In Re Elijah H. ( 2021 )

10/06/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 2, 2021
IN RE ELIJAH H.
Appeal from the Juvenile Court for Wilson County
No. 2019-JT-2 Charles B. Tatum, Judge
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No. M2020-01548-COA-R3-PT
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This termination of parental rights case focuses on Elijah H. (“the Child”), the minor child
of Amanda H. (“Mother”) and Kevin W. (“Father”). In March 2019, the Tennessee
Department of Children’s Services (“DCS”) filed a petition to terminate the parental rights
of Mother and Father in the Wilson County Juvenile Court (“trial court”). The Child had
previously been removed from Mother’s custody after he was born exposed to drugs.
Father was incarcerated prior to the Child’s birth and has remained so continuously since
that time, awaiting trial for pending criminal charges, including first degree murder.
During a bench trial, Mother voluntarily surrendered her parental rights to the Child.1 At
the conclusion of the bench trial, the trial court terminated Father’s parental rights to the
Child, finding by clear and convincing evidence that Father had abandoned the Child by
exhibiting wanton disregard for the Child’s welfare prior to Father’s incarceration and that
Father had failed to manifest an ability and willingness to assume legal and physical
custody of or financial responsibility for the Child. The trial court further found by clear
and convincing evidence that it was in the Child’s best interest to terminate Father’s
parental rights. Father has appealed. Having determined that DCS presented insufficient
evidence that Father knew of the Child’s existence at the time of his criminal behavior, we
reverse the trial court’s finding that Father abandoned the Child by exhibiting wanton
disregard for the Child’s welfare. We affirm the trial court’s judgment in all other respects,
including the termination of Father’s parental rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed in Part, Reversed in Part; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which W. NEAL
MCBRAYER and KENNY W. ARMSTRONG, JJ., joined.
1
The surrender of Mother’s parental rights to the Child is not at issue on appeal. We will therefore confine
our analysis to those facts relevant to Father’s appeal.
Lee W. McDougal, Gallatin, Tennessee, for the appellant, Kevin W.
Herbert H. Slatery, III, Attorney General and Reporter, and Kathryn A. Baker, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
I. Factual and Procedural Background
Shortly following the Child’s birth in July 2017, DCS was notified that the Child
had been born exposed to drugs. As a result, DCS filed a petition to transfer temporary
legal custody, requesting that the trial court adjudge the Child dependent and neglected, as
well as severely abused, and transfer temporary legal custody to K.S. and C.S., referred to
in the record as Mother’s cousins or family friends. In this petition, DCS specifically
alleged that Mother had exposed the Child to drugs in utero and that due to his
incarceration, Father was unable to care for the Child. DCS included reference to Mother’s
statement that Father was incarcerated in the Davidson County Detention Facility, that
Mother was no longer in a relationship with Father, and that Father had a history of
domestic violence against her. According to DCS, following the Child’s birth, Mother had
entered into an “Immediate Protection Agreement and a Non-Custodial Family
Permanency Plan,” placing the Child in the temporary custody of K.S. and C.S. and
requiring Mother to complete tasks to remedy the conditions that prompted DCS’s
involvement. On July 19, 2017, the trial court entered an order granting DCS’s petition,
finding probable cause that the Child was dependent and neglected and severely abused.
On October 6, 2017, DCS filed a petition for temporary legal custody, asserting that
K.S. and C.S. had expressed that they would no longer be able to care for the Child. DCS
alleged, inter alia, that Father and Mother had failed to rectify the conditions that led to
DCS involvement, specifically averring that Father was still incarcerated and would be for
“a substantial period of time.” On October 9, 2017, the trial court entered an ex parte order
awarding temporary legal custody of the Child to DCS.
In an order entered on May 16, 2018, the trial court adjudicated the Child dependent
and neglected following a hearing conducted on March 6, 2018. During the hearing, Father
stipulated that the Child lacked a legal custodian at the time DCS filed its petition and that
he was unable to parent the Child due to his incarceration. Father agreed that DCS had
presented sufficient evidence to prove by clear and convincing evidence that the Child was
dependent and neglected. The court also deemed visitation with Father untenable due to
his incarceration. The trial court declared Father to be the legal father of the Child by an
order of paternity entered on August 20, 2018.
On March 26, 2019, DCS filed the instant petition to terminate Father’s and
Mother’s parental rights to the Child. As to Father, DCS alleged three statutory grounds:
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(1) abandonment by an incarcerated parent by exhibiting wanton disregard for the Child’s
welfare, (2) severe child abuse, and (3) failure to manifest an ability and willingness to
assume legal and physical custody of or financial responsibility for the Child. Relative to
the first ground, DCS alleged that Father had been incarcerated since January 2017 and
was awaiting trial for pending criminal charges, including a charge of first degree murder.
DCS specifically alleged that both Father and Mother had engaged in “dangerous criminal
enterprises” during Mother’s pregnancy. DCS further alleged that this conduct constituted
wanton disregard for the Child’s welfare as well as severe child abuse. With regard to the
remaining ground, DCS alleged that Father had failed to manifest an ability and willingness
to personally assume legal and physical custody of or financial responsibility for the Child
and that placing the Child in his custody would pose a risk of substantial harm to the Child’s
welfare.
The trial court conducted a bench trial concerning the petition to terminate Father’s
and Mother’s parental rights to the Child on November 11, 2020. Brandi Hill, a DCS team
leader, testified that she had supervised the case managers who handled the Child’s custody
case and that she was familiar with the proceedings. Ms. Hill related that in the course of
her supervision, she had reviewed Father’s criminal records. During her testimony, Ms.
Hill read into evidence the contents of the arrest warrant affidavit related to Father’s
January 2017 arrest. The arrest warrant affidavit stated in relevant part:
On January 18, 2017 at approximately 14:25 hours the defendant
[Father] did commit Homicide of [the victim]. The Co Defendant [Mother]
and witness in the incident stated the defendant was driven to [the victim’s
address] by the co-Defendant. The co-defendant knocked on the door and
the victim answered. The defendant pushed his way through the front door
armed with a black 38 revolver. Once in the home the defendant demanded
money and pills. When the victim stated he did not have any the defendant
shot the victim in the head. The defendant fled the home and the co-
defendant drove him from the scene. The victim was transported to
Vanderbilt Hospital where he was pronounced dead. The co-Defendant in
the case is also the defendant’s girlfriend.
Ms. Hill testified further that Father had been incarcerated since January 18, 2017, and that
the charges related to this event were still pending as of trial in the present action. We note
that Mother was a co-defendant in Father’s criminal case and was the co-defendant and
“girlfriend” referenced in the arrest warrant affidavit. Mother was arrested for charges
related to this crime in February 2018.
Ms. Hill also read the contents of the indictment brought against Father. The
indictment, returned on July 23, 2019, charged Father with two counts of first degree
murder, one count of attempted especially aggravated robbery, one count of attempted first
degree murder, one count of especially aggravated burglary, two counts of employing a
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firearm during the commission of a dangerous felony, and one count of being a felon in
possession of a firearm. The indictment included a finding by the grand jury that Father
had previously been convicted of two counts of attempted second degree murder in 2005
in Hamblen County.
