In Re Lydia N.-S. ( 2017 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 4, 2016
IN RE LYDIA N.-S. 1
Appeal from the Chancery Court for Williamson County
No. 1805A Deanna B. Johnson, Chancellor
___________________________________
No. M2016-00964-COA-R3-PT – Filed January 31, 2017
___________________________________
The minor child at the center of this appeal was born on April 3, 2012, in El Paso,
Texas. Mother and child moved to Nashville, Tennessee, three months later. Father
subsequently moved to Delaware. While living in Delaware, Father pled guilty to two
counts of rape and was sentenced to concurrent twenty-five year sentences beginning
June of 2013. Mother married Stepfather in late 2013, and in October 2014, Stepfather
and Mother filed a petition to terminate Father‟s parental rights and to allow Stepfather to
adopt the child. The petition, as amended, alleged abandonment by failure to visit and
failure to support, abandonment by failure to visit or support in the four months prior to
Father‟s incarceration, and Father‟s incarceration under a sentence of ten or more years
with the child being under eight years of age as grounds for termination. Following a
trial at which Father, who was incarcerated, participated by telephone, the court
terminated Father‟s parental rights on the grounds of abandonment and incarceration
under a sentence of ten years or more and upon a finding that termination was in the
child‟s best interest; the petition for adoption was also granted. Father appeals the
termination of his rights, stating that the court erred in denying a motion to continue so he
could appear in person and in determining that termination of Father‟s parental rights was
in the best interest of the minor child. Discerning no reversible error, we affirm the
judgment of the trial court as modified.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
as Modified
RICHARD H. DINKINS, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ARNOLD B. GOLDIN, J., joined.
Matthew J. Crigger, Brentwood, Tennessee, for the appellant, Jorge N.-S.
1
This Court has a policy of protecting the identity of children in parental termination cases by initializing
the last names of the parties.
Jonathan L. Miley, Nashville, Tennessee, for the appellee, Loren A. K. and Dillon D. K.
OPINION
II. FACTUAL & PROCEDURAL HISTORY
Lydia N.-S. [“Lydia”] was born on April 3, 2012, to Loren K. [“Mother”] and
Jorge N.-S. [“Father”] in El Paso, Texas; Mother and Father were not married. When
Lydia was approximately three months old, she and Mother moved to Nashville,
Tennessee. Mother and Father remained in contact, and Father saw Lydia twice when
Mother returned to El Paso to visit family.
Early in 2013, Father moved to Delaware. In June 2013, Father pled guilty to two
counts of third degree rape and was sentenced to concurrent 25 year sentences that would
be suspended after two years of mandatory incarceration “at supervision level 5,”
followed by six months of work release “at supervision level 4,” six months of home
confinement “at supervision level 4,” and two years “at supervision level 3.”2 Father was
also required to register as a sex offender.
Mother met Dillon K. [“Stepfather”] in January 2013, and they married in
November 2013. On October 3, 2014, Mother and Stepfather filed a “Petition for
Termination of Parental Rights and Adoption.” As grounds for the termination of
Father‟s rights, the petition alleged abandonment by willful failure to visit and willful
failure to support, pursuant to Tennessee Code Annotated section 36-1-102(1)(A)(i), as
well as abandonment by failure to visit or support during the four months preceding his
incarceration, pursuant to section 36-1-102(1)(A)(iv). The petition was amended to add
that Father was confined in a correctional facility under a sentence of ten or more years
when Lydia was under eight years of age, in accordance with Tennessee Code Annotated
section 36-1-113(g)(6).
On October 20, 2015, an agreed order was entered setting the trial for April 5,
2016. In the week preceding the hearing, Father filed a motion to continue the hearing
until October 2016, at which time he expected to be out of prison and able to participate
in the trial in person. As grounds for his motion, Father stated that he had been moved to
a “less well-equipped” correctional facility and would only be able to participate by
telephone for a two-hour time period. The motion was denied.
At the trial on April 5, Father participated by telephone, and he, along with
Mother, and Stepfather, testified. Four exhibits were entered into evidence, including
Father‟s “Corrected Sentence Order,” Lydia‟s birth certificate, Mother and Stepfather‟s
2
There is no explanation in the record of the various levels of supervision.
