those rights, a higher standard of proof is
required in determining termination cases. Santosky, 455 U.S. at 769. As such, a party
must prove statutory grounds and the child’s best interest by clear and convincing
evidence. Tenn. Code Ann. § 36-3-113(c); 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 evidence[,]” and “produces in a fact-finder’s mind a firm belief or conviction
regarding the truth of the facts sought to be established.” In re M.J.B., 140 S.W.3d 643,
653 (Tenn. Ct. App. 2004).
In termination of parental rights cases, appellate courts review a trial court’s
factual findings de novo and accord these findings a presumption of correctness unless
the evidence preponderates otherwise. Tenn. R. App. P. 13(d); In re Carrington H., 483
S.W.3d at 523-24 (citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010); 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)). The Tennessee Supreme Court has explained that:
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 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 at 524.
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Furthermore, it is well settled that if 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.” In re Navada N., 498 S.W.3d 579, 591 (Tenn.
Ct. App. 2016) (citing 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)). Therefore, this
Court “gives great weight to the credibility accorded to a particular witness by the trial
court.” In re Christopher J., No. W2016-02149-COA-R3-PT, 2017 WL 5992359, at *3
(Tenn. Ct. App. Dec. 4, 2017) (citing Whitaker, 957 S.W.2d at 837). Here, at the close
of proof, the trial court found that
none of the witnesses’ credibility has been impeached in any regard, and . .
.the Court would have no reason to reject any of their testimonies . . . as
unbelievable, and so, finds the witnesses to be, in every respect, credible
and . . . their testimony is believed by the Court.
IV. Grounds for Termination of Father’s Parental Rights
Although only one ground must be proven by clear and convincing evidence in
order to terminate a parent’s rights, the Tennessee Supreme Court has instructed this
Court to review every ground relied upon by the trial court to terminate parental rights in
order to prevent “unnecessary remands of cases.” In re Angela E., 303 S.W.3d 240, 251
n. 14 (Tenn. 2010). Accordingly, we will review all of the foregoing grounds.
A. Abandonment by an Incarcerated Parent
Tennessee Code Annotated section 36-1-113(g)(1) allows for termination of
parental right where “[a]bandonment by the parent or guardian, as defined in § 36-1-102,
has occurred.” DCS filed its petition to terminate Father’s parental rights on January 25,
2019. At that time, Tennessee Code Annotated section 36-6-102(1)(A)(iv) defined
abandonment by an incarcerated parent as follows:
(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 failed to visit or has failed to support or has 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
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interrupted by a period or periods 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. . . . 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. . . .
Tenn. Code Ann. § 36-1-102(1)(A)(iv). The trial court held that Father’s parental rights
should be terminated on all three of the statutory definitions of abandonment, i.e., failure
to support, failure to visit, and wanton disregard. Under the foregoing definition,
termination of an incarcerated parent’s rights on the ground of either failure to support or
failure to visit requires the court to consider the parent’s visitation and support during a
statutorily defined four-month period. Concerning the relevant time period, in its petition
to terminate Father’s parental rights, DCS averred that:
23. The four month period for the measurement of abandonment under this
ground would be determined by aggregating periods of non-incarceration
beginning with the most recent period of non-incarceration prior to
commencement of the action and moving back in time.
24. If the proof shows that [Father] was not incarcerated in the four month
period prior to the filing of this petition, Petitioner pleads in the alternative
that [Father] has willfully abandoned the child for the four consecutive
months prior to the filing of this petition.
Then, in opening statements at the hearing on the petition to terminate Father’s parental
rights, counsel for DCS stated:
There is no four-month period of time that [Father] was not incarcerated, so
pursuant to TCA 36-1-102 (1)(A)(iv), the relevant period of time would be
created by aggregating the shorter periods of time of non-incarceration,
beginning with the most recent period of non -incarceration prior to the
commencement of the action and moving back in time. Also, periods of
incarceration less than seven days are treated as periods of non -
incarceration.
So, the relevant four—four-month period of time for the Court to
look at is from September 25, 2018 to January 24th, 2019. So, September
25th, 2018, to January 24th, 2019.