In addition, Ms. Hill read the contents of two misdemeanor charges previously
lodged against Father. On November 21, 2014, Father received a citation for driving
without a valid driver’s license, a charge that was subsequently dismissed. Father was also
charged with misdemeanor theft in June 2017. This charge was dismissed on June 16,
2017. Father served eleven days and twenty-two hours in jail pending the disposition of
the misdemeanor theft charge.
As explained by Ms. Hill, Father had been incarcerated due to the pending charges
related to the events of January 18, 2017, for the entirety of the Child’s life. Relative to
visitation, Father had only seen the Child in person on two or three occasions while present
at court proceedings, where the two had spent less than a combined one hour together.
According to Ms. Hill, Father had maintained no communication with the Child by
telephone or any other means. With respect to the permanency plan, Ms. Hill reported that
Father had completed everything required in the plan that could reasonably be expected
given his incarceration. Notwithstanding, Ms. Hill acknowledged that resolving his legal
issues was a component of Father’s permanency plan that he had not yet accomplished.
During the course of her testimony, Ms. Hill articulated that when a child has been
in DCS custody for fifteen months, DCS must perform “special reviews and justification
on when and if or why [they] haven’t filed a [termination petition].” See Tenn. Code Ann.
§ 36-1-113(h)(1)(A) (2021). Ms. Hill confirmed that DCS usually considers filing a
termination of parental rights petition after fifteen months of custody because permanency
for the child needs to be achieved. The Child had been in DCS custody for thirty-seven
months by the time of trial. Ms. Hill further related that if the petition were to be denied
by the trial court and custody of the Child awarded to Father, the Child would not have a
home in which to reside.
Ms. Hill explained that she lacked information as to when Father would stand trial
to resolve his criminal charges and did not have “any knowledge about the criminal case.”
However, DCS case notes reflected that Father in fact desired to proceed with his criminal
trial. When Ms. Hill discussed the case with Father, she did not form the impression that
he was attempting to delay his criminal prosecution. Rather, Father stated to her that he
wished to have a trial so that the charges could be dismissed and he could be released from
prison. Concerning care for the Child, Ms. Hill opined that Father did not maintain the
ability but had expressed a willingness.
Father chose to testify during the trial. In anticipation of Father’s exercise of his
right against self-incrimination under the Fifth Amendment to the United States
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Constitution, the trial court clarified at the outset that DCS could ask Father questions, that
Father could refuse to answer certain questions, and that a negative inference could arise
from Father’s refusal. Accordingly, Father invoked his Fifth Amendment right against
self-incrimination in response to, inter alia, questions regarding his relationship with
Mother.
Concerning the Child, Father testified that he had no doubt that the Child was his
son. Maintaining that he enjoyed a parental bond because the Child was his son, Father
acknowledged that the Child had not had the opportunity to develop a relationship with
him. According to Father, he had seen the child twice in court for a sum total of
approximately ten minutes. Father further explained that he first learned that Mother was
pregnant when he received certain papers from DCS, which would have occurred after the
Child’s birth. Father answered in the negative when asked whether he “tried to get
[Mother] to end her pregnancy prematurely.” Father specifically denied attempting to kill
Mother, “pull[ing] a gun on her,” or telling her to drink Drano or bleach. Father added that
he was shocked when he discovered that the Child was born exposed to drugs. According
to Father, he was surprised that Mother had used drugs while she was pregnant. Father
further claimed that he did not use drugs.
Concerning his care for the Child, Father insisted that he was willing to raise him
on his own. Considering his incarceration, however, he desired a family member to have
custody of the Child in the meantime. Despite having been provided with names of
suggested family members for placement, after conducting background checks, DCS
concluded that these family members were not “sustainable” options. Consequently, in its
October 6, 2017 petition, DCS averred that the family members whom Father had
suggested were inappropriate given that one was “a previously substantiated perpetrator of
child abuse” and the other had admitted to using marijuana daily and had previously been
charged with attempted murder.
Taylor Renfroe, a family support worker with DCS, testified that she was currently
assigned to the Child’s case and had been for the year prior to trial. Ms. Renfroe explained
that at the time she was assigned to the Child’s case, the Child was living with his foster
parents, M.P. and J.P. (“Foster Parents”). According to Ms. Renfroe, the Child was doing
“great” and “meeting all of his developmental milestones” under the care of Foster Parents.
Ms. Renfroe also indicated that “[the Child] is in a wonderful place with the [Foster
Parents],” relating that he referred to Foster Parents as “Mommy and Daddy.” In addition,
she held no concerns regarding the Child’s care by Foster Parents, had never felt as though
she needed to correct Foster Parents, and described Foster Parents’ home as “the best place
where – at this time that [the Child] could be.”
Ms. Renfroe described Foster Parents as “preadoptive” and confirmed that they had
embraced full initiative in their parenting of the Child. She stated that Foster Parents helped
the Child with his educational needs and were “very attentive to his medical concerns.”
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According to Ms. Renfroe, Foster Parents took the lead in finding daycare for the Child
and had “stepped up” in making important decisions relative to the Child. Ms. Renfroe
confirmed that she believed that Foster Parents had gone above and beyond in their care
for the Child. In Ms. Renfroe’s estimation, the Child’s best interest would be served by
his remaining in the care and custody of Foster Parents.
Concerning the relationship between Father and the Child, Ms. Renfroe opined that
the Child did not know Father in any meaningful way. She also stated that restoring
custody to Father would negatively impact the Child because the Child was currently in “a
stable environment where he is loved and taken care of, and to pull him from the family
that he has known since being put into custody would be very traumatic to him, very life-
altering in regards to the family that he has known since being brought into this world.”
Ms. Renfroe included that she was unsure of any program where a three-year old child
could live in the Davidson County correctional facility. Moreover, she described Father’s
pending criminal charges as a “road bump” to permanency for the Child.
J.P. (“Foster Mother”) testified that her husband and she had been the Child’s foster
parents since March 2018 and that they had raised the Child since he was nine months old.
According to Foster Mother, her husband and she had taken education classes necessary to
adopt the Child because it was their desire to adopt the Child. Foster Mother confirmed
that the Child called her “Mama” and her husband “Daddy” and that her husband and she
enjoyed a positive support system and a large extended family who loved the Child.
According to Foster Mother, the Child had never mentioned Father and did not even know
who Father was, considering the Child’s only interaction with him had been in court two
years prior to the termination trial.
On December 21, 2020, the trial court entered a final order terminating Father’s
parental rights to the Child. The court determined that DCS had proven by clear and
convincing evidence that Father had exhibited a wanton disregard for the Child’s welfare,
establishing the respective statutory ground of abandonment. The court also noted that
Father had a criminal history such that he had knowledge of the criminal justice system
and the consequences of engaging in unlawful conduct. The court concluded that DCS had
also proven by clear and convincing evidence that Father had failed to manifest an ability
and willingness to assume legal and physical custody of or financial responsibility for the
Child and that placing the Child in Father’s custody would pose a risk of substantial harm
to the Child’s welfare. However, the court determined that DCS had failed to prove by
clear and convincing evidence the ground of severe child abuse with regard to Father. The
court further determined that the Child’s best interest would be served by the termination
of Father’s parental rights. Father timely appealed.