2
marriage certificate, and a photo album.3 Father‟s counsel as well as the Guardian ad
litem, were present during the trial.
On April 20, the court entered a memorandum and order terminating Father‟s
parental rights to Lydia on the ground of abandonment by willful failure to support
during the four months preceding Father‟s incarceration and the ground of Father‟s
confinement in a correctional facility under a sentence of ten years or more, and upon a
finding that termination was in Lydia‟s best interest. The order also granted the petition
for adoption.
Father appeals, raising the following issues for our review:
1. Whether the trial court erred in denying [Father]‟s motion to continue the
final hearing?
2. Whether the trial court erred in determining that the termination of
[Father]‟s parental rights was in the best interests of the minor child?
II. 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 Adoption of A.M.H., 215 S.W.3d 793,
809 (Tenn. 2007). However, that right is not absolute and may be terminated in certain
circumstances. Santosky v. Kramer, 455 U.S. 745, 753-54 (1982); State Dep’t of
Children’s Services v. C.H.K., 154 S.W3d 586, 589 (Tenn. Ct. App. 2004). The statutes
on termination of parental rights provide the only authority for a court to terminate a
parent‟s rights. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Thus, parental
rights may be terminated only where a statutorily defined ground exists. Tennessee Code
Annotated section 36-1-113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In
re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). To support the termination of
parental rights, only one ground need be proved, so long as it is proved by clear and
convincing evidence. In the Matter of D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003).
Because the decision to terminate parental rights affects fundamental
constitutional rights and carries grave consequences, courts must apply a higher standard
of proof when adjudicating termination cases. Santosky, 455 U.S. at 766-69. A court
may terminate a person‟s parental rights only if (1) the existence of at least one statutory
ground is proved by clear and convincing evidence and (2) it is shown, also by clear and
3
Mother testified relative to many of the photos of Lydia contained in this album. The clerk and master
filed a notice, pursuant to Rule 25(b) of the Tennessee Rules of Appellate Procedure, that the photo album
was not included in the record on appeal “due to its size.” No issue is raised in this appeal with respect to
the contents of the album.
3
convincing evidence, that termination of the parent‟s rights is in the best interest of the
child. Tenn. Code Ann.§ 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d at 808-09;
In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). In light of the heightened standard of
proof in these cases, a reviewing court must adapt the customary standard of review set
forth by Tenn. R. App. P. 13(d). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App.
2004). As to the court‟s findings of fact, our review is de novo with a presumption of
correctness unless the evidence preponderates otherwise, in accordance with Tenn. R.
App. P. 13(d). Id. We must then determine whether the facts, as found by the trial court
or as supported by the preponderance of the evidence, clearly and convincingly establish
the elements necessary to terminate parental rights. Id.
II. ANALYSIS
A. MOTION TO CONTINUE
Father first contends that the court erred in denying his motion to continue the
trial. The motion was filed five days before trial and stated that Father had been
transferred to a lower security facility that was “less well-equipped” and would only
permit Father to participate by telephone during a two-hour time period; he argued that
this made “conducting a termination hearing via telephone . . . very difficult logistically.”
The court held a hearing on the motion and denied it, holding:
2. Pursuant to T.C.A. § 36-1-124, the Court has a statutory obligation to
set termination of parental rights hearings, consistent with due process,
expeditiously and at the earliest possible date to be given priority over
all other civil litigation other than child protection services to provide
permanency for children.
3. Pursuant to T.C.A. §36-1-113(k),[4] the Court may only extend a hearing
for a termination of parental rights if the Court deems a delay is in the
best interests of the minor child to do so, and the Court does not make
such a finding in this case.[5]
4
Tennessee Code Annotated section 36-1-113(k) reads in pertinent part:
The court shall 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. . . .
5
On appeal, Father argues that “the trial court should have found that a continuance of the hearing was in
the best interest of the child as it would have not only allowed [Father] to fully participate in the hearing
upon his release from prison, but it would have also allowed [Father] an opportunity to attempt to
reconnect with the minor child under the supervision of the court, the Petitioners, and/or the guardian ad
litem.” In considering the continuance, however, the court was bound to set the hearing expeditiously
4
4. The Father‟s right and opportunity to participate in the termination of
parental rights trial by telephone is in compliance with T.C.A. 36-1-113
(f)(3)[6] and relevant case law in Tennessee and such telephonic
participation protects his due process rights.