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In its order terminating his parental rights, the trial court found that
[Father] was incarcerated in the four months immediately preceding the
filing of the petition. He was incarcerated from December 19, 2018, to
December 21, 2018, in Van Buren County. Prior to that he was
incarcerated as follows: from September 21, 2018, to September 22, 2018,
in Bledsoe County; from August 21, 2018, to August 23, 2018, in Van
Buren County; from July 24, 2018, to July 25, 2018, in Bledsoe County;
from June 12, 2018, to June 15, 2018, in Sequatchie County; from May 17,
2018, to June 4, 2018, in Bledsoe County; on May 9, 2018, in Cumberland
County; on March 29, 2018, in Bledsoe County; from March 20, 2018, to
March 26, 2018 in Bledsoe County; from January 17, 2018, to January 18,
2018, in Bledsoe County; from May 11, 2017, to October 30, 2017, in Van
Buren County; and from May 1, 2017, to May 11, 2017, in Sequatchie
County.
There is no four month period of nonincarceration for Mr. Bolin;
therefore, the relevant four month period must be aggregated. When
aggregating, periods of incarceration that are less than seven days duration
are counted as periods of nonincarceration. With that in mind, the relevant
four month period of time would be from September 24, 2018, through
January 24, 2019.
In footnote 6 of its responsive brief, DCS concedes that the trial court applied the
incorrect four-month period but argues that this error does not necessitate reversal:
“Although the trial court applied the incorrect statutory period, the record still supports a
finding that Father failed to visit during the correct statutory period. . . .” Yet, it
appears DCS did not settle on the “correct statutory period” at any time during these
proceedings, up to and including the appeal. In arguing the ground of abandonment in its
brief, DCS states a date range different from the date range it stated at the hearing:
Here the termination petition was filed on January 25, 2019. During the
four months preceding the petition, Father was incarcerated on October 3,
2018, and November 6, 2018. See Tenn. Code Ann. § 36-1-102(1)(A)(iv)
(requiring that “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”).
Father also was incarcerated during the four-month period preceding
his October 3, 2018 incarceration [fn. 4: Tenn. Code Ann. § 36-1-
102(1)(A)(iv) (examining whether the parent “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”)]: he was incarcerated from June 12, 2018, through June 15,
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2018; from July 24, 2018, through July 25, 2018; and from August 21,
2018, through August 23, 2018. However, these periods of incarceration
were each less than seven days. See Tenn. Code Ann. § 36-1-102(1)(A)(iv)
[fn. 5 Tennessee Code Ann. § 36-1-102(1)(A)(iv) provides, “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 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 the 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.”]. And “[p]eriods of
incarceration of less than seven (7) days duration shall be counted as
periods of nonincarceration.” Because these periods of incarceration count
as periods of nonincarceration, there are four (4) consecutive months
without incarceration immediately preceding Father’s October 2018
incarceration. No aggregation is necessary, and the relevant four-month
period is from June 2 to October 2, 2018.
This Court has cautioned that
[t]he statute is very specific for an incarcerated parent with regard to the
relevant time period, limiting the analysis with regard to a failure to support
to the period of “four (4) consecutive months immediately preceding such
parent's or guardian's incarceration....” Tenn. Code Ann. § 36-1-
102(1)(A)(iv) (2010). “As we have previously opined, courts must ‘strictly
apply the procedural requirements in cases involving the termination of
parental rights.’” In re: Landon H., No. M2011-00737-COA-R3-PT, 2012
Tenn. App. LEXIS 24, at *11, 2012 WL 113659 (Tenn. Ct. App. Jan.11,
2012), no appl. perm. appeal filed (quoting Weidman v. Chambers, No.
M2007-02106-COA-R3-PT, 2008 Tenn. App. LEXIS 338, at *16, 2008
WL 2331037 (Tenn. Ct. App. June 3, 2008), no appl. perm. appeal filed ).
In re Eimile A.M., No. E2013-00742-COA-R3-PT, 2013 WL 6844096, *3 (Tenn. Ct.