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II. Issues Presented
Father raises the following issue, which we have restated slightly as follows:
1. Whether the trial court erred by finding clear and convincing evidence
supporting statutory grounds to terminate Father’s parental rights to the
Child.
DCS raises an additional issue, restated slightly as follows:
2. Whether the trial court erred by finding clear and convincing evidence
that it was in the Child’s best interest to terminate Father’s parental rights.
III. Standard of Review
In a termination of parental rights case, this Court has a duty to determine “whether
the trial court’s findings, made under a clear and convincing standard, are supported by a
preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The
trial court’s findings of fact are reviewed de novo upon the record, accompanied by a
presumption of correctness unless the evidence preponderates against those findings. See
Tenn. R. App. P. 13(d); see also In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn.
2016); In re F.R.R., III, 193 S.W.3d at 530. Questions of law, however, are reviewed de
novo with no presumption of correctness. See In re Carrington H., 483 S.W.3d at 524
(citing In re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009)). The trial court’s determinations
regarding witness credibility are entitled to great weight on appeal and shall not be
disturbed absent clear and convincing evidence to the contrary. See Jones v. Garrett, 92
S.W.3d 835, 838 (Tenn. 2002).
“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling,
92 S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “this right is not
absolute and parental rights may be terminated if there is clear and convincing evidence
justifying such termination under the applicable statute.” In re Drinnon, 776 S.W.2d 96,
97 (Tenn. Ct. App. 1988) (citing Santosky v. Kramer, 455 U.S. 745 (1982)). As our
Supreme Court has explained:
The parental rights at stake are “far more precious than any property right.”
Santosky [v. Kramer], 455 U.S. [745,] 758-59 [(1982)]. Termination of
parental rights has the legal effect of reducing the parent to the role of a
complete stranger and of [“]severing forever all legal rights and obligations
of the parent or guardian of the child.” Tenn. Code Ann. § 36-1-113(l)(1);
see also Santosky, 455 U.S. at 759 (recognizing that a decision terminating
parental rights is “final and irrevocable”). In light of the interests and
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consequences at stake, parents are constitutionally entitled to “fundamentally
fair procedures” in termination proceedings. Santosky, 455 U.S. at 754; see
also Lassiter v. Dep’t of Soc. Servs. of Durham Cnty, N.C., 452 U.S. 18, 27
(1981) (discussing the due process right of parents to fundamentally fair
procedures).
Among the constitutionally mandated “fundamentally fair
procedures” is a heightened standard of proof—clear and convincing
evidence. Santosky, 455 U.S. at 769. This standard minimizes the risk of
unnecessary or erroneous governmental interference with fundamental
parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010).
“Clear and convincing evidence enables the fact-finder to form a firm belief
or conviction regarding the truth of the facts, and eliminates any serious or
substantial doubt about the correctness of these factual findings.” In re
Bernard T. 319 S.W.3d at 596 (citations omitted). The clear-and-
convincing-evidence standard ensures that the facts are established as highly
probable, rather than as simply more probable than not. In re Audrey S., 182
S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R., 183 S.W.3d 652, 660
(Tenn. Ct. App. 2005).
***
In light of the heightened burden of proof in termination proceedings,
however, the reviewing court must make its own determination as to whether
the facts, either as found by the trial court or as supported by a preponderance
of the evidence, amount to clear and convincing evidence of the elements
necessary to terminate parental rights. In re Bernard T., 319 S.W.3d at 596-
97.
In re Carrington H., 483 S.W.3d at 522-24. “[P]ersons seeking to terminate [parental]
rights must prove all the elements of their case by clear and convincing evidence,”
including statutory grounds and the best interest of the child. See In re Bernard T., 319
S.W.3d 586, 596 (Tenn. 2010).
IV. Statutory Grounds for Termination of Father’s Parental Rights
Tennessee Code Annotated § 36-1-113 (2021) lists the statutory requirements for
termination of parental rights, providing in relevant part:
(a) The chancery and circuit courts shall have concurrent jurisdiction with
the juvenile court to terminate parental or guardianship rights to a
child in a separate proceeding, or as a part of the adoption proceeding
by utilizing any grounds for termination of parental or guardianship
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rights permitted in this part or in title 37, chapter 1, part 1 and title 37,
chapter 2, part 4.
***
(c) Termination of parental or guardianship rights must be based upon:
(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and
(2) That termination of the parent’s or guardian’s rights is in the
best interests of the child.
In its final order, the trial court concluded that the evidence clearly and convincingly
supported a finding of two statutory grounds to terminate Father’s parental rights:
abandonment by an incarcerated parent, see Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-
102(1)(A)(iv), and failure to manifest an ability and willingness to assume legal and
physical custody of or financial responsibility for the Child, see Tenn. Code Ann. 36-1-
113(g)(14). We will address each statutory ground in turn.
A. Statutory Abandonment
The trial court terminated Father’s parental rights to the Child based on
abandonment by an incarcerated parent exhibiting wanton disregard for the Child’s
welfare. Tennessee Code Annotated § 36-1-102(1)(A)(iv) (Supp. 2018) provides as a
definition of abandonment:
(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.
As an initial matter, it is undisputed that Father has been incarcerated for the entirety of the
Child’s life. Father was arrested on January 18, 2017, over five months before the birth of
the Child, and has remained incarcerated continuously since that date.
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With regard to this termination ground, this Court has previously explained:
Tenn. Code Ann. § 36-1-102(1)(A)(iv) also reflects the commonsense
notion that parental incarceration is a strong indicator that there may be
problems in the home that threaten the welfare of the child. Incarceration
severely compromises a parent’s ability to perform his or her parental duties.
A parent’s decision to engage in conduct that carries with it the risk of
incarceration is itself indicative that the parent may not be fit to care for the
child. Taxonomy of Children’s Rights, 11 WM. & MARY BILL RTS. J. at
958. However, parental incarceration is not an infallible predictor of parental
unfitness. Accordingly, Tenn. Code Ann. § 36-1-102(1)(A)(iv)’s second test
for abandonment does not make incarceration alone a ground for the
termination of parental rights. An incarcerated or recently incarcerated
parent can be found guilty of abandonment only if the court finds, by clear
and convincing evidence, that the parent’s pre-incarceration conduct
displayed a wanton disregard for the welfare of the child. Thus, the parent’s
incarceration serves only as a triggering mechanism that allows the court to
take a closer look at the child’s situation to determine whether the parental
behavior that resulted in incarceration is part of a broader pattern of conduct
that renders the parent unfit or poses a risk of substantial harm to the welfare
of the child.
In re Audrey S., 182 S.W.3d 838, 866 (Tenn. Ct. App. 2005) (footnote omitted).
Furthermore, this Court has concluded 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.” Id. at 867-68.
However, for this ground to apply to a parent’s pre-incarceration behavior, the
parent must have knowledge of the child’s existence. In re Anthony R., No. M2014-01753-
COA-R3-PT, 2015 WL 3611244, at *3 (Tenn. Ct. App. June 9, 2015). In interpreting
Tennessee Code Annotated § 36-1-102(1)(A)(iv), this Court has concluded:
Logically, a person cannot disregard or display indifference about someone
whom he does not know exists. In our opinion, while the statutory reference
to “the child” can mean a child in utero, the wanton disregard language of
Tenn. Code Ann. § 36-1-102(1)(A)(iv) must be construed to require that the
father has knowledge of the child at the time his actions constituting wanton
disregard are taken.
