In Re Jaydin A. ( 2019 )

12/12/2019
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs November 1, 2019
IN RE JAYDIN A. ET AL.
Appeal from the Juvenile Court for Wilson County
No. 95-JC-2017-JT-9 Charles B. Tatum, Judge
___________________________________
No. M2018-02145-COA-R3-PT
___________________________________
Father appeals the trial court’s decision to terminate his parental rights on grounds of
abandonment by an incarcerated parent and failure to manifest a willingness and ability
to assume custody. The evidence at trial showed that due to Father’s repeated criminal
conduct, including two instances where Father fled the State to escape justice, he has had
no contact with his daughter for approximately 95% of the child’s life. Because we
conclude that the evidence was clear and convincing as to both grounds for termination
and best interest, we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR. and ANDY D. BENNETT, JJ., joined.
Sonia Jennings Boss, Nashville, Tennessee, for the appellant, Michael M.
Herbert H. Slatery, III, Attorney General and Reporter; and Amber L. Seymour, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.
W. Michael Kilgore, Mount Juliet, Tennessee, Guardian ad litem.
OPINION
I. BACKGROUND
On December 5, 2017, Petitioner/Appellee the Tennessee Department of
Children’s Services (“DCS”) filed a petition to terminate the parental rights of
Respondent/Appellant Michael M.1 (“Father”) to his minor child, born in March 2017.2
1
In cases involving termination of parental rights, it is this Court’s policy to remove the full
The petition alleged as grounds abandonment by an incarcerated parent and failure to
manifest a willingness and ability to assume custody.
A termination trial occurred on September 25, 2018. Much of the testimony
concerned Father’s criminal history and incarceration. Father was incarcerated at the time
of trial and had been incarcerated continuously from April 16, 2018, until the date of
trial.3 Father testified that he would be automatically paroled in nine months so long as he
completed a drug program. Father admitted that he was incarcerated on his eighteenth
birthday and thereafter for the majority of the child’s life.
Specifically, at the time that the child was born, Father was on probation for
possession of methamphetamine and possession of drug paraphilia. Approximately one
month after the child’s birth, Father chose to flee from Tennessee to Ohio, taking the
child and her mother along. Father was apprehended in April 2017, and the child was
taken into DCS custody at that time. Eventually, Father was transferred back to
Tennessee, where he served approximately seven months in jail. Upon release, Father
was subject to ankle monitoring. Sixteen days after his release, however, Father cut off
his “ankle bracelet” and fled to Texas. He was apprehended thirteen days later and
returned to Tennessee. Father further testified that in the eighteen months following the
removal of the child, he was released and re-incarcerated on multiple occasions, with a
total of three to four months out of incarceration, “maybe a month at a time.” More
specifically, Father testified that in the four months prior to the filing of the termination
petition, he was incarcerated except for “a week or two at a time.”
Father admitted that a large portion of his criminal charges stemmed from Father’s
drug addiction, specifically to methamphetamine. Father testified that he is participating
in a drug treatment program in prison. Father further testified that he is able to financially
support the child due to a disability check and recently inheriting his parents’ home.
When the trial court questioned Father about whether Father would “squander [the
inheritance] on drugs,” Father replied that “I mean, I just got to take it one day at a time. I
don’t know if it’s going to happen. I just got to put my faith in God and hope it don’t and
just try.”
The child was a little over one month old at the time of the removal. The child was
thereafter placed in the same foster home with her half-sibling, where she remained at the
time of trial, a period of approximately eighteen months. The DCS worker testified that
the child is bonded with her foster family. The foster family hopes to adopt both the child
names of children and other parties to protect their identities.
2
The caption of this case refers to the child-at-issue’s half sibling. Mother surrendered her
parental rights to both children prior to the filing of the petition. The petition also sought to terminate the
parental rights of Jaydin’s father. His rights were terminated after he did not participate. Neither Jaydin
nor his father is at issue in this appeal.
3
During this period, Father was serving time in different counties.
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at issue and her half-sibling. Following the removal of the child, Father had no contact
with the child. Although the DCS worker testified that Father once texted her to ask for
photographs of the child, Father denied this, stating that “I didn’t have a conversation
because I don’t give people my phone numbers that’s involved in stuff like that because
that’s a way for me to get caught. . . . DCS can rat you out to authorities, so why would I
give my number to DCS?” Father did admit that one DCS worker did contact him at one
point prior to the termination hearing; Father asked the DCS worker whether he should
surrender his parental rights, and the DCS worker replied that she could not provide
advice in that manner to Father.