App. Dec. 26, 2013). Likewise, in recent case of In re A.V.N., this Court stated:
We again emphasize that “courts must strictly comply with
procedural requirements in termination of parental rights cases.” In re
Landon H., No. M2011-00737-COA-R3-PT, 2012 WL 113659, at *6
(Tenn. Ct. App. Jan. 11, 2012) (citing Weidman v. Chambers, No. M2007-
02106-COA-R3-PT, 2008 WL 2331037 (Tenn. Ct. App. June 3, 2008)).
One such procedural requirement is that parents must be afforded sufficient
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notice of the ground being sought for termination of parental rights. See id.
Unless the ground is tried by implied consent, if the ground is not properly
pled, it cannot be considered as a potential ground for termination of
parental rights. See, e.g., In re Justine J., No. E2019-00306-COA-R3-PT,
2019 WL 5079354, *8 (Tenn. Ct. App. Oct. 10, 2019); In re K.N.B., No.
E2014-00191-COA-R3-PT, 2014 WL 4908505, at *13 (Tenn. Ct. App.
Sept. 30, 2014); In re Eimile A.M., No. E2013-00742-COA-R3-PT, 2013
WL 6844096, at *5 (Tenn. Ct. App. Dec. 26, 2013). Similarly, when
abandonment is pled as a potential ground for termination, the petitioner
must include the correct four-month period. See In re Justine J., 2019 WL
5079354, at *8; In re D.H.B., No. E2014-00063-COA-R3-PT, 2015 WL
1870303, at *5 (Tenn. Ct. App. Apr. 23, 2015). If an incorrect four-month
period is pled, the petition is deficient as a result of the parent being left
without the notice required to defend against the petition. See In re D.H.B.,
2015 WL 1870303, at *5 (citing In re K.N.B., 2014 WL 4908505, at *13).
In re A.V.N., No. E2020-00161-COA-R3-PT, 2020 WL 5496678, *8 (Tenn. Ct. App.
Sept. 10, 2020). At a minimum, due process requires “notice reasonably calculated . . . to
apprise interested parties of the pendency of the action and afford them an opportunity to
present their objections.” Keisling v. Keisling, 92 S.W.3d 374, 377 (Tenn. 2002)
(quoting State v. Pearson, 858 S.W.2d 879, 884 (Tenn. 1993)). In the first instance,
based on DCS’s petition, supra, it did not set out the correct four-month period so as to
put Father on notice. Rather, DCS took an either-or approach, stating that either the four-
month period should be aggregated or it should be the four months immediately
preceding the filing of the petition. While we concede that the calculation of the correct
statutory four-month period may prove difficult in cases, such as this, where the parent is
frequently incarcerated, it is DCS’s burden to arrive at the correct statutory period prior
to filing its petition for termination of parental rights. Alternatively, the correct statutory
period may be tried by consent of the parties. However, in this case, we cannot conclude
that the four-month period was tried by consent because there was never a definitive
agreement on what that period should be.
In addition to the mercurial four-month period, at the outset of the hearing on the
petition to terminate Father’s parental rights, counsel for DCS announced:
The Department alleged several grounds in the petition, but today we'll
proceed on the grounds of abandonment for failure to visit, abandonment
by wanton disregard, substantial noncompliance with the permanency plan,
and parent's failure to manifest an ability and willingness to personally
assume legal and physical custody and financial responsibility for the child.
Then, in closing, DCS’s counsel reiterated:
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MS. JENNINGS: And then the Department would, also alleged
abandonment for failure to support and then conceded and did not pursue it.
Can the Court make a finding either way on that ground?
THE COURT: Well, it, it -- what do you mean you conceded?
MS. JENNINGS: We, we did not pursue it in our line of questioning.
THE COURT: Well, the, the proof was that he's made two, two payments
toward support in, in two years, that he's had an opportunity -- of course,
he's been, much of that time, he's, he's been in, in jail, but there was also
proof, and I think this was elicited on examination by the Guardian ad
Litem, that he was not in any respect disabled and was capable of working,
he just didn't or he didn't support the child. So, for whatever reasons the
Department concedes that, the Court finds he has not supported the child
and he has abandoned the child in that respect, as well.
Although alleged in its petition to terminate Father’s parental rights, DCS clearly
withdrew the ground of abandonment by an incarcerated parent for failure to support.