Id.
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Although much of the focus and discussion surrounding this ground at trial
concerned whether Father knew that Mother was pregnant with the Child at the time of his
arrest, Father has not presented this argument on appeal. Nevertheless, DCS has addressed
the issue in its brief and argued that the evidence was sufficient to establish that Father
knew Mother was pregnant with the Child at the time of his arrest in January 2017. Because
Father’s knowledge of the Child’s existence is a threshold element of this statutory ground,
we will first address DCS’s postulate that sufficient evidence was presented at trial to prove
Father’s knowledge of Mother’s pregnancy at the time of his pre-incarceration conduct.
In closing argument during the termination trial, DCS requested that the trial court
make a finding that Father “knew he had a baby coming,” acknowledging that this was an
element it had to prove. In response, Father’s attorney contended that DCS had failed to
prove that Father had knowledge of Mother’s pregnancy at the time of his pre-incarceration
conduct in January 2017. The trial court made no specific finding of fact, either at trial or
in its written order, that Father knew at the time of his arrest that Mother was pregnant with
the Child. In its written order, the trial court made the following findings of fact related to
Father’s knowledge of Mother’s pregnancy:
[Father] refused to answer questions about his relationship
with [Mother] . . . .
[Father] denied knowing [Mother] was pregnant until being
served paperwork by DCS.
[Father] would not answer a question posed by DCS about
whether he had a sexual relationship with [Mother].
[Father] acknowledged that DNA Paternity testing had
definitively determined he was the biological father of the child.
[Father] acknowledged that, after DNA testing and before he
knew the results of the test, he knew he would ultimately be the child’s
father.
(Paragraph numbering omitted.) Although these facts indicate that Father knew the Child
was his child, they do not prove when he knew Mother was pregnant or specifically that
Father knew Mother was pregnant at the time of his pre-incarceration behavior in January
2017.
DCS argues that the evidence at trial undergirds a finding that Father knew Mother
was pregnant at the time of his arrest. In support, DCS posits that the trial court properly
drew a negative inference from Father’s invocation of his Fifth Amendment right against
self-incrimination in response to questions regarding his relationship with Mother.
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According to DCS, the permissible negative inference was bolstered by corroborating
evidence demonstrating that “Father was in a romantic relationship with Mother at the time
and was aware of Mother’s pregnancy.” DCS argues that the negative inference drawn
was supported by: (1) Father’s denial that he had asked Mother to terminate her pregnancy
early, which indicated that he knew Mother was pregnant; (2) Father’s testimony that he
had “no doubt” that the Child was his son; and (3) Ms. Renfroe’s identification of Mother
as Father’s co-defendant and the “girlfriend” referenced in the arrest warrant affidavit.
In civil cases, trial courts may draw negative inferences from a party’s invocation
of the Fifth Amendment right against self-incrimination. Levine v. March, 266 S.W.3d
426, 442 (Tenn. Ct. App. 2007) (“[T]he majority of jurisdictions, including Tennessee,
permit fact-finders to draw adverse inferences against parties who invoke their Fifth
Amendment rights in civil case.”) However, no negative inference may be taken unless
corroborating evidence is presented to support the “fact under inquiry.” Akers v. Prime
Succession of Tenn., Inc., 387 S.W.3d 495, 506 (Tenn. 2012).
In the present cause, the trial court does not state in its order whether it drew a
negative inference from Father’s silence in response to questions concerning his
relationship with Mother. Moreover, even had the court inferred that Father and Mother
were in a romantic relationship at the time of Father’s pre-incarceration conduct, this alone
would not prove the imperative fact of when Father knew Mother was pregnant with the
Child. See In re Michael O., No. W2017-01412-COA-R3-PT, 2018 WL 576777, at *7
(Tenn. Ct. App. Jan. 26, 2018) (concluding that the evidence was insufficient to prove
whether the father was aware of the pregnancy at the time of his pre-incarceration conduct,
even though the father and mother lived together and were married at the time).
In addition, DCS’s corroborating facts also fail to establish when Father knew
Mother was pregnant. The only evidence presented at trial was Father’s testimony that he
did not know Mother was pregnant until he was served with paperwork from DCS, which
would not have occurred before the Child’s birth in July 2017, over five months following
his arrest. The burden was upon DCS to prove Father’s knowledge and when it was held.
As DCS failed to produce sufficient evidence to overcome Father’s testimony, we conclude
that DCS failed to prove Father knew of the Child’s existence at the time of his pre-
incarceration conduct leading to his arrest and incarceration.
In the absence of establishing at what point Father became aware of Mother’s
pregnancy with the Child, we cannot conclude that Father exhibited wanton disregard for
the Child at the time of his alleged offenses and arrest. See In re Michael O., 2018 WL
576777, at *7 (concluding that the evidence failed to “establish at what point Father knew
or even suspected that Mother was pregnant with the child at issue” when DCS only proved
that (1) the father was the child’s biological father, (2) the father’s name was on the birth
certificate, (3) the mother and father lived together for several months, and (4) the mother
and father were married); In re E.C., No. E2016-02582-COA-R3-PT, 2017 WL 2438574,
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at *12 (Tenn. Ct. App. June 6, 2017) (reversing the trial court’s finding that the father
abandoned the child by wanton disregard because the record was “silent with respect to
when Father was first aware of Mother’s pregnancy”); In re Anthony R., 2015 WL
3611244, at *3 (concluding that the petitioner did not prove that the father knew of the
mother’s pregnancy when the father testified that he did not know the mother was pregnant
until after the baby was born and several months after his arrest).
The evidence presented at trial preponderates against the trial court’s implicit
finding that Father knew of the Child’s existence at the time of his arrest. As a result, we
determine that the statutory ground of abandonment by wanton disregard was unsupported
by clear and convincing evidence. We therefore reverse the trial court’s conclusion
concerning this ground.
B. Failure to Manifest an Ability and Willingness to Assume Legal and Physical
Custody of or Financial Responsibility for the Child
Father also argues that the trial court erred by finding that DCS had proven by clear
and convincing evidence that he had failed to manifest an ability and willingness to assume
legal and physical custody of or financial responsibility for the Child. Concerning this
statutory ground, Tennessee Code Annotated § 36-1-113(g)(14) (2021) provides:
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[.]
To prove this ground, DCS was required to show by clear and convincing evidence that (1)
Father failed to manifest either an ability or willingness to assume custody or financial
responsibility of the Child and (2) returning the Child to Father’s custody would pose a
risk of substantial harm to the Child’s welfare. In re Neveah M., 614 S.W.3d 659, 674, 677
(Tenn. 2020); In re Jeremiah S., No. W2019-00610-COA-R3-PT, 2020 WL 1951880, at
*6 (Tenn. Ct. App. Apr. 23, 2020) (“Under this ground for termination, the petitioner must
prove each element by clear and convincing evidence.”).
