In Re Jackson H. ( 2021 )

08/25/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs July 1, 2021
IN RE JACKSON H.
Appeal from the Juvenile Court for Giles County
No. JV-690 Robert C. Richardson, Jr., Judge
No. M2020-01551-COA-R3-PT
The trial court terminated a father’s parental rights to his child on the grounds of (1)
persistence of conditions, (2) failure to manifest an ability and willingness to personally
assume custody or financial responsibility, (3) substantial noncompliance with the
permanency plan, and (4) abandonment by wanton disregard. The trial court also found
that termination of the father’s parental rights was in the child’s best interest. Although
we reverse three of the termination grounds, we affirm the trial court’s conclusion that
clear and convincing evidence supports a finding of abandonment by wanton disregard.
We also affirm the trial court’s determination that the termination of the father’s parental
rights is in the best interest of the child.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Reversed in Part, Affirmed in Part; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which ANDY D. BENNETT,
J., joined, and J. STEVEN STAFFORD, P.J., W.S., filed a separate dissenting opinion.
Mattea L. Rolin, Elkton, Tennessee, for the appellant, Joshua H.
Herbert H. Slatery, III, Attorney General & Reporter, and Jordan K. Crews, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
Jessica Sloan Elam, Columbia, Tennessee, Guardian ad litem.
OPINION
I. BACKGROUND
Jackson H. (“child”) was born in April 2016 during the marriage of Joshua M.H.
(“Father”) and his then-wife (“Mother”). Mother surrendered her parental rights to the
child in June 2020. She is not participating in this appeal.
On June 6, 2016, Lieutenant Hunter of the Giles County Sheriff’s Department
filed a petition alleging that the child was dependent and neglected. Specifically, the
petition alleged that around May 15, 2016—when the child was a newborn—Father “held
the [child] upside down by both feet and threatened to drop [him] if [Mother] did not take
photos of two girls (age 10 + 11) in the nude including their genital area.” Mother
allegedly took the photos, “which included photos of their [genitals],” and “gave the
photos to Father, who then [used the photos for inappropriate purposes].” Lieutenant
Hunter further alleged that “Father is a convicted violent sex offender,” was “in custody,”
and “ha[d] a bond of $720,000.00.” Based on the allegations, the juvenile court (“trial
court”) ordered that the child be placed in the custody of the Tennessee Department of
Children’s Services (“DCS”). Through counsel, Father waived the preliminary hearing.
On July 12, 2016, the trial court found as follows:
Upon stipulation of the parties, the court finds by clear [and] convincing
evidence that the child is dependent and neglected as alleged in the petition.
Father makes no stipulation as to [the] allegations in [the] petition being
true or false. But [Father] [] make[s] a best interest stipulation as to the
child’s [dependency and neglect] and factually admits he is currently
incarcerated.
The trial court ordered the child to remain in DCS’s custody and ordered that
Father have no contact with the child, pending further hearing. DCS developed two
permanency plans dated July 2016 and September 2017. Under both plans, Father was
required to contact DCS within three days of his release from prison. Both permanency
plans were ratified and received by Father.
On October 8, 2018, DCS petitioned to terminate Father’s parental rights to the
child. The termination proceedings were stayed pending resolution of a petition for
custody and adoption filed in chancery court by the child’s grandparents. The chancery
court dismissed the grandparents’ petition. Father answered DCS’s petition on July 8,
2020. After two continuances, the case proceeded to trial on September 4, 2020. Father,
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Foster Father, and then-family service worker Savannah Boshers testified.1 The child
was then four years old, and a guardian ad litem represented his interests. Three
significant facts were established by the undisputed evidence at trial and are also
conceded on appeal: (1) the charges against Father pursuant to state criminal statutes
were dismissed; (2) a federal grand jury returned an indictment charging Father with one
or more crimes under certain federal statutes; and (3) at the time of trial, Father was
incarcerated in a federal prison pending further proceedings on the federal criminal
charge(s).2
By order entered October 20, 2020, the trial court found clear and convincing
evidence of the following grounds for termination: (1) persistence of conditions, (2)
failure to manifest an ability and willingness to personally assume custody or financial
responsibility, (3) substantial noncompliance with the permanency plan,3 and (4)
abandonment by exhibiting a wanton disregard for the child’s welfare. The trial court
also determined that termination of Father’s parental rights was in the best interest of the
child. Father appealed.