5. If and only if the father‟s participation in the termination of parental
rights hearing by telephone is impossible or is not reasonable under the
telephonic connection at the circumstances on the date of the trial shall
this matter be continued to another date set by the Court.
“The granting or denial of a motion for a continuance lies in the sound discretion
of the court.” Blake v. Plus Mark, Inc., 952 S.W.2d 413, 415 (Tenn. 1997) (citing
Moorehead v. State, 219 Tenn. 271, 409 S.W.2d 357, 358 (1966)). The court‟s ruling on
such a motion will not be disturbed on appeal “unless the record clearly shows abuse of
discretion and prejudice to the party seeking a continuance.” Id. (citing State v. Strouth,
620 S.W.2d 467, 472 (Tenn. 1981), cert. denied, 455 U.S. 983, 102 S. Ct. 1491, 71
L. Ed. 2d 692 (1982)). In In re Elizabeth D., this Court addressed whether a trial court
abused its discretion in denying a motion to continue filed by a father who was
incarcerated in another state and participated by phone in the hearing on the petition to
terminate his parental rights. In that case, we noted that:
The standard to be applied in ruling on a motion to continue, as well as this
court‟s review of the ruling was recently set forth in Tidwell v. Burkes:
Continuances are governed by Tennessee Code Annotated 20-7-
101 (2009), which provides in pertinent part that continuances
“may always be granted by the court, upon good cause shown, in
any stage of the action.” A ruling on a motion for continuance is a
matter of discretion for the trial court and will not be disturbed
absent a clear showing of abuse of that discretion. Decisions
regarding the granting or denial of a continuance are fact-specific
and should be viewed in the context of all existing circumstances
absent a determination that a continuance was in Lydia‟s best interest. Father has failed to assert any
facts to support such a determination, and we discern none on the record before us.
6
Tennessee Code Annotated section 36-1-113 governs termination of parental rights proceedings.
Subsection (f) contains specific provisions relative to parents who are incarcerated at the time a
termination proceeding is initiated and/or heard. Subsection (f)(3) provides:
That the incarcerated parent or guardian has the right to participate in the hearing and
contest the allegation that the rights of the incarcerated parent or guardian should be
terminated, and, at the discretion of the court, such participation may be achieved through
personal appearance, teleconference, telecommunication or other means deemed by the
court to be appropriate under the circumstances[.]
5
present at the time of the party‟s request for continuance. In order
to prove that a requested continuance is justified, the party
requesting the continuance “must supply some „strong excuse‟ for
postponing the trial date.” When considering a motion for
continuance, the following factors are relevant to the trial court‟s
decision: “„(1) the length of time the proceeding has been pending,
(2) the reason for the continuance, (3) the diligence of the party
seeking the continuance, and (4) the prejudice to the requesting
party if the continuance is not granted.‟”
Tidwell v. Burkes, No. M2015-01270-COA-R3-CV, 2016 WL 3771553, at
*5 (Tenn. Ct. App. July 8, 2016) (internal citations omitted).
No. E2015-02097-COA-R3-PT, 2016 WL 5334800, at *5 (Tenn. Ct. App. Sept. 23,
2016).
Tennessee Code Annotated section 36-1-113(f)(3) vests the trial court with the
responsibility to make arrangements for the trial to be conducted with or without the
physical presence of an incarcerated parent and gives the court considerable discretion in
that regard. Father has not cited to any evidence that the arrangements did not satisfy
section 113(f)(3) or that the logistics caused any problems in the conduct of the trial. The
transcript reflects that the proceedings were transmitted via telephone to Father; that the
court instructed Father to let the court know if for any reason he could not hear; that
Father participated and was able to respond to questions as they were asked; that Father‟s
counsel was present and participated fully in the proceeding; and that Father was able to
communicate with the court when he was unable to hear so that the witnesses or the
attorneys could repeat what they had said, reposition the telephone, and/or speak more
loudly. The trial court did not abuse its discretion by denying Father‟s motion to
continue.