With regard to the first prong of this statutory ground, Father specifically contends
that DCS did not present clear and convincing evidence to support the trial court’s finding
that Father had failed to manifest a willingness to assume custody and that the court failed
to make a conclusion of law as to Father’s ability. As such, Father argues that “neither
factor in the first prong” was satisfied. Father additionally urges that the trial court’s
finding of a risk of substantial harm was based solely on Father’s incarcerated status, which
alone is insufficient to support termination of parental rights. We will address each element
of this ground in turn.
- 13 -
In asserting that the trial court failed to address his ability to assume custody, Father
alludes to the trial court’s conclusion of law in its written order, which stated: “Pursuant
to T.C.A. § 36-1-113(g)(14), there is clear and convincing evidence that [Father] has failed
to manifest a willingness to assume legal and physical custody of the child, such that . . .
[Father’s] parental rights should be terminated.” Although the court did not reference
Father’s ability to assume custody in that particular conclusion, the court did conclude that
Father had failed to manifest both an ability and willingness to assume custody of the Child
in two other sections of its written order. The conclusion that Father had failed to manifest
an ability is also consistent with the trial court’s oral findings announced at trial, in which
the court stated: “[Father] has indicated that he has a willingness, but the ability is not
there, and the best interest is clear.” Because the court’s written order contains two
additional determinations concluding that Father had failed to manifest both an ability and
willingness, and the court orally stated the same conclusion at the end of trial, we determine
that the court’s singular omission of Father’s ability in one section of its written order
constitutes harmless error.2 Thus, we will analyze the trial court’s conclusion as to both
Father’s ability and willingness to assume custody of the Child.
We agree with Father, and DCS appears to concede on appeal, that the evidence
presented at trial does not support the trial court’s conclusion that Father had failed to
manifest a willingness to assume custody of the Child. Moreover, the trial court’s findings
of fact do not support such a conclusion. In its written order, the court made the following
findings of fact pertinent to Father’s willingness:
DCS ratified several permanency plans throughout the pendency of
this case. On each occasion, [Father] was incarcerated. The testimony
indicated that [Father] has completed what he could on the permanency plan,
with certain limitations related to his incarceration.
***
[Father] did advise that he had a desire to be [the Child’s] father at the
conclusion of his case in Davidson County.
2
We note that trial courts speak through their written order rather than oral rulings. City of Oak Ridge v.
Levitt, 493 S.W.3d 492, 503 (Tenn. Ct. App. 2015). Nevertheless, in this case, the trial court’s oral ruling
with respect to Father’s ability shed lights on the court’s written order and supports its written ruling that
Father had failed to manifest an ability to assume legal and physical custody of or financial responsibility
for the Child. See Williams v. City of Burns, 465 S.W.3d 96, 119-20 (Tenn. 2015) (“‘It is well-settled that
a trial court speaks through its written orders—not through oral statements contained in the transcripts—
and that the appellate court reviews the trial court’s written orders.’ . . . Nevertheless, we have recognized
that a trial court’s order ‘should be construed with reference to the issues it was meant to decide, and should
be interpreted in light of the context in which it was entered.’” (quoting Morgan Keegan v. Smythe, 401
S.W.3d 595, 608 (Tenn. 2013)) (footnote omitted).
- 14 -
Contrary to the trial court’s conclusion in its written order, these findings of fact indicate
that Father had manifested a willingness to assume custody. Although it is true that in
evaluating a parent’s willingness to assume custody and responsibility of his child, we look
for more than “mere words,” see In re Cynthia P., No. E2018-01937-COA-R3-PT, 2019
WL 1313237, at *8 (Tenn. Ct. App. Mar. 22, 2019), here, Father has also demonstrated a
willingness through his actions by completing what he could of the permanency plan, cf.
In re Imerald W., No. W2019-00490-COA-R3-PT, 2020 WL 504991, at *7 (Tenn. Ct. App.
Jan. 31, 2020) (concluding that the parent had “failed to comply with or complete any of
the permanency plans’ requirements, which this Court has held constitutes a failure to
manifest an ability and willingness to assume custody or financial responsibility of a
child”).
Father’s willingness to assume custody was confirmed by Ms. Hill, who
acknowledged during trial that Father had completed everything in the permanency plan
that he could while incarcerated. In addition, the Court Appointed Special Advocate’s
report noted that Father had participated via telephone in the Child and Family Team
Meetings, continued to display an interest in the Child, and completed a parenting
assessment. Although Ms. Hill later stated that Father had not resolved his legal issues—
a goal delineated in the permanency plan—we cannot find that the resolution of Father’s
criminal charges is completely within his control, particularly when DCS failed to present
proof evincing that Father had purposefully delayed his criminal trial. Moreover, Ms. Hill
testified that DCS’s documentation reflected that Father desired to proceed with his
criminal trial and that she did not form the impression that he was trying to delay the
prosecution. Therefore, we cannot conclude that the delay in Father’s criminal trial reflects
a lack of willingness on his part to assume custody.
We therefore determine that the trial court’s conclusion that Father had failed to
manifest a willingness to assume custody of the Child was not supported by clear and
convincing evidence. However, inasmuch as DCS necessarily had to prove either a failure
to manifest a willingness or a failure to manifest an ability, we must now address whether
the trial court’s determination that Father had failed to manifest an ability to assume
custody of the Child was supported by clear and convincing evidence. See In re Neveah
M., 614 S.W.3d at 677 (“If a person seeking to terminate parental rights proves by clear
and convincing proof that a parent or guardian has failed to manifest either ability or
willingness, then the first prong of the statute is satisfied.”).
Although the trial court included only a conclusory statement that Father had failed
to manifest an ability and willingness to assume custody of the Child in the conclusions of
law in its written order, the court otherwise made sufficient findings of fact relevant to
Father’s ability to assume custody of the Child. The court found that Father was
“incarcerated in January 2017 and [had] remained in jail continuously since that time.” In
addition, the trial court found that Father’s criminal trial had been continued several times
- 15 -
and that neither Father nor DCS witnesses knew when the trial would be conducted. The
trial court’s findings of fact further provided that Father had been convicted of attempted
murder in Hamblen County in 2005. The indictment related to Father’s pending charges
supports this finding, listing Father’s two previous convictions for attempted second degree
murder in 2005 in Hamblen County.
Although not included in the court’s findings of fact, when questioned regarding
how he would raise the Child if afforded the opportunity, Father responded that he would
have a family member obtain custody of the Child presumably until he was released and
could obtain custody himself. However, Father also conceded that DCS had conducted
background checks on Father’s proposed family members and determined that they were
not viable options. Inasmuch as Father had been incarcerated continuously for nearly four
years without a resolution of his charges, we conclude that the trial court properly found
by clear and convincing evidence that Father did not have the ability to care for the Child.
Whether incarceration alone is sufficient to prove that a parent lacks the ability to
care for his child has recently been addressed by this Court in In re Ahleigha C., in which
the majority held that incarceration alone is insufficient to satisfy either the first or second
prong of this ground. No. E2020-01683-COA-R3-PT, 2021 WL 3401021, at *7-8 (Tenn.