Nonetheless, the trial court relied on this ground in terminating Father’s parental rights.
This was error because the ground was withdrawn at trial.
For the foregoing reasons, we reverse the trial court’s termination of Father’s
parental rights on the grounds of abandonment by an incarcerated parent for failure to
visit and failure to support.
Although we reverse the trial court’s termination of Father’s parental rights on the
grounds of abandonment by failure to support and visit, on the ground of abandonment
by wanton disregard, Tennessee courts have consistently held that we are not limited to
the four-month period preceding a parent’s incarceration to determine whether the parent
has engaged in conduct evidencing a wanton disregard for his or her children’s welfare.
In re F.N.M., No. M2015-00519-COA-R3-PT, 2016 WL 3126077, at *3 (Tenn. Ct. App.
Apr. 11, 2016); see also Dep’t of Children's Servs. v. Hood, 338 S.W.3d 917, 926 (Tenn.
Ct. App. 2009) (“parental conduct exhibiting wanton disregard for a child’s welfare may
occur at any time prior to incarceration and is not limited to acts occurring during the
four-month period immediately preceding the parent's incarceration”). As such, the trial
court’s error in calculating the relevant four-month period does not negate its termination
of Father’s parental rights on the ground of abandonment by wanton disregard, and we
will review this ground substantively.
Although incarceration itself is not a ground for the termination of a parent’s
rights, courts consider the incarceration 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.” In re Audrey S., 182
S.W.3d at 866.
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In its order terminating Father’s parental rights, the trial court found:
The Court finds that [Father] has engaged in conduct that exhibits a wanton
disregard for the welfare of the child in that he has failed to visit the child,
he has failed to support the child, he has continued to abuse alcohol and
drugs, he has continued to commit crimes that keep him incarcerated, he is
still incarcerated and facing criminal charges, he has done nothing to
comply with the permanency plans, he has done nothing to obtain housing,
and he does not have the ability to provide any of the necessities of life for
his child.
As set out above, the statute does not define “wanton disregard.” In re H.A.L.,
No. M2005-00045-COA-R3-PT, 2005 WL 954866, at *6 (Tenn. Ct. App. Apr. 25,
2005). Nonetheless, Tennessee courts have 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.” In re Audrey S., 182 S.W.3d at
867-68. “Our courts have consistently held that an incarcerated parent who has multiple
drug offenses and wastes the opportunity to rehabilitate themselves by continuing to
abuse drugs, resulting in revocation of their parole and reincarceration, constitutes
abandonment of the child, and demonstrates a wanton disregard for the welfare of the
child.” Dep't of Children’s Servs. v. J.M.F., No. E2003-03081-COA-R3-PT, 2005 WL
94465, at *7 (Tenn. Ct. App. Jan. 11, 2005) (citing In re C.T.S., 156 S.W.3d 18, 25
(Tenn. Ct. App. 2004); Dep't of Children's Servs. v. J.S., No. M2000-03212-COA-R3-
JV, 2001 WL 1285894, at *3 (Tenn. Ct. App. Oct. 25, 2001); In re C.W.W., 37 S.W.3d
467, 473 (Tenn. Ct. App. 2000). Indeed, the enactment of Tenn. Code Ann. § 36-1-
102(1)(A)(iv), supra, reflects the General Assembly’s recognition that “parental
incarceration is a strong indicator that there may be problems in the home that threaten
the welfare of the child” and that “[i]ncarceration severely compromises a parent’s ability
to perform his or her parental duties.” In re Audrey S., 182 S.W.3d at 866. “The actions
that our courts have commonly found to constitute wanton disregard reflect a ‘me first’
attitude involving the intentional performance of illegal or unreasonable acts and
indifference to the consequences of the actions for the child.” In re Anthony R., No.
M2014-01753-COA-R3-PT, 2015 WL 3611244, at *3 (Tenn. Ct. App. June 9, 2015).
Here, the record is replete with evidence of Father’s recidivism. The evidence
shows that Father was arrested or incarcerated numerous times during this Child’s life.