B. GROUNDS FOR TERMINATION
As grounds for terminating his rights, the trial court held that Mother and
Stepfather had proven that Father had abandoned Lydia by failing to support her within
the four months preceding his incarceration, and that he was incarcerated under a
sentence of ten years or more, while Lydia was under eight years of age. In his brief,
Father states that he “does not challenge the trial court‟s findings that statutory grounds
existed to terminate his parental rights.” Nevertheless, mindful of the instruction set forth
by our Supreme Court that, “in an appeal from an order terminating parental rights[,] 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,” we proceed to address the sufficiency of the
6
evidence to support the grounds for termination. In Re Carrington H., 483 S.W.3d 507,
525-26 (Tenn. 2016) (footnote omitted).
1. Abandonment, pursuant to section 36-1-102(1)(A)(iv)
Abandonment is defined in Tennessee Code Annotated section 36-1-102(1)(A),
which reads in pertinent part:
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.
Tenn. Code Ann. § 36-1-102(1)(A)(iv).
The trial court held that the petitioners “had proven, by clear and convincing
evidence, that Father has abandoned Minor child” based upon the following findings:
[Father] has been in custody since June 2, 2013. The original
Petition was filed in this case on October 3, 2013. Thus, [Father] was
incarcerated at the time of the filing of the Petition as well as during all of
the four months immediately preceding the filing of the Petition. . . .
. . . [Father] did not pay any support at all for Minor Child during
February, March, April, or May of 2013. Those were the four months
immediately preceding his incarceration. [Father] made $35,000 during that
four month period. In addition, [Mother] opened a bank account at Wells
Fargo Bank, choosing the same bank [Father] used, so that he could make
deposits into that account for the support of his child. [Father] did not
deposit any money into that account after November of 201[2].
7
These findings are not contested by Father, and they are supported by the record.
Mother testified that she set up a bank account at Father‟s bank in order for Father to
deposit money to support the child. Father and Mother testified that Father deposited
$200 or $300 for child support, with the last deposit being made in November 2012;
Mother closed that account at the end of 2013. Father testified that he was incarcerated
in June 2013, and that during the four months immediately preceding his incarceration,
he made between $30,000 and $35,000. He and Mother both testified that he did not pay
any money to Mother for Lydia‟s care and support during those four months. This is
clear and convincing evidence supporting the determination that Father abandoned the
child by willfully failing to pay child support during the four months preceding his
incarceration. We therefore affirm this ground as a basis of the termination of Father‟s
rights.
2. Father’s Incarceration
Tennessee Code Annotated section 36-1-113(g)(6) provides as a ground for the
termination of parental rights:
The parent has been confined in a correctional or detention facility of any
type, by order of the court as a result of a criminal act, under a sentence of
ten (10) or more years, and the child is under eight (8) years of age at the
time the sentence is entered by the court[.]
Tenn. Code Ann. § 36-1-113(g)(6). In interpreting this provision, this Court has held that
“a court considering a petition for termination of parental rights based on Tenn. Code
Ann. § 36-1-113(g)(6) need not look beyond the judgment of conviction and the sentence
imposed by the criminal court in order to determine whether this ground for termination
applies.” In re Audrey S., 182 S.W.3d 838, 876 (Tenn. Ct. App. 2005). 7
7
This Court has also explained that:
Tenn. Code Ann. § 36–1–113(g)(6) establishes a “„bright line‟ ground for termination of
parental rights.” In re Adoption of K.B.H., 206 S.W.3d 80, 85 (Tenn. Ct. App. 2006).
The statute requires only that the parent be confined to a correctional facility as a result of
a criminal act with a sentence of ten or more years and that the child is under eight years
old at the time of the parent's sentencing; there is no lack of clarity, ambiguity, or room
for argument. The statute does not contain language regarding the possibility of parole,
and, like other courts which have considered this issue, we decline to make such
possibility a consideration in applying the statute.
In re Darion X.Y., No. M2012-00352-COA-R3PT, 2012 WL 4474123, at *2 (Tenn. Ct. App. Sept. 27,
2012)
8
The trial court found that “[Father] has been confined under a sentence of more
than ten years and Minor Child is four years old. Indeed, [Father] conceded at the
hearing that this section of the code provides a ground for termination.” Father does not
contest the holding that this ground for termination had been proven.