Ct. App. Aug. 4, 2021). We determine Ahleigha C. to be distinguishable from this case,
however, because the father therein confronted only one criminal charge and DCS
presented no evidence of a history of criminal behavior on the part of the father. See id. at
*8. In fact, as mentioned in a footnote, the Ahleigha C. Court distinguished the father’s
circumstances in that case from other actions where a history of criminal behavior had been
demonstrated. See id. at n.8.
Father’s situation is similar to several other cases in which this Court has determined
that a parent’s incarceration and criminal history constituted clear and convincing evidence
that the parent had failed to manifest an ability to assume custody. See In re Jeremiah S.,
2020 WL 1951880, at *8 (“Mother has been incarcerated since March 22, 2017 – about
half of Jeremiah’s life and nearly all of Joseph’s, evidencing a clear inability to assume
custody and financial responsibility, despite any amount of willingness.”); In re Eli S., No.
M2019-00974-COA-R3-PT, 2020 WL 1814895, at *8 (Tenn. Ct. App. Apr. 9, 2020) (“In
light of the above standards and the evidence in the record, we agree with the trial court
that Mother’s history of drug abuse and both parents’ repeated criminal conduct and
resulting incarceration demonstrates that each lacks the ability to parent Eli.”); In re O.M.,
No. E2018-01463-COA-R3-PT, 2019 WL 1872511, at *4 (Tenn. Ct. App. Apr. 26, 2019)
(determining that the father had “failed to demonstrate any ability or willingness to
personally assume legal and physical custody or financial responsibility of any of the
children” when his “history [was] replete with drugs and crime” and he was “serving a
twenty-four year sentence”); In re Ke'Andre C., No. M2017-01361-COA-R3-PT, 2018 WL
587966, at *11 (Tenn. Ct. App. Jan. 29, 2018) (determining that the parents, who were both
incarcerated at the time of trial, “lacked the ability to assume custody of the Children” and
- 16 -
that “each parent knowingly engaged in repeated criminal conduct that necessitated their
re-incarceration and would put the Children at physical and/or psychological risk if placed
in their custody”). By reason of Father’s current incarceration and his history of criminal
behavior, we determine that the trial court properly found that Father lacked the ability to
assume custody of the Child.
Furthermore, DCS presented ample evidence to prove a risk of substantial harm to
the Child if returned to Father’s custody. This Court has previously observed:
The courts have not undertaken to define the circumstances that pose a risk
of substantial harm to a child. These circumstances are not amenable to
precise definition because of the variability of human conduct. However, the
use of the modifier “substantial” indicates two things. First, it connotes a
real hazard or danger that is not minor, trivial, or insignificant. Second, it
indicates that the harm must be more than a theoretical possibility. While
the harm need not be inevitable, it must be sufficiently probable to prompt a
reasonable person to believe that the harm will occur more likely than not.
In re Maya R., No. E2017-01634-COA-R3-PT, 2018 WL 1629930, at *8 (Tenn. Ct. App.
Apr. 4, 2018) (quoting Ray v. Ray, 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001)).
The trial court’s findings of fact support its conclusion that the Child would be at
risk of substantial harm if returned to Father’s custody. The court made the following
findings of fact relevant to this element:
The Court finds that it is clear from the best interest determination that
this minor child is right where he needs to be. The child is three and a half
years old. The Court further finds that the majority of what . . . cognitive
ability the child has right now, things that he can remember, colors he can
identify, foods he likes – all of that’s happened in the [Foster Parents’] home.
The Court finds that there is no question that the child is bonded with
his foster parents. The foster parents love him. The foster parents have
provided for him on a day to day basis, 24/7, since March of 2018.
The Court finds that there is no identifiable bond between the child
and [Father]. Further, [Father] even acknowledges that, while he feels
bonded to [the Child], he says [the Child] has not had the opportunity to
develop a bond with him.
The Court finds that you cannot press a pause button on this child’s
life. There is no way to do it. This child is going to continue to develop,
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going to continue to grow, going to continue to evolve, and in the situation
that he is in right now, he is thriving.
***
[Father] is interested in his outlook, and as well as he should be, but
this child should not suffer and not languish in foster care without
permanency and lack of future because of [Father’s] choices to not actively
proceed with his case.
***
[Father has] been incarcerated this child’s entire life and then a few months
more. He has no relationship with his child whatsoever other than having a
common DNA. There is no meaningful relationship. There is no bond, and
the child calls someone else his father.
(Paragraph numbering omitted.)
The evidence does not preponderate against these findings of fact. The evidence
overwhelmingly demonstrates that the Child has bonded to Foster Parents, has thrived in
their custody, and has never known Father in any meaningful way. Due to these
circumstances, placing the Child in Father’s custody would clearly pose a risk of
substantial harm to the Child’s welfare.
This Court has previously determined that removing a child who has “bonded and
thrived” with his current family and placing a child in the custody of a near-stranger would
amount to substantial harm. See In re Braelyn S., No. E2020-00043-COA-R3-PT, 2020
WL 4200088, at *17 (Tenn. Ct. App. July 22, 2020) (determining that the child would be
at risk of substantial psychological harm if custody were restored to the father who had
been apart from the child for five years and was a “virtual stranger.”); In re Antonio J., No.
M2019-00255-COA-R3-PT, 2019 WL 6312951, at *9 (Tenn. Ct. App. Nov. 25, 2019)
(concluding that placing the children in the mother’s custody would put them at risk of
substantial harm because the children were “very young” when they were removed and had
“little to no contact” with the mother for more than a year).
In the case at bar, removing the Child from Foster Parents who have cared for him
since he was nine months of age and placing him in Father’s custody would undoubtedly
pose a risk of substantial harm to the Child. Father is a stranger to the Child. Father has
been incarcerated for the Child’s entire life, and Father testified that he had spent a total of
ten minutes with the Child. Foster Mother testified that the Child did not mention Father
and did not even know who Father was. She also stated that the last time the Child saw
Father was briefly in court two years prior to the termination trial. Furthermore, the
- 18 -
evidence presented at trial overwhelmingly supports the trial court’s conclusion that the
Child had bonded and thrived with Foster Parents. Thus, removing the Child from Foster
Parents, with whom he has certainly become attached and calls “Mama” and “Daddy,”
would present a risk of substantial harm to the Child’s welfare. Despite Father’s argument,
additional factors other than Father’s incarceration strongly support the trial court’s
conclusion that placing the Child in Father’s custody would present a risk of substantial
harm to the Child.
Upon careful review, we conclude that clear and convincing evidence supported the
trial court’s finding that Father had failed to manifest an ability to assume legal and
physical custody of or financial responsibility for the Child and that placing the Child in
Father’s custody would put the Child’s welfare at risk of substantial harm. Ergo, this
statutory ground for termination of Father’s parental rights has been established, and the
trial court’s conclusion is affirmed.