The trial court entered a final order granting DCS’s petition on October 31, 2018.
Specifically, the trial court ruled that DCS presented clear and convincing evidence of
abandonment by an incarcerated parent through wanton disregard and failure to manifest
the ability and willingness to assume custody, as well as that termination was in the
child’s best interest. Father appealed.
II. ISSUES PRESENTED
On appeal, Father challenges only the best interest findings made by the trial
court. Because of the duty imposed on this Court by the Tennessee Supreme Court in In
re Carrington H., 483 S.W.3d 507, 525–26 (Tenn. 2016), we will also consider whether
the grounds found by the trial court are supported by sufficient evidence.
III. STANDARD OF REVIEW
The Tennessee Supreme Court has previously explained that:
A parent’s right to the care and custody of her child is among the oldest of
the judicially recognized fundamental liberty interests protected by the Due
Process Clauses of the federal and state constitutions. Troxel v. Granville,
530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); Stanley v. Illinois,
405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); In re Angela E.,
303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female Child, 896
S.W.2d 546, 547–48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d 573, 578–
79 (Tenn. 1993). But parental rights, although fundamental and
constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at
250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors. .
. .’ Tennessee law, thus, upholds the [S]tate’s authority as parens patriae
when interference with parenting is necessary to prevent serious harm to a
child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d
425, 429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S.
745, 747, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In re Angela E., 303
S.W.3d at 250.
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In re Carrington H., 483 S.W.3d 507, 52223 (Tenn. 2016) (footnote omitted). In
Tennessee, termination of parental rights is governed by statute which identifies
“‘situations in which that state’s interest in the welfare of a child justifies interference
with a parent’s constitutional rights by setting forth grounds on which termination
proceedings can be brought.’” In re Jacobe M.J., 434 S.W.3d 565, 568 (Tenn. Ct. App.
2013) (quoting In re W.B., Nos. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-
PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. §
36-1-113(g))). Thus, a party seeking to terminate a parent’s rights must prove: (1)
existence of one of the statutory grounds and (2) that termination is in the child’s best
interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn.
2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
Considering the fundamental nature of a parent’s rights, and the serious
consequences that stem from termination of those rights, a higher standard of proof is
required in determining termination cases. Santosky, 455 U.S. at 769. As such, a party
must prove statutory grounds and the child’s best interests by clear and convincing
evidence. Tenn. Code Ann. § 36-3-113(c); In re Valentine, 79 S.W.3d at 546. Clear
and convincing evidence “establishes that the truth of the facts asserted is highly probable
. . . and eliminates any serious or substantial doubt about the correctness of the
conclusions drawn from evidence[,]” and “produces in a fact-finder’s mind a firm belief
or conviction regarding the truth of the facts sought to be established.” In re M.J.B., 140
S.W.3d 643, 653 (Tenn. Ct. App. 2004).
In termination cases, appellate courts review a trial court’s factual findings de
novo and accord these findings a presumption of correctness unless the evidence
preponderates otherwise. Tenn. R. App. P. 13(d); In re Carrington H., 483 S.W.3d at
52324 (citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010); In re M.L.P., 281
S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H., 215 S.W.3d 793, 809 (Tenn.
2007)). Our supreme court further explains:
The trial court’s ruling that the evidence sufficiently supports termination
of parental rights is a conclusion of law, which appellate courts review de
novo with no presumption of correctness. In re M.L.P., 281 S.W.3d at
393 (quoting In re Adoption of A.M.H., 215 S.W.3d at 810). Additionally,
all other questions of law in parental termination appeals, as in other
appeals, are reviewed de novo with no presumption of correctness. In re
Angela E., 303 S.W.3d at 246.
In re Carrington H., 483 S.W.3d at 524.
Lastly, in the event that the “resolution of an issue in a case depends upon the
truthfulness of witnesses, the trial judge, who has had the opportunity to observe the
witnesses and their manner and demeanor while testifying, is in a far better position than
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this Court to decide those issues.” In re Navada N., 498 S.W.3d 579, 591 (Tenn. Ct.
App. 2016) (citing McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995);
Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997)). This Court therefore
“gives great weight to the credibility accorded to a particular witness by the trial court.”
In re Christopher J., No. W2016-02149-COA-R3-PT, 2017 WL 5992359, at *3 (Tenn.