This holding is supported by Father‟s sentencing order, which reads with respect
to each charge of rape, “The defendant is placed in the custody of the Department of
Correction for 25 year(s) at supervision level 5.” The order provides that the two
sentences are concurrent. The date of the order is January 29, 2014; at that time, Lydia
was approximately two years and nine months old, which is under eight years of age, as
required by section 113(g)(6). Thus, there is clear and convincing evidence supporting
this ground for termination.
C. BEST INTEREST
Once a ground for termination has been proven by clear and convincing evidence,
the trial court must then determine whether it is in the best interest of the child for the
parent‟s rights to be terminated, again using the clear and convincing evidence standard.
In re Valentine, 79 S.W.3d at 546. The legislature set out a list of factors at Tennessee
Code Annotated section 36-1-113(i) for the courts to follow in determining the child‟s
best interest.8 The list of factors in the statute “is not exhaustive, and the statute does not
8
The factors at Tennessee Code Annotated section 36-1-113(i) are:
In determining whether termination of parental or guardianship rights is in the best
interest of the child pursuant to this part, 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;
(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;
9
require every factor to appear before a court can find that termination is in a child‟s best
interest.” In re S.L.A., 223 S.W.3d 295, 301 (Tenn. Ct. App. 2006) (citing Tenn. Dept. of
Children’s Svcs. v. T.S.W., No. M2001-01735-COA-R3-CV, 2002 WL 970434, at *3
(Tenn. Ct. App. May 10, 2002); In re I.C.G., No. E2006-00746-COA-R3-PT, 2006 WL
3077510, at *4 (Tenn. Ct. App. Oct. 31, 2006)). “The parties are free to offer proof of
other relevant factors.” In re Carrington H., 483 S.W.3d 507, 523 (Tenn. 2016), cert.
denied sub nom. Vanessa G. v. Tennessee Dep’t of Children’s Servs., 137 S. Ct. 44, 196
L. Ed. 2d 28 (2016) (citing In re Audrey S., 182 S.W.3d at 878.). “The weight and
relevance of these factors may vary from case to case and it is possible that a single factor
is determinative.” In re B.A.C., 317 S.W.3d 718, 727 (Tenn. Ct. App. 2009) (quoting In
re D.C.A., No. M2008-01279-COA-R3-PT, 2009 WL 837877, at *8 (Tenn. Ct. App. Mar.
30, 2009) (no perm. app. filed). As we consider this issue, we apply the instruction in
White v. Moody:
[A]scertaining a child‟s best interests in a termination proceeding is a fact-
intensive inquiry requiring the courts to weigh the evidence regarding the
statutory factors, as well as any other relevant factors, to determine whether
irrevocably severing the relationship between the parent and the child is in
the child‟s best interests. The child‟s best interests must be viewed from
the child‟s, rather than the parent‟s, perspective.
171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004) (internal citations and footnote omitted).
The court devoted 10 pages of the 35-page order to the best interest analysis and
made factual findings with respect to each factor; the court then stated whether, and the
degree to which, the factor militated in favor of termination of Father‟s rights.9 The court
determined that there was clear and convincing evidence that it was in Lydia‟s best
interest to terminate the parental rights of Father. In our analysis of this issue, we will
(8) Whether the parent‟s or guardian‟s mental and/or emotional status would be
detrimental to the child or prevent the parent or guardian from effectively providing safe
and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with the child
support guidelines promulgated by the department pursuant to § 36-5-101.
9
In numerous instances, Father argues that the court assigned inappropriate weight to a particular factor.
While the court used the term “weigh” or a variation thereof in discussing each factor, “[a]scertaining a
child‟s best interests does not call for a rote examination of each of [the] nine factors and then a
determination of whether the sum of the factors tips in favor of or against the parent.” In re Audrey S.,
182 S.W.3d at 878. In a termination of parental rights case, as noted in White v. Moody, 171 S.W.3d at
193-94, the question presented is whether the evidence pertaining to the statutory factors and any other
relevant factors supports the conclusion that termination is in the child‟s best interest. It is not necessary
that there be evidence supporting each factor in order to reach the ultimate conclusion. Id.; see also In re
B.A.C., 317 S.W.3d at 727. The weight of the evidence as to the factors is measured cumulatively rather
than individually.