II. ISSUES
On appeal, Father raises one issue: “were the statutory requirements for
termination of [Father’s] rights met and was it in the best interest of the minor child to
terminate said parental rights.” In the posture of appellee, DCS raises as an issue whether
this court “should take judicial notice of the certified federal court documents regarding
Father’s criminal charges.”
III. STANDARD OF REVIEW
Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn.
Ct. App. 1988). This right “is among the oldest of the judicially recognized liberty
interests protected by the Due Process Clauses of the federal and state constitutions.” In
re M.J.B., 140 S.W.3d 643, 652–53 (Tenn. Ct. App. 2004). “Termination of a person’s
1
The testimony will be discussed in greater detail below as relevant to the issues on appeal.
2
Father participated in the trial by telephone.
3
In its petition, DCS did not allege against Father the ground of substantial noncompliance with
the permanency plan. Upon DCS’s motion at trial and pursuant to Tennessee Rule of Civil Procedure
15.02, the trial court permitted amendment of the petition to conform to the evidence.
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rights as a parent is a grave and final decision, irrevocably altering the lives of the parent
and child involved and ‘severing forever all legal rights and obligations’ of the parent.”
Means v. Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. §
36-1-113(I)(1)). “‘[F]ew consequences of judicial action are so grave as the severance of
natural family ties.’” M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v.
Kramer, 455 U.S. 745, 787 (1982)).
Although parental rights are superior to the claims of other persons and the
government, they are not absolute and may be terminated upon appropriate statutory
grounds. See In Re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Blair v. Badenhope,
77 S.W.3d 137, 141 (Tenn. 2002). Due process requires clear and convincing evidence
of the existence of the grounds for termination. In re Drinnon, 776 S.W.2d at 97. A
parent’s rights may be terminated only 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) [t]hat termination of the parent’s or guardian’s rights is in the best interest[]
of the child.
Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing
evidence proves not only that statutory grounds exist [for the termination] but also that
termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The existence of at least one statutory basis for termination of parental rights will
support the trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467,
473 (Tenn. Ct. App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d
838 (Tenn. Ct. App. 2005).
The heightened burden of proof in parental termination cases minimizes the risk of
erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998). “Evidence satisfying the clear and convincing evidence
standard establishes that the truth of the facts asserted is highly probable and eliminates
any serious or substantial doubt about the correctness of the conclusions drawn from the
evidence.” In re Audrey S., 182 S.W.3d at 861 (citations omitted). It produces in a fact-
finder’s mind a firm belief or conviction regarding the truth of the facts sought to be
established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83
S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474.
In 2016, the Tennessee Supreme Court provided guidance to this court in
reviewing cases involving the termination of parental rights:
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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). 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 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.
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. 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 Carrington H., 483 S.W.3d 507, 523–24 (Tenn. 2016) (citations omitted); see also
In re Gabriella D., 531 S.W. 3d 662, 680 (Tenn. 2017).
Lastly, in the event that 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)). “Thus, 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).
IV. DISCUSSION4
1.
We will first address the issue raised by DCS. DCS urges this court to consider
certified copies of certain filings from Father’s federal district court proceedings. The
filings are presented in a 30-page appendix to DCS’s appellate brief. This court “may
consider those facts established by the evidence in the trial court and set forth in the
record and any additional facts that may be judicially noticed or are considered pursuant
to Rule 14.” Tenn. R. App. P. 13(c). DCS acknowledges that the federal court filings
4
We will reference the statutes which were in effect when DCS filed the petition for termination
of parental rights in October of 2018.
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were not introduced as evidence at trial and, therefore, cannot be included in a
supplemental record under Tennessee Rule of Appellate Procedure 24(e). Most of these
filings are dated 2019, nearly a year preceding the trial and judgment in this matter, so
DCS further concedes that they cannot be considered pursuant to Rule 14. See Tenn. R.
