In Re Jase P.

06/21/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 1, 2017
IN RE JASE P.
Appeal from the Juvenile Court for Knox County
No. 158400 Timothy E. Irwin, Judge
No. E2016-02519-COA-R3-PT
This appeal arises from the termination of a father’s parental rights. The Tennessee
Department of Children’s Services (“DCS”) filed a petition against Anthony G.
(“Father”) in the Juvenile Court for Knox County (“the Juvenile Court”) seeking to
terminate Father’s parental rights to his son, Jase P. (“the Child”). Father had been
incarcerated and unable to parent the Child since the Child’s birth. After a trial, the
Juvenile Court terminated Father’s parental rights on the grounds of wanton disregard
and various grounds coming under the putative father statute at Tenn. Code Ann. § 36-1-
113(g)(9)(A). Father appeals. We affirm all grounds for termination found against
Father. We further affirm that termination of Father’s parental rights is in the Child’s
best interest. We, therefore, affirm the judgment of the Juvenile Court in its entirety.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed;
Case Remanded
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D.
BENNETT and KENNY W. ARMSTRONG, JJ., joined.
Gregory E. Bennett, Seymour, Tennessee, for the appellant, Anthony G.
Herbert H. Slatery, III, Attorney General and Reporter, and, Brian A. Pierce, Assistant
Attorney General, for the appellee, the Tennessee Department of Children’s Services.
OPINION
Background
The Child was born out of wedlock in December 2015 and soon thereafter entered
DCS custody. The Child’s mother (“Mother”) later surrendered her parental rights to the
Child. The Child’s birth certificate did not identify a father. However, two males were
suspected of being the Child’s father. In March or April of 2016, DNA testing revealed
that Father was the Child’s biological father. In April 2016, DCS filed its petition in the
Juvenile Court seeking to terminate the incarcerated Father’s parental rights to the Child.
Trial was held in November 2016. Father and the Child’s Foster Mother testified.
Father testified first. Father and Mother had dated from 2008 through November
2014. During this time, Father used pain pills and methamphetamine with Mother. After
Father and Mother broke up, Mother became involved with a new boyfriend.
Nevertheless, Father and Mother continued to have sexual relations. Sometime around
May 2015, Father learned that Mother was pregnant. Mother told Father that while she
was not sure he was the father, it was a possibility. Father took Mother to a drug clinic so
she could begin treatment for drug abuse. Father paid $400 for Mother’s treatment. In
June 2015, Father, who already had a lengthy history of criminal behavior, incurred more
charges. Father was arrested on a variety of drug-related charges on which he later pled
guilty. Father also pled guilty to a federal gun possession charge. Father was sentenced
altogether to six years in prison arising from the June 2015 incident. Father stated that he
is working while in custody which allows him to earn two days credit for each day
served. Father did not file a petition to establish his paternity of the Child. Father has
been incarcerated for the entire life of the Child. Indeed, Father has never met the Child.
Father testified that his mother was a possible kinship placement for the Child. However,
Father’s mother never has been granted custody.
Foster Mother testified. Foster Mother testified to the severe drug exposure-
related health problems the Child suffered from. The Child suffered from neonatal
abstinence syndrome. The Child experienced tremors, fever, and eating problems, among
other things. While the Child’s condition has improved, the Child still requires
significant medical attention. According to Foster Mother, the Child has bonded well
with her new family. Foster Mother intends to adopt the Child if permitted.
In December 2016, the Juvenile Court entered its final judgment terminating
Father’s parental rights to the Child. The Juvenile Court, applying the standard of clear
and convincing evidence, found the following grounds against Father: 1) wanton
disregard; 2) failure to manifest an ability and willingness to assume legal and physical
custody of the child; 3) failure to establish paternity; and 4) risk of substantial harm to the
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physical or psychological welfare of the child. The Juvenile Court found also by clear
and convincing evidence that termination of Father’s parental rights is in the Child’s best
interest. We quote from the Juvenile Court’s detailed final judgment as pertinent:
1. This child was removed from his mother’s custody due to her
substance abuse. The child’s urine drug screen at birth was positive for
benzodiazepines and his meconium was positive for amphetamines,
methamphetamines, benzodiazepines, Subutex, and marijuana. The child’s
mother admitted being addicted to opiates and using Suboxone and Subutex
intravenously and without the benefit of a prescription to curb her cravings
for opiates. The baby was moved to the NICU where he was treated with
morphine until December 23, 2015, to mitigate withdrawal symptoms of
Neonatal Abstinence Syndrome.