V. Best Interest of the Child
Although Father has not challenged the trial court’s determination that termination
of Father’s parental rights was in the best interest of the Child, DCS has raised the issue,
correctly noting that we must review the court’s best interest finding regardless of whether
it is raised as an issue by the appellant. In re Carrington H., 483 S.W.3d at 525-26. When
a parent has been found to be unfit by establishment of at least one statutory ground for
termination of parental rights, as here, the interests of parent and child diverge, and the
focus shifts to what is in the child’s best interest. In re Audrey S., 182 S.W.3d at 877; see
also In re Carrington H., 483 S.W.3d at 523 (“The best interests analysis is separate from
and subsequent to the determination that there is clear and convincing evidence of grounds
for termination.” (quoting In re Angela E., 303 S.W.3d 240, (Tenn. 2010))). Tennessee
Code Annotated § 36-1-113(i) provides a list of factors the trial court is to consider when
determining if termination of parental rights is in a child’s best interest. This list is not
exhaustive, and the statute does not require the court to find the existence of every factor
before concluding that termination is in a child’s best interest. See In re Carrington H.,
483 S.W.3d at 523; In re Audrey S., 182 S.W.3d at 878 (“The relevancy and weight to be
given each factor depends on the unique facts of each case.”). Furthermore, the best interest
of a child must be determined from the child’s perspective and not the parent’s. White v.
Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004).
The version of Tennessee Code Annotated § 36-1-113(i) (Supp. 2020) in effect
when the termination petition was filed in the instant action listed the following factors for
consideration:3
3
Effective April 22, 2021, the General Assembly has amended Tennessee Code Annotated § 36-1-113(i)
by deleting the previous subsection in its entirety and substituting a new subsection providing, inter alia,
twenty factors to be considered in determining a child’s best interest in a case involving termination of
- 19 -
(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;
(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
parental rights. See 2021 Tenn. Pub. Acts, Ch. 190 § 1 (S.B. 205). However, because the termination
petition in this case was filed prior to the effective date of the amendment, the statutory best interest factors
provided in the prior version of the statute are applicable here. See, e.g., In re Braxton M., 531 S.W.3d 708,
732 (Tenn. Ct. App. 2017).
- 20 -
(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.
As our Supreme Court has instructed regarding the best interest analysis:
“The best interests analysis is separate from and subsequent to the
determination that there is clear and convincing evidence of grounds for
termination.” In re Angela E., 303 S.W.3d [240,] 254 [(Tenn. 2010)].
When conducting the best interests analysis, courts must consider nine
statutory factors listed in Tennessee Code Annotated section 36-1-113(i).
These statutory factors are illustrative, not exclusive, and any party to the
termination proceeding is free to offer proof of any other factor relevant to
the best interests analysis. In re Carrington H., 483 S.W.3d at 523 (citing In
re Audrey S., 182 S.W.3d 838, 878 (Tenn. Ct. App. 2005)). Facts considered
in the best interests analysis must be proven by “a preponderance of the
evidence, not by clear and convincing evidence.” In re Kaliyah S., 455
S.W.3d [533,] 555 [(Tenn. 2015)] (citing In re Audrey S., 182 S.W.3d at
861). “After making the underlying factual findings, the trial court should
then consider the combined weight of those facts to determine whether they
amount to clear and convincing evidence that termination is in the child’s
best interest[s].” Id. When considering these statutory factors, courts must
remember that “[t]he child’s best interests [are] viewed from the child’s,
rather than the parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878.
Indeed, “[a] focus on the perspective of the child is the common theme”
evident in all of the statutory factors. Id. “[W]hen the best interests of the
child and those of the adults are in conflict, such conflict shall always be
resolved to favor the rights and the best interests of the child. . . .” Tenn.
Code Ann. § 36-1-101(d) (2017).
Ascertaining a child’s best interests involves more than a “rote
examination” of the statutory factors. In re Audrey S., 182 S.W.3d at 878.
And the best interests analysis consists of more than tallying the number of
statutory factors weighing in favor of or against termination. White v.
Moody, 171 S.W.3d 187, 193-94 (Tenn. Ct. App. 2004). Rather, the facts
and circumstances of each unique case dictate how weighty and relevant each
statutory factor is in the context of the case. See In re Audrey S., 182 S.W.3d
at 878. Simply put, the best interests analysis is and must remain a factually
intensive undertaking, so as to ensure that every parent receives
individualized consideration before fundamental parental rights are
terminated. In re Carrington H., 483 S.W.3d at 523. “[D]epending upon the
circumstances of a particular child and a particular parent, the consideration
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of one factor may very well dictate the outcome of the analysis.” In re
Audrey S., 182 S.W.3d at 878 (citing White v. Moody, 171 S.W.3d at 194).
But this does not mean that a court is relieved of the obligation of considering
all the factors and all the proof. Even if the circumstances of a particular
case ultimately result in the court ascribing more weight—even outcome
determinative weight—to a particular statutory factor, the court must
consider all of the statutory factors, as well as any other relevant proof any
party offers.
In re Gabriella D., 531 S.W.3d 662, 681-82 (Tenn. 2017).
In the instant action, the trial court concluded that the statutory factors weighed
against maintaining Father’s parental rights to the Child. In its written order, the trial court
specifically found as follows:
The Court finds that the best interest factor contained in T.C.A. § 36-
1-113(i)(1) is applicable in this matter. Thus, the Court finds that it is in the
best interest of the minor child for termination to be granted as to [Father],
because [Father] has not made changes in his conduct or circumstances that
would make it safe for the child[] to go home. Specifically, from birth of the
child[] until the conclusion of the hearing on November 11, 2020, [Father]
has been incarcerated in Davidson County correctional institutions. There
has been no change in [Father’s] circumstances from the child’s birth to now.
Thus, the Court finds that this factor weighs in favor of terminating [Father’s]
parental rights.
The Court finds that the best interest factor contained in T.C.A. § 36-
1-113(i)(2) is applicable in this matter. Thus, the Court finds that it is in the
child’s best interests for termination to be granted as to [Father], because he
has not made lasting changes in his lifestyle or conduct after reasonable
efforts by the state to help, so that lasting change does not appear possible.
DCS has been limited in what services have been available to [Father]
because [Father] has been continuously incarcerated the entire pendency of
the custodial case. Nonetheless, DCS has made reasonable efforts as feasible
under the circumstances. [Father] has not made a lasting adjustment and
could not testify to when his trial will be held in his criminal case. Thus, the
Court finds that this factor weighs in favor of terminating [Father’s] parental
rights.
The Court finds that the best interest factor contained in T.C.A. § 36-
1-113(i)(3) is applicable in this matter. The Court finds that it is in the child’s
best interests for termination to be granted as to [Father], because [Father]
has not engaged in regular visitation with the child. [Father] has visited the
- 22 -
child on two occasions, in the Wilson County Juvenile Court, for about five
(5) minutes on each occasion. Thus, the Court finds that this factor weighs
in favor of terminating [Father’s] parental rights.
The Court finds that the best interest factor contained in T.C.A. § 36-
1-113(i)(4) is applicable in this matter. The Court finds that it is in the child’s
best interests for termination to be granted as to [Father], because . . . no
meaningful parent/child relationship between [Father] and [the Child] exists.
The child has spent approximately ten (10) minutes of his life with [Father].
Thus, the Court finds that this factor weighs in favor of terminating [Father’s]
parental rights.