The Child was born in August 2014. Father was incarcerated in Sequatchie County from
August 17, 2014 through May 11, 2017 for violation of probation. On his release from
Sequatchie County, he was incarcerated in Van Buren County, from May 11, 2017 to
October 20, 2017, for probation violation in that county. From January 17, 2018 to
January 18, 2018, Father was incarcerated in Bledsoe County for assault; then he was re-
incarcerated in Bledsoe County from March 20, 2018 to March 26, 2018 for disorderly
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conduct. On March 29, 2018, he was cited in Bledsoe County for driving on a revoked or
suspended license and was charged with the same offense in Cumberland County on May
9, 2018. Father was incarcerated from May 17, 2018 until June 4, 2018 in Bledsoe
County on a bond revocation. On June 12, 2018, Father was arrested for simple
possession and non-payment of fines in Bledsoe County; he was incarcerated until June
15, 2018. Then, on July 24, 2018, he was arrested in Bledsoe County for driving on a
revoked or suspended license; he was released on July 25, 2018. However, on August
21, 2018, he was arrested in Van Buren County for failure to pay child support and was
released on August 23, 2018. In January 13, 2019, he was arrested in Bledsoe County on
vandalism charges. DCS filed its petition to terminate his parental rights on January 25,
2019. The hearing on the petition was held on October 25, 2019. Father was
incarcerated at the time of the hearing. The record clearly and convincingly shows that
Father has engaged in “behavior that resulted in incarceration[, which] 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.” In re Audrey S., 182 S.W.3d at 866. As such, we conclude
that the record supports the trial court’s termination of Father’s parental rights on the
ground of abandonment by wanton disregard.
B. Substantial Non-Compliance with the Permanency Plan
The trial court found, by clear and convincing evidence, that Father’s parental rights
should be terminated on the ground of failure to substantially comply with the
requirements of the permanency plan. Tennessee Code Annotated Section 36-1-
113(g)(2) provides that a parent’s rights may be terminated when “[t]here has been
substantial noncompliance by the parent . . . with the statement of responsibilities in a
permanency plan.”
“[T]he permanency plans are not simply a series of hoops for the biological parent to
jump through in order to have custody of the children returned.” In re C.S., Jr., et al.,
No. M2005-02499-COA-R3-PT, 2006 WL 2644371, at *10 (Tenn. Ct. App. Sept. 14,
2006). Rather,
the requirements of the permanency plan are intended to address the
problems that led to removal; they are meant to place the parent in a
position to provide the children with a safe, stable home and consistent
appropriate care. This requires the parent to put in real effort to complete
the requirements of the plan in a meaningful way in order to place herself in
a position to take responsibility for the children.
Id. As discussed by this Court in In re M.J.B., 140 S.W.3d 643 (Tenn. Ct. App. 2004):
Terminating parental rights based on Tenn. Code Ann. § 36-1-113(g)(2)
requires more proof than that a parent has not complied with every jot and
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tittle of the permanency plan. To succeed under Tenn. Code Ann. § 36-1-
113(g)(2), the Department must demonstrate first that the requirements of
the permanency plan are reasonable and related to remedying the conditions
that caused the child to be removed from the parent’s custody in the first
place, In re Valentine, 79 S.W.3d 539, 547 (Tenn. 2002); In re L.J.C., 124
S.W.3d 609, 621 (Tenn. Ct. App. 2003), and second that the parent’s
noncompliance is substantial in light of the degree of noncompliance and
the importance of the particular requirement that has not been met. In re
Valentine, 79 S.W.3d at 548-49; In re Z.J.S., No. M2002-02235-COA-R3-
JV, 2003 WL 21266854, at *12 (Tenn. Ct. App. June 3, 2003). Trivial,
minor, or technical deviations from a permanency plan’s requirements will
not be deemed to amount to substantial noncompliance. In re Valentine,
79 S.W.3d at 548.
Id. at 656-57. The Tennessee Supreme Court has explained that
[s]ubstantial noncompliance is not defined in the termination statute. The
statute is clear, however, that noncompliance is not enough to justify
termination of parental rights; the noncompliance must be substantial.
Black’s Law Dictionary defines “substantial” as “[o]f real worth and
importance.” Black’s Law Dictionary 1428 (6th ed. 1990). In the context
of the requirements of a permanency plan, the real worth and importance of
noncompliance should be measured by both the degree of noncompliance
and the weight assigned to that requirement.