App. P. 14 (setting forth procedure by which the appellate courts “may consider facts
concerning the action that occurred after judgment.”). Instead, DCS requests that we take
judicial notice of all of the facts contained in the various federal court filings. DCS’s
argument on this issue is unpersuasive, particularly in light of DCS’s choice not to
introduce certified copies of the federal court filings for the trial court’s consideration.
Moreover, “[w]e cannot take judicial notice of materials appended to briefs that are not
properly part of the record on appeal.” Willis v. Tennessee Dep’t of Correction, 113
S.W.3d 706, 713 n.6 (Tenn. 2003) (declining to take judicial notice of a disciplinary
infraction report attached to an appellate brief but not introduced in the trial court). In
addition, the filing dated December 3, 2020, is post hoc evidence irrelevant to our review
of the trial court’s factual findings and legal conclusions in the case at bar.
2.
Next, we must address a concern about the trial court’s order terminating parental
rights. Throughout its petition, DCS listed specific federal criminal statutes as well as
corresponding mandatory minimum sentences. DCS’s petition alleged that Father was
charged with crimes pursuant to these statutes and was “awaiting trial” on the charges.
During the trial on the petition to terminate parental rights, the trial court instructed
Father that he could assert the “Fifth Amendment privilege at any time if the question
infringes on what is potentially a harmful aspect to [the federal district court
proceedings].” The trial court further instructed, “anytime that you assert that Fifth
Amendment privilege, though, I can infer from that what I want to.” This was a proper
instruction because in civil cases, the trier of fact may draw a negative inference from a
party’s invocation of the Fifth Amendment if there is independent evidence of the fact to
which a party refuses to testify. Akers v. Prime Succession of Tennessee, Inc., 387
S.W.3d 495, 506 (Tenn. 2012). Our Supreme Court has held that the negative inference
may be drawn “only when there is independent evidence of the fact to which a party
refuses to answer by invoking his or her Fifth Amendment privilege. In instances when
there is no corroborating evidence to support the fact under inquiry, no negative inference
is permitted.” Id. (emphasis added). The Fifth Amendment “privilege attaches only to
the question being asked and the information sought by that particular question.” In re
Alfonzo, No. M2016-00867-COA-R3-PT, 2016 WL 6299492, at *5 (Tenn. Ct. App. Oct.
26, 2016) (citing Akers, 387 S.W.3d at 507). “Consequently, a negative inference is only
available on a question-by-question basis.” Id. (citing Akers, 387 S.W.3d at 506–07).
Father invoked his Fifth Amendment privilege against self-incrimination in
response to these questions:
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Q. What are your federal charges right now?
Q. Is your first count conspiracy to produce child pornography?
Q. Are counts 2 through 10 production of child pornography?
Q. Count 11 is possession of child pornography?
Q. If you pled to the charges that you have right now, what is the minimum
sentence that you could be facing?
Q. It could be 15 years?
Q. Could it be 100 years?
Q. If it was a minimum of a 15-year sentence and this child is now four
years old, this child would be 18 before you’d have a chance to get out[,]
right?
Q. Those charges in Alabama making you a sex offender, don’t those tend
to make these federal charges a little bit worse for you?
Q. Don’t those enhance what can happen to you with those federal
charges?
Q. Are you going to be incarcerated for the near future?
DCS’s trial counsel requested the trial court to draw a negative inference from Father’s
invocation of the Fifth Amendment in response to all of these questions, but it is unclear
from the transcript which assertions of Fifth Amendment privilege by Father were given
a negative inference. The trial court’s order does not state whether the trial court drew a
negative inference from Father’s response to any of these questions or to any other
question. Even if the trial court had drawn a negative inference from Father’s response to
the above questions, it would constitute error because the record before us contains no
independent evidence of the facts about which DCS’s trial counsel inquired in its
questioning of Father. See Akers, 387 S.W.3d at 506. The only evidence before the trial
court on this general subject was offered through the testimony of Ms. Boshers:
Q. How long has [Father] been in custody? Incarcerated, rather?
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A. To my knowledge, it’s been since June of 2016.