Ct. App. Dec. 4, 2017) (citing Whitaker, 957 S.W.2d at 837).
IV. DISCUSSION
A. Grounds for Termination
The trial court found two grounds for termination of Father’s parental rights:
abandonment by wanton disregard and failure to manifest an ability and willingness to
assume custody. In this case, the evidence supporting each ground generally overlaps.
This, however, is not a bar to finding multiple grounds for termination. See Tenn. Code
Ann. § 36-1-113(g) (“[A]cts or omissions in one ground does not prevent them from
coming within another ground[.]”). We will therefore consider each ground in turn.
1. Wanton Disregard
The first ground find by the trial court was abandonment through wanton
disregard, found at Tennessee Code Annotated section 36-1-113(g) and 36-1-102. Under
section 36-1-113(g)(1), “[a]bandonment by the parent or guardian, as defined in § 36-1-
102” may constitute a ground for termination. Section 36-1-102(a) in turn contains
several definitions for the statutory ground of abandonment. At the time the petition was
filed, the relevant definition of abandonment provided as follows:
A parent or guardian is incarcerated at the time of the institution of an
action or proceeding to declare a child to be an abandoned child, or the
parent or guardian has been incarcerated during all or part of the four (4)
months immediately preceding the institution of such action or proceeding,
and either has willfully failed to visit or has willfully failed to support or
has willfully failed to make reasonable payments toward the support of the
child for four (4) consecutive months immediately preceding such parent’s
or guardian’s incarceration, or the parent or guardian has engaged in
conduct prior to incarceration that exhibits a wanton disregard for the
welfare of the child. If the four-month period immediately preceding the
institution of the action or the four-month period immediately preceding
such parent’s incarceration is interrupted by a period or periods of
incarceration, and there are not four (4) consecutive months without
incarceration immediately preceding either event, a four-month period shall
be created by aggregating the shorter periods of nonincarceration beginning
with the most recent period of nonincarceration prior to commencement of
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the action and moving back in time. Periods of incarceration of less than
seven (7) days duration shall be counted as periods of nonincarceration.
Periods of incarceration not discovered by the petitioner and concealed,
denied, or forgotten by the parent shall also be counted as periods of
nonincarceration. A finding that the parent has abandoned the child for a
defined period in excess of four (4) months that would necessarily include
the four (4) months of nonincarceration immediately prior to the institution
of the action, but which does not precisely define the relevant four-month
period, shall be sufficient to establish abandonment; . . . .
Tenn. Code Ann. § 36-1-102(a)(iv) (2017).4 Here, the trial court specifically relied on the
wanton disregard form of abandonment contained in section 36-1-102(a)(iv). Thus, DCS
was required to prove that Father was “incarcerated during all or part of the four (4)
months immediately preceding the institution of such action” and that Father “has
engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare
of the child.” Id.
As an initial matter, Father admitted that he was incarcerated for at least a portion
of the four months preceding the filing of the termination petition.5 Incarceration alone,
however, is not sufficient to support this ground. In re Michael O., No. W2017-01412-
COA-R3-PT, 2018 WL 576777, at *5 (Tenn. Ct. App. Jan. 26, 2018). “An incarcerated or
recently incarcerated parent can be found [to have committed] 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.” In re Audrey S., 182 S.W.3d
838, 866 (Tenn. Ct. App. 2005). The statutory language balances the notion that
“incarceration is a strong indicator that there may be problems in the home that threaten
the welfare of the child[,]” yet, “incarceration alone in not an infallible predictor of
parental unfitness.” Id. Therefore, a parent’s incarceration acts as a “triggering
mechanism” that allows the court to examine more closely 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.” Id. As such, many cases have held that a “parent’s previous
criminal conduct, coupled with a history of drug abuse, constitutes a wanton disregard for
the welfare of the child.” In re Navada N., 498 S.W.3d at 602; see, e.g., State v. J.M.F.,
No. E2003-03081-COA-R3-PT, 2005 WL 94465, at *8 (Tenn. Ct. App. Jan. 11, 2005);
In re C. LaC., No. M2003-02164-COA-R3-PT, 2004 WL 533937, at *7 (Tenn. Ct. App.