In re Valentine, 79 S.W.3d 539, 548 (Tenn. 2002).
As discussed above, Father’s requirements under the permanency plans were to: (1)
resolve his legal issues and refrain from obtaining new charges; (2) obtain safe and stable
housing; (3) complete an alcohol and drug consultation and follow the recommendations;
(4) obtain and maintain sobriety; (5) submit to random drug screens; (6) visit the child
twice per month; (7) not associate with known drug users; and (8) maintain a bond and
relationship with the Child. In its order terminating his parental rights, the trial court
found that Father
has completed nothing on his permanency plans. He remains incarcerated
and facing criminal charges, he does not have housing, he has no
relationship with the child, and he still has alcohol and drug abuse issues. In
short, it has been the same old thing since this child has been in the custody
of the Department. [Father] has not even tried to work his permanency plan.
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The record supports the trial court’s findings. Ms. Phillips testified that Father’s drug and
alcohol abuse and the incarcerations stemming from his behaviors while under the
influence have been the primary concerns in this case. Although Ms. Phillips attempted
to work with Father to address his drug and alcohol abuse, she testified that he refused to
go to treatment. Instead, he continued to engage in behaviors that resulted in more
criminal charges and incarcerations. Father’s pattern of incarceration resulted in his
inability to provide suitable housing for the Child and his inability to visit the Child so as
to develop any parental bond. From the record, it is clear that Father failed to avail
himself of the opportunities presented to him. As such, he has failed to comply with the
reasonable and necessary requirements of the permanency plan. The trial court did not
err in terminating his parental rights on this ground.
C. Failure to Manifest a Willingness or Ability to Assume Custody
Tennessee Code Annotated section 36-1-113(g)(14) provides a ground for termination
of parental rights when
[a] parent or guardian has failed to manifest, by act or omission, an ability
and willingness to personally assume legal and physical custody or
financial responsibility of the child, and placing 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[.]
Tenn. Code Ann. § 36-1-113(g)(14). This ground requires DCS to establish two separate
elements by clear and convincing evidence. In re Maya R., No. E2017-01634-COA-R3-
PT, 2018 WL 1629930, at *7 (Tenn. Ct. App. Apr. 4, 2018) (citation omitted). First,
DCS must prove that Father “failed to manifest ‘an ability and willingness to personally
assume legal and physical custody or financial responsibility of the child.’” Id. (quoting
Tenn. Code Ann. § 36-1-113(g)(14)).2 Second, DCS must prove that placing the Child in
the Father’s legal and physical custody would “pose a risk of substantial harm to the
physical or psychological welfare of the child.” Id.
2
This Court is split over the proper interpretation of the first prong of Tennessee Code Annotated
Section 36-1-113(g)(14). See In re Ellie K., No. M2019-01269-COA-R3-PT, 2020 WL 1943522, at *9-
11. (Tenn. Ct. App. Apr. 23, 2020) (describing the Court’s conflicting views on the first prong of the
statute). The split concerns whether a parent must fail to manifest both an ability and willingness to
assume custody or financial responsibility or whether a parent must fail to manifest either an ability or
willingness to assume custody or financial responsibility. Compare In re Ayden S., No. M2017-01185-
COA-R3-PT, 2018 WL 2447044, at *7 (Tenn. Ct. App. May 31, 2018) with In re Amynn K., No. E2017-
01866-COA-R3-PT, 2018 WL 3058280, at *14 (Tenn. Ct. App. June 20, 2018). By order of June 15,
2020, the Tennessee Supreme Court certified two questions for review on this issue of statutory
interpretation involving the first prong of Tennessee Code Annotated section 36-1-113(g)(14). See In re
Nevaeh M., M2019-00313-SC-R11-PT.
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In its order terminating his parental rights, the trial court found:
40. [Father] is currently incarcerated and facing new criminal charges;
therefore, he is unable to personally assume legal and physical custody or
financial responsibility for the child. He has spent the greater part of the last
two years that the child has been in foster care committing crimes and
becoming incarcerated. [Father] has shown that he is not willing to
personally assume legal and physical custody or financial responsibility for
the child by his failure to support the child, his failure to visit the child, his
continued criminal activity, and his continued drug abuse.