10
consider whether the evidence clearly and convincingly supports the findings as to each
factor and whether those factors support the best interest determination that terminating
Father‟s rights was in Lydia‟s best interest.
With respect to factor (1), the court found:
As he testified at trial, he is currently in custody serving a prison sentence
for two counts of rape. He anticipates that he will be released from custody
at the end of September of 2016. After he is released from custody,
[Father] will be required to be on home confinement for at least six months.
During that home confinement, [Father] will not be permitted to travel
outside of Delaware. Once he has completed the six months of home
confinement, [Father] will be on probation for several years. As a
convicted felon, [Father] will have great difficulty finding lawful
employment, especially in light of his two convictions of rape. [Father]
does not have housing arranged at this time. He claims he can stay with a
friend of his father‟s; however, such claims are extremely vague. For these
reasons, the Court finds that [Father] has not “made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in the child‟s
best interest to be in [his] home.”
Father contends that the trial court‟s findings with respect to factor (1) are
speculative and that the trial court “should have found this factor to be irrelevant because
the circumstances at the time of the hearing were the same as when the petition was
filed,” i.e. that he was still incarcerated. Father testified that he was incarcerated when
the petition was filed and at the time of trial, and that he was serving two concurrent 25
year sentences for rape; he anticipated that he would be released from prison in the fall of
2016. The sentencing order stated that he would be placed on work release for six
months, then home confinement for six months, followed by two years of “supervision
level 3.” The only testimony Father offered relative to an adjustment of circumstance or
conditions was that a friend of his dad‟s would permit Father to rent a room after he was
released from prison. Significantly, there is no evidence that Father had made an
adjustment of his circumstances such that it would be safe for Lydia to be in whatever
home he might establish upon his release from prison. This finding is supported by clear
and convincing evidence.10
As to factor (2), the court held:
The second factor is 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
10
The court determined that factor (1) “weighs heavily” against Father.
11
reasonably appear possible.” T.C.A. 36-1-113(i)(2). In this case, there was
no indication that social services were involved. However, for the same
reasons as with factor number one, it does not appear that lasting
adjustment would be possible. Therefore, the Court finds that this factor
weighs in favor of termination.
Father argues that “[t]he trial court should have found this factor to be irrelevant
because social services were not involved in the case and thus did not intervene in an
attempt to help [Father] make an adjustment to his lifestyle.” As noted by the trial court,
there was no proof of involvement by any social service agency in this case. While we
do not disagree that the findings relative to factor (1) bear to some degree on factor (2),
the statute is clear that “reasonable efforts by available social services agencies” are to be
considered. In the absence of same, this factor is not pertinent in determining whether
termination of Father‟s rights is in Lydia‟s best interest; accordingly, we modify the
judgment to remove this as a factor supporting the best interest determination.
Regarding factor (3), the court‟s findings were as follows:
The third factor is whether “the parent or guardian has maintained
regular visitation or other contact with the child.” T.C.A. 36-1-113(i)(3).
[Father] has not maintained regular visitation with Minor Child. Indeed,
[Father] has not seen Minor Child for over three years -- since she was
three months old. Granted, [Father] has been incarcerated during most of
that period of time. However, his incarceration is a result of his own
criminal conduct and the choices he made to commit crimes.
Moreover, during the time before [Father] was incarcerated and after
[Mother] had moved to Tennessee, [Father] failed to visit Minor Child.
During the hearing, [Father] gave numerous excuses for why he did not
visit Minor Child; but, the bottom line is: he did not visit her. [Mother]
never prevented [Father] from visiting Minor Child. There was never a time
when [Father] requested to visit Minor Child and [Mother] declined that
request. Although [Mother], at one point, refused to give [Father] her
telephone number and address, she called him fairly regularly. In addition,
[Mother] offered to pick [Father] up at the airport. During their telephone
conversations, he did not always ask about Minor Child and [Mother] did
not recall [Father] requesting to see Minor Child. There was no proof
presented to the Court that this was a situation in which [Father] was asking
to see his child and [Mother] declined those requests. [Father] did not take
any legal action in either Texas or Tennessee to obtain visitation.