Mar. 17, 2004); State v. Wiley, No. 03A01-9903-JV-00091, 1999 WL 1068726, at *7
4
This definition was amended in 2019 to remove the terms willful and willfully wherever they
appear. See 2018 Tenn. Laws Pub. Ch. 875 (H.B. 1856), eff. July 1, 2018. The amendment went into
effect following the institution of this action and is not relevant to the issues presented in this appeal.
5
The DCS worker also testified that Father was incarcerated from October 28, 2017, to at least
November 20, 2017. This period of incarceration occurred in the four months prior to the filing of the
termination petition.
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(Tenn. Ct. App. Nov. 24, 1999); In the Matter of Shipley, No. 03A01–9611–JV–00369,
1997 WL 596281, at *5 (Tenn. Ct. App. Sept. 29, 1997). Further, “probation violations,
repeated incarceration, criminal behavior, substance abuse, and the failure to provide
adequate support or supervision for a child” can constitute conduct demonstrating a
wanton disregard for the child. In re Audrey S., 182 S.W.3d at 867–68. The court may
consider a parent’s behavior prior to the four months immediately preceding
incarceration in finding behavior that exhibited wanton disregard for the child. Id. at 871.
The trial court’s finding that Father’s pre-incarceration conduct exhibited a wanton
disregard for the child is fully supported by the record. Father was on probation for drug
offenses when the child was born. After the child’s birth, Father chose to flee from
authorities to another state, fully knowing that this was a violation of his probation and
that it would likely result in his incarceration. Father served approximately seven months
in jail for that violation. Father was thereafter released, only to violate his probation again
by fleeing to another state. Father admitted that between his current incarceration and the
initial incarceration that caused the removal of the child, he had only been released from
incarceration three or four months, no more than a month each time. Indeed, Father
himself admitted that he had difficulty recalling the dates of his incarcerations as he had
“been locked up so many times, I forget them.” Moreover, although the dates in the
record are somewhat unclear, Father admitted that he had a problem with
methamphetamine that caused him to violate his probation “time after time after time.”
Finally, during the relevant time period, Father made little effort to contact DCS
concerning the child, fearing that to do so would endanger his own freedom. Thus, Father
put his desire to escape justice for his crimes ahead of his duty to parent his child. This
situation presents a textbook example of a wanton disregard for a child. The trial court’s
decision to find clear and convincing evidence of this ground is therefore affirmed.
2. Willingness and Ability
Turning to the final statutory ground found by the trial court, parental rights can be
terminated when
A parent or guardian has failed to manifest, by act or omission, an ability
and willingness to personally assume legal and physical custody or
financial responsibility of the child, and placing the child in the person’s
legal and physical custody would pose a risk of substantial harm to the
physical or psychological welfare of the child.
Tenn. Code Ann. § 36-1-113(g)(14). This statutory ground is essentially two distinct
elements that must each be proven by clear and convincing evidence:
First, DCS must prove that [the parent] failed to manifest ‘an ability and
willingness to personally assume legal and physical custody or financial
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responsibility of the child[ren].’ DCS must then prove that placing the
children in [the parent’s] ‘legal and physical custody would pose a risk of
substantial harm to the physical or psychological welfare of the child[ren].’
In re Maya R., No. E2017-01634-COA-R3-PT, 2018 WL 1629930, at *7 (Tenn. Ct. App.
Apr. 4, 2018) (quoting Tenn. Code Ann. § 36-1-113(g)(14)). With regard to substantial
harm, this Court has explained that
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., 2018 WL 1629930, at *7 (quoting Ray v. Ray, 83 S.W.3d 726, 732 (Tenn.
Ct. App. 2001) (footnotes omitted)).
In this case, there can be no dispute that Father lacks the ability to assume custody
or financial responsibility for the child, as Father will not be released from jail for at least
nine months.6 There is also ample evidence that Father has failed to manifest the
willingness to assume custody and financial responsibility for the child. Cf. In re Jaxx
M., No. E2018-01041-COA-R3-PT, 2019 WL 1753054, at *8 (Tenn. Ct. App. Apr. 17,
2019) (citing In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at
*12 (Tenn. Ct. App. June 20, 2018); In re Ayden S., No. M2017-01185-COA-R3-PT,
2018 WL 2447044, at *7 (Tenn. Ct. App. May 31, 2018)) (recognizing a dispute over
what proof is required to meet this ground for termination, but avoiding the dispute by
noting that the proof was sufficient under even the more stringent ground). Here,
following the child’s birth Father has chosen to repeatedly engage in conduct that has
resulted in his incarceration, removing him from this child’s life. Indeed, of the child’s
nineteen months, Father was a part of her life for only one of those months. Moreover,
Father has refused to maintain any contact with DCS regarding his daughter, fearing that
to do so would place his liberty in jeopardy. Indeed, even when the child’s DCS case
worker testified that Father once texted about obtaining pictures of the child, Father
denied that he made even this modicum of effort because contacting DCS was “a way to
get caught.” Thus, Father has not been willing to place the needs of his child ahead of his
desire to escape justice.