The Court finds that the best interest factor contained in T.C.A. § 36-
1-113(i)(5) is applicable in this matter. Thus, the Court finds that it is in the
child’s best interest for termination to be granted as to [Father], because
changing caregivers at this stage of the child’s life would have a detrimental
effect on him. [The Child] has been with his current family for a period of
approximately 19 months at the time of the hearing. [The Child] views his
foster mother and father as his parents. [The Child] is in a very stable and
loving home with the foster family and is thriving. It is entirely untenable
for the child to be placed with [Father] as he remains incarcerated. [Father]
and the child have no relationship. Thus, the Court finds that this factor
weighs in favor of terminating [Father’s] parental rights.
The Court finds that the best interest factor contained in T.C.A. § 36-
1-113(i)(6) is not applicable in this matter and does not weigh in favor of, or
against, termination.
The Court finds that the best interest factor contained in T.C.A. § 36-
1-113(i)(7) is applicable in this matter. Thus, the Court finds that . . . it is in
the child’s best interest for termination to be granted as to [Father], because
the home of [Father] is a correctional facility and not appropriate for a minor.
Furthermore, [Father] has previously served significant prison time in
Hamblen County, Tennessee for an attempted murder conviction and
currently awaits trial on a homicide charge in Davidson County, Tennessee.
Thus, the Court finds that this factor weighs in favor of terminating [Father’s]
parental rights.
The Court finds that the best interest factor contained in T.C.A. § 36-
1-113(i)(8) is applicable as there was no proof in the record as to an
emotional or mental deficit for [Father]. As such, this factor weigh[s] against
termination.
- 23 -
The Court finds that the best interest factor contained in T.C.A. § 36-
1-113(i)(9) is not applicable in this matter and does not weigh in favor of, or
against, termination. [Father] has been incarcerated throughout the entire life
of the child and as such, has been unable to provide support.
***
Having evaluated all of the relevant best interest factors found in
T.C.A. § 36-1-113(i), there is clear and convincing evidence that it is in the
best interest of the minor child for the parental rights of [Father] to be forever
terminated.
Upon careful review, we agree with the trial court’s determination that termination of
Father’s parental rights was in the Child’s best interest.
The trial court found that six of the nine best interest factors weighed in favor of
terminating Father’s parental rights to the Child. The court determined that factor eight,
whether Father’s mental and/or emotional status would be detrimental to the Child,
weighed against termination because DCS had presented no proof of any mental or
emotional deficit suffered by Father. The court found factor nine to be essentially neutral,
noting that Father had been incarcerated throughout the Child’s entire life and had been
unable to provide support. The record supports the trial court’s findings concerning these
factors. The trial court also found that factor six was neutral, ostensibly because DCS
presented no evidence to suggest that Father had shown brutality or abuse toward the Child
or anyone else in his family or household. However, due to this lack of evidence, the trial
court should have weighed this factor against termination of Father’s parental rights, rather
than neutrally. See In re Braelyn S., 2020 WL 4200088, at *20 (“In the absence of evidence
that tied Father to abuse, an unsafe home, or an unstable mental or emotional state, we must
conclude that these factors weigh against termination.”).
The trial court weighed the first two factors against maintaining Father’s parental
rights. The first two factors relate to Father’s adjustment of circumstance, and the second
factor specifically includes DCS’s efforts to aid Father in making lasting adjustments.
Although Father does not challenge the court’s best interest finding, he has argued
elsewhere that the court erroneously attributed the delay of his criminal trial to Father. As
with Father’s alleged failure to manifest a willingness to assume custody, DCS presented
no evidence to indicate that Father had purposefully delayed his criminal trial, prolonged
his incarceration, or had control over his criminal case to hasten resolution of his charges.
From the record, it appears that both Father and DCS were hindered to some extent in their
efforts to make an adjustment in Father’s situation considering his incarceration and
pending charges.
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However, we do not conclude that the evidence preponderates against the court’s
finding as to these two factors because “[t]he child’s best interests must be viewed from
the child’s, rather than the parent’s, perspective.” In re Audrey S., 182 S.W.3d at 878. In
addition, “[t]his court has frequently and for a long time recognized that, as a general
proposition, a child’s best interest was served by termination of parental rights where, no
matter the cause, there was no reasonable expectation the child could be reunited with a
parent in the near future.” In re M.H., No. M2005-00117-COA-R3-PT, 2005 WL 3273073,
at *13 (Tenn. Ct. App. Dec. 2, 2005) (emphasis added). Concerning the Child’s
perspective, it matters not whether Father’s failure to make an adjustment to his
circumstances was due to Father’s failure to file a motion for a speedy trial or a motion for
a bond hearing, as the trial court had determined. The fact remains that Father has been
incarcerated for the first three years of the Child’s life and continues to be incarcerated. To
the extent that it was error for the court to place fault with Father, we find this to be
harmless error because from the Child’s perspective, Father’s situation remains
incompatible with parenting and providing a stable home for the Child. Therefore, we
conclude that the evidence does not preponderate against the court’s findings as to the first
two factors.
With regard to factor three, we also conclude that the evidence does not
preponderate against the trial court’s finding that this factor weighed in favor of
termination. Father testified that he had been able to visit with the Child only twice for a
total of ten minutes at the Wilson County Juvenile Court. These brief visits over three
years’ time do not constitute regular visitation. Although this minimal visitation is by
reason of Father’s incarceration, this Court has previously concluded that “the reasons for
the lack of interaction matter little.” See White v. Moody, 171 S.W.3d at 194. Due to
Father’s incarceration and his brief encounters with the Child, this factor weighs in favor
of terminating Father’s parental rights because Father is little more than a stranger to the
Child. These facts also support the court’s conclusion that factor four, whether a
meaningful relationship exists between Father and the Child, weighed in favor of
terminating Father’s parental rights.
As noted earlier with respect to the potential risk of substantial harm to the Child’s
welfare, the evidence at trial supported the trial court’s finding that factor five weighed in
favor of termination. The Child has bonded with Foster Parents, thrived under their care,
and developed a significant attachment. To return the Child to Father, a near-stranger, and
remove him from Foster Parents’ care and custody would likely have a deleterious effect
on the Child’s emotional and psychological condition.
Lastly, the evidence supports the trial court’s conclusion that factor seven weighs in
favor of terminating Father’s parental rights. Father had been incarcerated for nearly four
years by the time of trial. As the court correctly noted, a correctional facility is not an
option as a home for a child, let alone an appropriate home. For this reason, it is not feasible
to return the Child to Father’s custody.
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Based on our careful review of the evidence, we conclude that the evidence
presented does not preponderate against the trial court’s determination by clear and
convincing evidence that termination of Father’s parental rights was in the best interest of
the Child. Having also determined that one statutory ground was established by the same
quantum of proof, we affirm the trial court’s termination of Father’s parental rights to the
Child.
VI. Conclusion
For the foregoing reasons, we reverse the trial court’s determination regarding
abandonment by an incarcerated parent exhibiting wanton disregard under Tennessee Code
Annotated § 36-1-102(1)(A)(iv). We affirm the trial court’s judgment in all other respects,
including the termination of Father’s parental rights to the Child. This case is remanded to
the trial court, pursuant to applicable law, for enforcement of the trial court’s judgment
terminating Father’s parental rights to the Child and collection of costs assessed below.
Costs on appeal are assessed to the appellant, Kevin W.
s/ Thomas R. Frierson, II_____________
THOMAS R. FRIERSON, II, JUDGE
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