41. Furthermore, 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. [Father] cannot take care of a child while he is
incarcerated. It would certainly cause this child physical harm to be placed
in the physical custody of [Father] because [Father] is in jail. It would also
cause psychological harm to be placed in the physical custody of [Father]
because the child has bonded with his foster parents and is thriving in their
home. The child has no relationship with [Father].
As discussed in detail above, Father’s refusal to seek treatment for his drug and
alcohol abuse has resulted in many incarcerations, which have rendered him unable to
parent this Child. Even when faced with the petition to terminate his parental rights,
Father refused to change his lifestyle. As Ms. Phillips testified:
Even the day that he was served the last termination petition, I [] went to
his mom’s home, met with him, had him served, we even talked about his
charges then, and he had told me that he was facing, he had a choice, either
a year in jail or a year at a residential treatment facility. I offered to get him
a bed somewhere, and he said, no, he’d rather spend a year in jail.
We can think of no clearer evidence of a parent’s lack of a willingness or ability to parent
a child that the parent’s choosing incarceration over treatment for addiction. Father has
made no efforts to change his behaviors so as to parent the Child. As such, we conclude
that the trial court did not err in terminating his parental rights on this ground.
V. Best Interest
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). As the Tennessee Supreme Court explained:
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Facts considered in the best interest 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).
In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).
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. As is
relevant to this appeal, 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 made such an adjustment after
reasonable efforts by available social services agencies for such duration of
time that lasting adjustment does not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely to
have on the child’s emotional, psychological and medical condition;
(6) Whether the parent or guardian, or other person residing with the parent
or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or adult
in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s home is
healthy and safe, whether there is criminal activity in the home, or whether
there is such use of alcohol, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care
for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
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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 . . . .
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. Aug. 11, 2005),
perm. app. denied (Tenn. Nov. 21, 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.
White v. Moody, 171 S.W.3d at 194.
In its order terminating his parental rights, the trial court specifically considered
each of the foregoing statutory factors and found that each weighed against Father.
Specifically, the trial court found:
44. Tenn. Code Ann. § 36-1-113(i)(1) requires the court to consider
whether the parent has made and adjustment of circumstances, conduct, or
conditions as to make it safe and in the child’s best interest to be in the
home of the parent. In this case, [Father] has done nothing to avail himself
of the services offered to him. In fact, he elected to be incarcerated rather
than go to drug treatment. [Father] has not adjusted his circumstances in
the least degree. He continues to commit crimes, he continues to be
incarcerated, he has not addressed his drug and alcohol issues, and he does
not have a suitable home for the child.
45. Tenn. Code Ann. § 36-1-113(i)(2) requires the court to consider
whether the parent has failed to effect a lasting adjustment after reasonable
efforts by available social services agencies for such duration of time that
lasting adjustment does not reasonably appear possible. In this case,
[Father] has not made a lasting adjustment. He has made no adjustment at
all. [Father] is in the same circumstance on the day of trial that he was
when the case began. He was offered services, but he did not take
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advantage of any of them. His case manager testified that she tried to get
him into treatment, she tried to get him employment, and she tried to get
him housing, but [Father] would not take advantage of anything that was
offered to him.
46. Tenn. Code Ann. § 36-1-113(i)(3) requires the Court to consider
whether the parent has maintained regular visitation or other contact with
the child. The proof in this case is that [Father] has seen the child six times
during the life of the dependency and neglect case. In the last year, he
visited for three hours. The Court finds that [Father] has not maintained
regular visitation or other contact with the child.
47. Tenn. Code Ann. § 36-1-113(i)(4) requires the Court to consider
whether a meaningful relationship has otherwise been established between
the parent or guardian and the child. In this case, as discussed above, the
Court finds that there is no meaningful relationship between [Father] and
the child.
48. Tenn. Code Ann. § 36-1-113(i)(5) requires the Court to consider the
effect a change of caretakers and physical environment is likely to have on
the child's emotional, psychological and medical condition. The case
manager testified that if the child were to have a change of caretakers, it
would be detrimental to his well-being. When he first came into the care of
the foster parents, he rarely spoke and had behavioral issues. Now, the child
is thriving in the care of the foster parents. The foster parents’ home is the
only consistent home the child has known during his life.