Accordingly, the Court finds that this factor weighs heavily in favor of
termination.
12
Father argues that “the court did not apply sufficient weight to the evidence of
[Mother]‟s actions geared toward limiting and outright preventing [Father] from visiting
with the minor child.”
Father testified that the last time he saw and held Lydia was for a “little bit of
time” in July 2012; that he and Mother “stayed in contact the whole time” after she
relocated to Tennessee and he moved to Delaware; that Mother would send him pictures
and videos of Lydia; that they communicated on Skype; that he offered to fly to
Tennessee to visit but that Mother wouldn‟t give him her address; that he tried to get
Mother‟s addresses and “tried to fly [Mother] out here [to Delaware] with the baby”; that
they got into an argument around New Year‟s 2013 after which Mother changed her
phone number; that in the four months preceding his incarceration he did not have any
contact information for Mother; that while he was in jail, he sent his brother to her
mother‟s home and her aunt‟s home in El Paso “because [he] was trying to get ahold of
her”; and that he “didn‟t realize [he] went 60, 90 days without talking to my daughter.”
Mother testified that when she visited El Paso in 2012, she “let [Father] know
when I would be down there so if he wanted to meet up, he would be able to see
[Lydia]”; that Father had asked for her address in Nashville, but she did not provide it;
that she offered to pick Father up at the airport if he wanted to fly to Nashville to see her
and Lydia; that he asked to see Lydia “a few times”; that they maintained contact, though
it was often emotional, with cursing and name-calling; that Mother changed her number
in March 2013 because she “had recently [received] a threat from [Father] that he was
going to kill me and my boyfriend”; and that though Father did not have a phone number
or address for her during March through June of 2013, he still had the phone number of
Mother‟s mother.
While Mother‟s and Father‟s testimony conflicts to some degree relative to
Mother‟s responses to Father‟s purported attempts to see Lydia, the record does not
support Father‟s argument that Mother “limit[ed]” or “outright prevent[ed]” Father from
visiting Lydia. There is no proof that Father sought to secure court-ordered visitation and
no dispute that Father did not maintain regular visitation with Lydia during her lifetime or
that this failure was due in substantial part to his poor choices and criminal conduct. The
finding is supported by clear and convincing evidence.
With respect to factor (4), the court found that Father had not visited with Lydia in
over three years; that Father stated to Mother, “Just tell [Lydia] that I died”; that Father
argued and fought with Mother rather than develop a relationship with Lydia; and that he
failed to provide diapers, formula, medicine, or other necessities for Lydia. Recounting
testimony about Stepfather‟s activities and positive relationship with Lydia, the court
observed that “the void left by [Father] has been filled by [Stepfather].” Father does not
argue that the finding is unsupported by the record but, as he did with respect to factor
(3), argues that the court did not consider Mother‟s conduct in limiting his visitation in
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concluding that this factor “weigh[ed] heavily in favor of termination.” Upon our review,
the factual finding is supported by clear and convincing evidence.
With respect to factor (5), the trial court concluded that Lydia was well cared for,
in pre-preschool, and enjoys her entire family including her cousins, while “[Father] does
not even know [Lydia] and she does not know him.” Father does not dispute any of the
court‟s factual findings but argues that “[g]ranting [Father] visitation rights would not
constitute a change in caretakers” and seeks to have the court grant Father limited or
supervised visitation. The question before the court, however, is the best interest of
Lydia. The evidence clearly and convincingly supports the court‟s finding that Lydia is a
happy, healthy child who is appropriately bonded with her Mother, Stepfather, and half-
brother.11
The Court made the following findings with respect to factor (6):
. . . [Father]‟s emotional abuse of [Mother] warrant[s] the application of
this factor against [Father]. Moreover, the Court finds that [Father] “has
shown neglect” of Minor Child. [Father] neglected Minor Child while he
and [Mother] lived in El Paso and he neglected Minor Child after [Mother]
and Minor Child moved to Tennessee. Therefore, the Court finds that this
factor weighs in favor of terminating [Father]‟s parental rights.