6
This release would be early and is contingent on Father completing a drug program.
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Father has also done little to show that he is ready to resume custody upon his
release. Although Father testified that he had a house and cars, when asked what Father
planned to do upon his release to ensure that his drug problem did not continue to ruin his
life, Father had no concrete plan other than prayer and hope. As the trial court aptly
concluded, “[t]he combination of long term substance abuse, inability to comport his
behavior to the law, and his inability to even handle his own important matters,
demonstrate his failure to manifest an ability to assume custody of [the child].”
The evidence also clearly and convincingly supports the trial court’s finding that
placing the child in Father’s “legal and physical custody would pose a risk of substantial
harm to the physical or psychological welfare of the child.” Tenn. Code Ann. § 36-1-
113(g)(14). Here, Father and the child are essentially total strangers; the child was
removed from Father’s care at the tender age of one month old, and Father has
completely refused to make any effort to contact the child in the months following the
removal. In a similar situation, this court affirmed a finding of substantial harm on the
basis that removal from the child’s current family and placing the child with a near-
stranger of a parent would cause the child emotional harm. State v. C.H.H., No. E2001-
02107-COA-R3-CV, 2002 WL 1021668, at *9 (Tenn. Ct. App. May 21, 2002).
Moreover, little in the record suggests that Father has made meaningful progress in
addressing his drug issues or the fact that he continues to engage in criminal activity.
Father could not detail any concrete steps he had taken to prepare to parent his child.
Thus, placing the child in Father’s care would likely result in future removal and
upheaval. Cf. In re Morgan K., No. M2018-00040-COA-R3-PT, 2018 WL 5733291, at
*13 (Tenn. Ct. App. Oct. 31, 2018) (affirming this ground on the basis that the parent’s
“permanent stability is tenuous” and the parent had taken “essentially no steps to prepare
himself to be able to support and care for a toddler”). As such, the trial court’s finding
that clear and convincing evidence was presented to terminate Father’s parental rights
under section 36-1-113(g)(14) is affirmed.
B. Best Interest
Having determined that at least one ground for termination is supported by clear
and convincing evidence, we proceed to consider whether clear and convincing evidence
supports the trial court’s determination that termination of Father’s parental rights is in
the child’s best interests. “Upon establishment of a ground for termination, the interests
of the child and parent diverge, and the court’s focus shifts to consider the child’s best
interest.” In re Audrey S., 182 S.W.3d 838, 877 (Tenn. Ct. App. 2005). Even where a
parent is unfit, termination may not necessarily be in the best interests of the child. Id.
Tennessee’s termination statute lists the following factors to be used in the best
interest analysis:
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(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
(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.
Tenn. Code Ann. § 36-1-113(i).
The Tennessee Supreme Court has explained that:
Facts considered in the best interests analysis must be proven by a
preponderance of the evidence, not by clear and convincing evidence. 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
interests. When considering these statutory factors, courts must remember
that the child’s best interests are viewed from the child’s, rather than the
parent’s, perspective. Indeed, a focus on the perspective of the child is the
common theme evident in all of the statutory factors. When the best
interests of the child and those of the adults are in conflict, such conflict
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shall always be resolved to favor the rights and the best interests of the
child.
In re Gabriella D., 531 S.W.3d 662, 68182 (Tenn. 2017) (internal citations omitted).
Furthermore, “[a]scertaining a child’s best interests does not call for a rote examination”
of the statutory factors. In re Audrey S., 182 S.W.3d at 878. The analysis requires “more
than tallying the number of statutory factors weighing in favor of or against termination.”
In re Gabriella D., 531 S.W.3d at 682 (citing White v. Moody, 171 S.W.3d 187, 19394
(Tenn. Ct. App. 2004)). “The facts and circumstances of each unique case dictate how
weighty and relevant each statutory factor is in the context of the case,” and the analysis
“must remain a factually intensive undertaking.” In re Gabriella D., 531 S.W.3d at 682.