...
Q. Is [Father] in a position now to have custody of his child?
A. No, he’s not.
Q. Why?
A. He is still incarcerated with an unknown time of being released from
jail.
When asked about the “current[]” charges against Father, Ms. Boshers responded, “I
know there is [sic] child pornography charges,” but she did not specify what the charges
were. Ms. Boshers asserted that prior to incarceration “[Father] was already a sex
offender in Alabama.” On cross examination, Father’s counsel questioned whether Ms.
Boshers knew “what the charges were [against Father] in Alabama.” Ms. Boshers stated,
“It was inappropriate contact with a minor.” Ms. Boshers advised, “we are not aware” if
and when Father would be released from incarceration. Notably, upon Father’s
objection, the trial court excluded testimony regarding the possible length of a prison
sentence if Father were to be convicted of “those charges.” Such testimony was excluded
on the bases of speculation and hearsay.
As mandated, we have reviewed carefully the trial court’s findings on each ground
for termination. In re Carrington H., 483 S.W.3d at 525–26 (“the Court of Appeals must
review the trial court’s findings as to each ground for termination and as to whether
termination is in the child’s best interests, regardless of whether the parent challenges
these findings on appeal.”). Our goal is to “ensure that fundamental parental rights are
not terminated except upon sufficient proof, proper findings, and fundamentally fair
procedures.” Id. at 525. Regrettably, the findings of fact supporting the termination
ground of persistence of conditions5 and the ground of failure to manifest an ability and
willingness to personally assume custody or financial responsibility6 contain facts not in
evidence, as well as blatant misstatements of the testimony. For instance, on the ground
of persistence of conditions, the trial court found:
5
Tenn. Code Ann. § 36-1-113(g)(3)(A).
6
Tenn. Code Ann. § 36-1-113(g)(14).
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[Father] testified that he has been incarcerated since June 3, 2016 . . . .[7]
[Father’s] testimony at trial showed, if convicted of his pending child
pornography charges, that he may have a federal sentence as short as 15
years and as long as 100 years. The sentences are mandatory without the
possibility of parole. [Father’s] status as a registered sex offender in
Alabama will enhance his federal sentence, provided he is convicted. If
[Father] received the shortest possible sentence, the child will reach
majority long before [Father] is released . . . . [Father’s] release is unlikely
in the near future.
Similarly, on the ground of failure to manifest an ability and willingness to personally
assume custody or financial responsibility, the trial court found, “[Father] is awaiting
sentencing. If convicted as charged, there is undisputed evidence that [he] will have a
total effective, minimum sentence of 15 years and a maximum sentence of 100 years for
child pornography charges.”
Again, Father asserted his Fifth Amendment privilege against self-incrimination in
response to questions about specific federal criminal charges, the possible range of
sentence, the possibility of parole, and potential aggravating factors. Nor does the record
contain independent evidence of these facts. The trial court specifically excluded from
evidence Ms. Boshers’ speculative testimony on the possible length of any sentence of
incarceration, and the aforementioned factual information did not come in through the
testimony of another witness. Because there is no evidentiary support in the record for
the foregoing factual findings, they are reversed. We have determined that there is not
clear and convincing evidence sufficient to prove the grounds of persistence of
conditions, Tenn. Code Ann. § 36-1-113(g)(3)(A), and failure to manifest an ability and
willingness to personally assume custody or financial responsibility, Tenn. Code Ann. §
36-1-113(g)(14). Accordingly, we reverse the trial court’s judgment terminating Father’s
parental rights based upon these two grounds.
It bears noting that DCS’s trial counsel prepared the order terminating Father’s
parental rights. In the process, mere allegations (such as mandatory minimum sentences
and aggravating factors pursuant to certain federal child pornography statutes), evidence
ruled inadmissible, and facts that DCS failed to prove at trial were inserted as the trial
court’s independent findings. We encourage DCS to review this court’s and the
Tennessee Supreme Court’s guidance on party-prepared orders. See, e.g., Smith v. UHS
of Lakeside, Inc., 439 S.W.3d 303 (Tenn. 2014); In re Nathan C., No. E2019-01197-
COA-R3-PT, 2020 WL 730623 (Tenn. Ct. App. Feb. 12, 2020); In re Colton B., No.