49. Tenn. Code Ann. § 36-1-113(i)(6) requires the Court to consider
whether the parent or other person living with the parent has shown
brutality, physical, sexual, emotional or psychological abuse, or neglect
toward the child or another child or adult in the family or household. The
proof that [Father] has domestic assault charges shows that he has shown
brutality toward another person in the household. Also, [Father] still has
substance abuse issues that lead to neglect of the child.
50. Tenn. Code Ann. § 36-1-113(i)(7) requires the Court to consider
whether the physical environment of the parent’s home is healthy and safe,
whether there is criminal activity in the home, or whether there is such use
of alcohol, controlled substances or their analogues as may render the
parent consistently unable to care for the child in a safe and stable manner.
The Court finds that jail is not healthy or safe for a child. Even if he were
not incarcerated, [Father’s] home would not be safe or appropriate. He
would be living with his mother who has a criminal history. [Father] has
criminal activity that must be resolved and substance abuse issues that
would render his home unsafe for the child.
51. Tenn. Code Ann. § 36-1-113(i)(8) requires the Court to consider
whether the parent’s mental and/or emotional status would be detrimental
to the child or prevent the parent from effectively providing safe and stable
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care and supervision for the child. [Father] is currently awaiting
sentencing. He has failed to complete any sort of rehabilitation program.
These circumstances cause the Court to question his mental status. His
criminal activity and drug use call his mental and emotional status into
question and would be detrimental to the child.
52. Tenn. Code Ann. § 36-1-113(i)(9) requires the Court to consider
whether the parent has paid child support. It has been established that
[Father] has made a couple of payments. These payments are not
consistent.
53. In addition to the best interest factors in the statute, the Court also
considers the fact that the child has been in the same foster home for two
years. During that time, the child has made substantial improvement in
many areas of maturation. He is bonded with the resource parents and
refers to them as “Mom” and “Dad.” Furthermore, the foster parents wish
to adopt the child.
54. The Court further finds that it is in the child’s best interest to have
permanency. [Father] cannot provide permanency.
For many of the reasons discussed above, the record supports the trial court’s
finding that termination of Father’s parental rights is in the Child’s best interest. Father
has failed to make any change in his lifestyle and has refused any offer of assistance by
DCS. He has remained incarcerated for most of the Child’s life, and this fact has
rendered him unable to visit the Child or to provide safe and stable housing for him. Ms.
Phillips testified that Father visited the Child no more than three times during these
proceedings. At one visit, she testified that the Child was playing with Father’s hat, and
Father became irritated and concerned that the Child would damage his hat. So, even in
the brief interchanges between Father and Child, Father has been unable to show his
ability to parent. As such, there is no meaningful relationship between Father and the
Child. Ms. Phillips and Ms. Barronhagarty both testified that the Child does not refer to
Father as his parent; rather he refers to his foster father, Mark B., as “daddy.” Mark B.
testified that the Child has bonded with the foster family, and they wish to adopt him.
While in the care of his foster family, Mark B. testified that the Child has thrived. He is
healthy and happy. To remove him from the only stable environment he has ever known
would likely cause the Child great emotional distress. It is in the Child’s best interest to
be adopted into this family, where he is loved and cared for. The record clearly and
convincingly supports the trial court’s finding that termination of Father’s parental rights
is in the Child’s best interest.
VI. Conclusion
For the foregoing reasons, we reverse the trial court’s termination of Appellant’s
parental rights on the grounds of abandonment by an incarcerated parent for failure to
visit and support. We affirm the trial court’s termination of Appellant’s parental rights
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on all other grounds and on its finding that termination of Appellant’s parental rights is in
the Child’s best interest. The case is remanded for such further proceedings as may be
necessary and are consistent with this opinion. Costs of the appeal are assessed to the
Appellant, Richard B. Because Richard B. is proceeding in forma pauperis in this
appeal, execution for costs may issue if necessary.
_________________________________
KENNY ARMSTRONG, JUDGE
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