Thus, “[d]epending upon the circumstances of a particular child and a particular parent,
the consideration of one factor may very well dictate the outcome of the analysis.” Id.
(citing In re Audrey S., 182 S.W.3d at 878). In undertaking this analysis, the court must
examine all of the statutory factors, as well as other relevant proof put forth by the
parties. Id.
As to the first two factors, Father argues that he has made a lasting adjustment of
circumstances to make it safe and in the child’s best interest to be in his home. See Tenn.
Code Ann. § 36-1-113(i)(1) & (2). Respectfully, we cannot agree. Although Father did
testify that he is participating in a drug program while incarcerated, he has yet to
complete this program. Moreover, nothing in the record shows that Father has made any
real progress leaving his life of crime. The only plan that Father could articulate for
maintaining a drug-free lifestyle was based on prayer and hope, rather than concrete
steps.
Father takes issue with DCS’s failure to provide reasonable efforts to Father. The
evidence shows, however, that Father generally avoided contact with DCS. Simply put,
DCS cannot provide services to a parent that admits he purposefully avoided any contact
with the agency. Indeed, while Father excused his failure to contact DCS while not
incarcerated as a way to avoid future incarceration, Father offered no excuse for his
failure to reach out during the many months that he was incarcerated. Simply put, Father
has not shown that he has adjusted his me-first attitude in a way that makes returning the
child to his care safe and in her best interest. These factors favor termination.
The evidence further shows that due to the removal of the child at such a young
age and Father’s refusal and/or inability to maintain visitation with the child, the child
has no relationship with Father, meaningful or otherwise. Tenn. Code Ann. § 36-1-
113(i)(3) & (4). Father attempts to minimize the evidence supporting these factors by
pointing to evidence that he tried to seek photographs of the child while she was in DCS
custody. This argument, however, ignores that Father outright denied that he would have
taken such action, as maintaining contact with DCS could put him at risk of capture for
his outstanding crimes. These factors strongly support termination.
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The child is bonded to her foster family, where her sibling also resides. In contrast,
Father is a stranger to the child. Although no proof was specifically presented that a
change in caretakers would be harmful to the child, common sense dictates that removing
a child from the only family she has ever known and placing her with a stranger who has
historically chosen to put his own desires ahead of the child’s needs would cause harm to
the child. Tenn. Code Ann. § 36-1-113(i)(4); see also Dattel Family Ltd. P’ship v. Wintz,
250 S.W.3d 883, 892 (Tenn. Ct. App. 2007) (“This Court . . . is not required to check
common sense at the courthouse door.”). Again, this factor weighs heavily in favor
termination.
Father does not address the remaining factors contained in section 36-1-113(i).
Although there is no evidence that Father has shown brutality, abuse, or neglect toward
the child or other members of the household, see Tenn. Code Ann. § 36-1-113(i)(6),
Father’s admitted issues with illegal drugs and his failure to articulate a concrete plan for
remaining sober following his incarceration leave this Court with substantial doubt that
Father will be able to maintain sobriety and avoid criminal conduct in the future. See
Tenn. Code Ann. § 36-1-113(i)(7). Other than Father’s drug issues, there was no
evidence that Father’s mental or emotional state would be harmful to the child. Tenn.
Code Ann. § 36-1-113(i)(8). There was also no evidence at trial as to whether Father paid
support. Tenn. Code Ann. § 36-1-113(i)(9).
On the whole, we conclude that the best interest factors clearly and convincingly
support termination of Father’s parental rights. Father has voluntarily chosen to engage in
activity that has made him a stranger to his child. His plan for the return of the child
gives this Court little confidence that he is ready and able to parent his daughter. Father
simply asks this Court to believe that although he chose to engage in repeated criminal
conduct for essentially the entirety of this child’s life, he has now turned the corner and is
able to parent his child when he is released from incarceration. Even if we were to credit
Father’s optimistic outlook, Father could not begin to parent his child for at least another
nine months. The child deserves permanence now with the family that has cared for the
child and her sibling for essentially the child’s entire life. The trial court’s finding that
termination is in the child’s best interest is therefore affirmed.
V. CONCLUSION
The judgment of the Wilson County Juvenile Court is affirmed and this matter is
remanded to the trial court for all further proceedings as are necessary and consistent with
this Opinion. Costs of this appeal are taxed to Appellant Michael M., for which execution
may issue, if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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