M2017-00997-COA-R3-PT, 2017 WL 6550620 (Tenn. Ct. App. Dec. 22, 2017).
7
Father did not so testify, but this fact was established through the testimony of Ms. Boshers.
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3.
Substantial Noncompliance with the Permanency Plan
A court may terminate a parent’s parental rights when the parent is in “substantial
noncompliance . . . with the statement of responsibilities in a permanency plan.” Tenn.
Code Ann. § 36-1-113(g)(2). In terminating parental rights under this ground, the court
“must first find that the plan requirements are reasonable and related to conditions that
necessitate foster care placement.” In re Hannah H., No. E2013-01211-COA-R3-PT,
2014 WL 2587397, at *10 (Tenn. Ct. App. June 10, 2014). “The trial court must then
find that the noncompliance is substantial.” Id. (citation omitted). Although the
termination statute does not define what conduct constitutes substantial noncompliance,
the significance of the noncompliance “should be measured by both the degree of
noncompliance and the weight assigned to that requirement.” In re Valentine, 79 S.W.3d
at 548.
Here, the trial court found that Father’s responsibility under the permanency plan
was to contact DCS within three days of his release from prison. The court further found
that “the responsibilities under the plan were reasonable and related to remedying the
conditions that led to the child being placed in foster care[,] and in the child’s best
interest.” The court concluded that Father’s “failure to be released from incarceration
constitutes substantial noncompliance,” and terminated Father’s parental rights for this
reason. On appeal, DCS does not defend the trial court’s findings on this ground for
termination. Citing In re Ke’Andre C., DCS concedes that because Father’s sole task
pursuant to the permanency plan cannot be completed until Father is actually released
from prison, his incarceration was effectively a complete barrier to fulfilling the plan’s
requirements. In re Ke’Andre C., No. M2017-01361-COA-R3-PT, 2018 WL 587966, at
*9 (Tenn. Ct. App. Jan. 29, 2018) (reasoning that “incarceration does not relieve a parent
of their responsibilities to their children,” but reversing finding of substantial
noncompliance with a permanency plan under factual scenario where terminating a
father’s rights on that ground “would be tantamount to terminating his parental rights
solely based on his incarceration”); see also In re Jonathan F., No. E2014-01181-COA-
R3-PT, 2015 WL 739638, at *13 (Tenn. Ct. App. Feb. 20, 2015) (cautioning courts “to
avoid making incarceration solely on its own into a de facto ground for termination”).
Considering the foregoing and based upon our review of the record, we have
determined that the evidence is not sufficient to prove the ground of substantial
noncompliance with the permanency plan. Accordingly, we reverse the judgment of the
trial court terminating Father’s parental rights on the ground of substantial
noncompliance with the permanency plan.
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4.
Abandonment by Wanton Disregard
Parental rights may be terminated for abandonment, as defined in Tennessee Code
Annotated section 36-1-102. Tenn. Code Ann. § 36-1-113(g)(1). As relevant here,
abandonment can be found when a parent who is incarcerated when the termination
petition is filed “has engaged in conduct prior to incarceration that exhibits a wanton
disregard for the welfare of the child.” Tenn. Code Ann. § 36-1-102(1)(A)(iv). The
relevant pre-incarceration period for conduct exhibiting wanton disregard referred to in
section 36-1-102(1)(A)(iv) “is not limited to acts during the four-month period
immediately preceding the incarceration.” In re Jeremiah T., No. E2008-02099-COA-
R3-PT, 2009 WL 1162860, at *8 (Tenn. Ct. App. Apr. 30, 2009) (citing In re Audrey S.,
182 S.W.3d at 871).
“Wanton disregard” is not a defined term, but this court has “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.” In re Audrey S., 182 S.W.3d at 867–68 (citations omitted). Tennessee Code
Annotated section 36-1-102(1)(A)(iv) represents the General Assembly’s “commonsense
notion 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).