Mother testified that Father was “mentally abusive, . . . does not make good
choices[,] [a]nd [is] manipulative”; she also testified that in early 2013, he threatened to
kill her and her boyfriend. Both parties testified about their arguments while she lived in
El Paso and after she moved to Tennessee and about how they would curse at and insult
each other. Father admitted that he did not provide more than a few hundred dollars in
support for Lydia; Mother testified that he also did not provide diapers, medicine, or
other necessities when all were living in El Paso. The testimony supports the factual
finding.12
With respect to factor (7), which requires the court to consider whether the
physical environment of the parent‟s home is healthy and safe, the court found:
[Father] has been convicted of two counts of rape – violent crimes against a
woman. Also, [Father] was controlling and emotionally abusive of
11
The court also found the testimony of Mother and Stepfather “very credible” that it was in Lydia‟s best
interest for Father‟s parental rights to be terminated.
12
Father argues that both he and Mother used inappropriate language and that there was no proof that
such conduct occurred while the minor child was present. This argument is misplaced, as the statute does
not require the emotional or psychological abuse to have been directed only toward the child; moreover,
the finding was not limited to the use of inappropriate language.
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[Mother]. In addition, [Father] has, admittedly, led a life of partying.
Finally, [Father] will be on home confinement and then probation for the
next several years - formative years in Minor Child‟s life. [Father] does not
even have a definitive place to live. [He] simply cannot provide a safe and
stable home for the Minor Child.”
Father argues that this finding was “speculative and premature.” In considering
this factor, the trial court was required to consider the circumstances in which Father
lives, and because the record contains Father‟s testimony that he was currently
incarcerated and plans to rent a room from a man who visits him in prison upon his
release to home confinement, the court‟s conclusion that Father “simply cannot provide a
safe and stable home for Minor Child” is supported by the evidence.
With respect to factor (8), the trial court found as follows:
The eighth factor is 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.” T.C.A. 36-1-113(i)(8). Based on [Father]‟s criminal history,
partying life-style, and treatment of [Mother], the Court finds that
[Father]‟s mental and/or emotional status would be detrimental to Minor
Child and would prevent [Father] “from effectively providing safe and
stable care for Minor Child.” Therefore, this factor also weighs in favor of
terminating [Father]‟s parental rights.
Father does not dispute his criminal history but argues that “there was no proof he
suffered from mental illness or that he was otherwise an emotionally unstable person.”
While the testimony about Father‟s history and circumstances supports a determination
that he could not provide safe and stable care for Lydia, there was no proof that his
mental and/or emotional status would be detrimental to Lydia within the meaning of the
statute. Thus, the record does not contain clear and convincing evidence that supports the
Court‟s finding that Father‟s mental and emotional status would prevent him from
providing safe and stable care for the child; accordingly, we modify the judgment to
remove this as a factor supporting the best interest determination.
With respect to factor (9), the court determined that Father “has paid virtually no
child support” for Lydia. Father conceded that he has not supported Lydia and the record
affirms that Father has not paid support, other than a few hundred dollars, despite the
facts that Mother opened a bank account at Father‟s bank to facilitate his deposit of funds
and that Father made substantial income in 2013 prior to his incarceration. This finding
is supported by clear and convincing evidence.
15
The trial court held that each of the factors at Tennessee Code Annotated section
36-1-113(i) supported the determination that termination of Father‟s parental rights was
in Lydia‟s best interest. We have concluded that the evidence clearly and convincingly
supports seven of those factors and proceed to consider whether the court erred in holding
that termination of Father‟s rights was in Lydia‟s best interest. In this inquiry, we are
instructed that:
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
[187] at 194 [(Tenn. Ct. App. 2004)].
In re Audrey S., 182 S.W.3d at 878.
Upon our review of the record, the findings as to seven of the nine factors are
supported by clear and convincing evidence and, under the facts of this case, fully
support the holding that termination of Father‟s parental rights is in Lydia‟s best interests.
IV. CONCLUSION
In light of the foregoing analysis, we affirm the trial court‟s denial of Father‟s
motion to continue and the judgment of the court, as modified herein, terminating
Father‟s parental rights to Lydia.
RICHARD H. DINKINS, JUDGE
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