The trial court’s order terminating Father’s parental rights included the following
findings:
Pursuant to § 36-1-113(g)(1) and 36-1-102(1)(A)(iv) the Court finds clear
and convincing evidence that [Father] is a parent of [the child] subject of
the petition for termination of parental rights. Further, the Court concludes
that [Father] engaged in conduct prior to incarceration that exhibits a
wanton disregard for the welfare of the child. [Father] was incarcerated at
the time the petition to terminate parental rights was filed and all of the four
(4) months immediately preceding filing of the Petition.
...
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The In RE Audrey S. examples of conduct that demonstrate wanton
disregard are applicable here for criminal behavior . . . and adequate
supervision. Ms. Boshears [sic] testified that [Father] threatened to drop
the child on his head. [Father] demonstrated wanton disregard by acting
criminally and was not adequately supervising the child.
Father does not directly challenge the trial court’s findings on this or any other
ground. Instead, he references a ground for termination which was neither alleged by
DCS nor found by the trial court. Upon our review, we find that the evidence in the
record does not preponderate against the trial court’s factual findings. Ms. Boshers’
testimony established that Father has been twice incarcerated, once in the Giles County
Jail and, at the time of trial, in a federal prison. He has been continuously incarcerated
since June 2016. This fact alone does not establish wanton disregard, In re Audrey S.,
182 S.W.3d at 866, but Father’s repeated incarcerations taken together with his pre-
incarceration actions demonstrate an inability to adequately supervise or to provide a safe
and stable environment for the child. For example, Ms. Boshers testified:
Q. Do you also know if the child was removed by an order from the Giles
County Juvenile Court?
A. He was.
Q. Was that order entered as a result of a petition filed by DCS?
A. Yes, it was.
Q. Do you know if that petition alleged dependency and neglect as to [the
child]?
A. It did.
Q. What were those allegations in that dependency and neglect petition?
A. The allegations were that [Father] was going to drop [the child] on his
head if [Mother] did not take pictures of the girls that lived next door.
Father’s counsel did not object to this line of questioning. At the time of the dependency
and neglect proceedings, Father made “no stipulation as to [the] allegations in [the]
petition being true or false.” Since then, Father has not affirmatively denied that he held
his newborn son upside down and threatened to drop the child on his head unless Mother
provided explicit photos of minor children. Father’s counsel challenged Ms. Boshers’
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testimony on these facts only by questioning whether Ms. Boshers knew if Mother was
the informant who made the foregoing allegation to the Giles County Sheriff’s
Department. Ms. Boshers stated, “I don’t recall reading that, no, ma’am.”
We find no error in the trial court’s determination that there was clear and
convincing evidence supporting the termination of Father’s parental rights for
abandonment by wanton disregard. Accordingly, we affirm the trial court’s judgment
terminating Father’s parental rights on this ground.
Best Interest of the Child
Having concluded that there was clear and convincing evidence supporting at least
one statutory ground of termination, we must consider whether termination was in the
best interest of the child. See Tenn. Code Ann. § 36-1-113(c)(2); In re Audrey S., 182
S.W.3d at 860. In making this determination, we are guided by the following non-
exhaustive list of factors:
(i) In determining whether termination of parental or guardianship
rights is in the best interest of the child . . . the court shall consider, but is
not limited to, the following:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child’s
best interest to be in the home of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a lasting
adjustment after reasonable efforts by available social services agencies
for such duration of time that lasting adjustment does not reasonably
appear possible;
(3) Whether the parent or guardian has maintained regular visitation or
other contact with the child;
(4) Whether a meaningful relationship has otherwise been established
between the parent or guardian and the child;
(5) The effect a change of caretakers and physical environment is likely
to have on the child’s emotional, psychological and medical condition;
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(6) Whether the parent or guardian, or other person residing with the
parent or guardian, has shown brutality, physical, sexual, emotional or
psychological abuse, or neglect toward the child, or another child or
adult in the family or household;
(7) Whether the physical environment of the parent’s or guardian’s
home is healthy and safe, whether there is criminal activity in the home,
or whether there is such use of alcohol or controlled substances as may
render the parent or guardian consistently unable to care for the child in
a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or emotional status
would be detrimental to the child or prevent the parent or guardian from
effectively providing safe and stable care and supervision for the child;
or
(9) Whether the parent or guardian has paid child support consistent
with the child support guidelines promulgated by the department
pursuant to [section] 36-5-101.
Tenn. Code Ann. § 36-1-113(i). “This list 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 parental rights is in the best interest of a child.” In re
M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also
stated that “when the best interest[] of the child and those of the adults are in conflict,
such conflict shall always be resolved to favor the rights and the best interest[] of the
child, which interests are hereby recognized as constitutionally protected.” Tenn. Code
Ann. § 36-1-101(d); see also White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App.
2004) (holding that when considering a child’s best interest, the court must take the
child’s perspective, rather than the parent’s).
In making the best interest determination, the trial court relied on Father’s years-
long lack of contact with the child, Father’s lack of a meaningful relationship with the
child, his lack of support for the child, and the effect on the child if he were to be
removed from the foster parents’ home. See Tenn. Code Ann. § 36-1-113(i)(3), (4), (5),
& (9). At trial, Father stated that he had not seen the child since June 3, 2016. Father has
not supported the child since he was approximately two months old. When asked how
much money he earns while incarcerated pending further federal court proceedings,
Father advised, “I don’t make any money but I receive money . . . I was left an
inheritance.” When questioned why he had not paid support for the child, Father
reasoned, “I was never ordered.” However, “[e]very parent who is eighteen (18) years of
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age or older is presumed to have knowledge of a parent’s legal obligation to support such
parent’s child or children.” Tenn. Code Ann. § 36-1-102(1)(H). Furthermore, this court
has “declined to conclude that parents’ failure to support was excused by the absence of a
court order requiring them to do so.” In re Sydney B., 537 S.W.3d 452, 459 (Tenn. Ct.
App. 2017) (citing In re Makenzie L., No. M2014-01081-COA-R3-PT, 2015 WL
3793788, at *20 (Tenn. Ct. App. June 17, 2015)).
Overall, the evidence does not preponderate against the trial court’s factual
findings on the statutory factors. Because Father failed to support the child despite
receiving inheritance money, the trial court properly found that this factor favored
termination as to the best interest of the child. The testimony clearly and convincingly
shows that, by the time of trial, the foster parents had been the child’s caregivers for
nearly four years. The child calls Foster Father “daddy,” just as Foster Father and his
relatives treat the child as their own. The child is strongly bonded to Foster Father who
wishes to adopt him. As the trial court found, the foster parents “are the only caregivers
that the child has ever known.” On this point, the guardian ad litem questioned Father:
Q. What type of effect do you think it would be for your child to be
removed from the only home he’s ever known for four years to be placed
with complete strangers to him who know nothing about him?
A. [The child] is at a young age. He’s four years old. His brain is like a
sponge. He can reprogram at any given time and still have a loving bond
with his father.
We, like the trial court, are not persuaded that the child can simply “reprogram.” The
child is thriving in his current environment. The child does not know Father as his father,
and there is no evidence that there is any bond between Father and the child. A change of
caretakers at this point in the child’s life would be emotionally and psychologically
detrimental or, as stated in Foster Father’s unchallenged testimony, “[i]t would pretty
much destroy [the child’s] world.” Tenn. Code Ann. § 36-1-113(i)(5). Based on these
facts and the record as a whole, we conclude that clear and convincing evidence supports
a finding that termination of Father’s parental rights is in the child’s best interest.
Accordingly, we affirm the trial court.
V. CONCLUSION
The judgment of the trial court is affirmed in part and reversed in part. The
termination of Joshua H.’s parental rights is affirmed. The case is remanded for such
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further proceedings as may be necessary and consistent with this Opinion. Costs of the
appeal are taxed to the appellant, Joshua H., for which execution may issue if necessary.
_________________________________
JOHN W. McCLARTY, JUDGE
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