2. Respondent was in jail when his son was born. His criminal
history as an adult began in 2008 when he was convicted for “going armed”
and served ten days in jail. In January 2009 he was convicted on the charge
of aggravated criminal trespass after going into a home with the intent to
take something, although he then changed his mind. A few months later he
did 48 hours in jail for driving under the influence. In August 2009 he was
charged theft of property and aggravated burglary in Anderson County,
Tennessee. While he was out awaiting trial on those charges, he was
charged with sale and delivery of schedule II drugs (“pills”) in Monroe
County, Tennessee. Those charges were all resolved in March 2011 with
an effective sentence of six years imprisonment. Respondent had served
160 days in jail and was released on probation. He was arrested again
about three months later after failing a drug screen and had to spend ninety
days in jail. He was then released back to probation.
3. Respondent and the child’s mother were in an “on-and-off”
relationship for eight or nine years, ending in November 2014. They lived
together in hotel rooms, apartments, and with Respondent’s mother. They
used drugs together. According to Respondent, the mother would run off
and then come back; sometimes she stayed with a cousin, then she would
be back with Respondent. They used pain pills and methamphetamine
together; when they were together, they got high together. Respondent
never sold methamphetamine but he did sell marijuana and roxycodone
(pain pills). He quit pills in 2012 after going to rehab but resumed using
marijuana and methamphetamine. In November 2014, when Respondent
and the mother were last living together, they were using marijuana and
methamphetamine together. He testified that his longest period of sobriety
was about three months in 2013. He was not getting high all the time; he
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was on probation and knew he had to be able to pass drug screens or he
would go back to jail.
4. After they “broke up” in November 2014, the child’s mother
moved out. She had a new boyfriend and was living with him but
continued to come by occasionally and had sex with Respondent. In early
May 2015 the mother contacted Respondent and told him she was pregnant
and that he might be the father of her baby; she wasn’t sure. Respondent
saw her one time after that. She talked with him about her dependence on
opiates and her fear that her drug use would be bad for the baby. She told
him she needed help. Respondent drove her to Express Health Care in
Harriman, Tennessee, and gave her at least $400 cash to pay for Subutex
treatment.
5. About three weeks later, on June 5, 2015, Respondent was
arrested in Anderson County, Tennessee, on charges of felony possession
of a firearm, possession of marijuana for resale, possession of
methamphetamine, possession of drug paraphernalia, possession of
Schedule IV narcotics, and violation of a drug-free school zone; he was
also held for violation of probation. He had been found with drugs and a
gun and he had been using. He has been incarcerated continuously since
then. On December 1, 2015, a federal grand jury returned an indictment
charging Respondent with being a felon in possession of a firearm and
ammunition. On March 22, 2016, Respondent entered a guilty plea to that
charge and, on September 6, 2016, he was sentenced in federal court to 60
months of imprisonment followed by three years of supervised release. On
October 18, 2016, he entered guilty pleas in Anderson County, Tennessee,
to the charges of possession of marijuana for resale, possession of
marijuana, possession of methamphetamine, and violation of probation. He
received an effective sentence revoking his probation and requiring that he
serve his previous six year sentence. The state and federal sentences are
running concurrently. Since his arrest in June 2015, Respondent has been
held in the Anderson County jail, and in the custody of the U.S. Marshal in
jails in Irwin County, Georgia and Blount County, Tennessee, moving from
one to another depending upon appearance dates.
6. By the time he was arrested in June 2015, Respondent was aware
of the mother’s pregnancy and of the possibility that he might be the father.
The child was born in December 2015 and entered foster care before being
discharged from the hospital. On February 1, 2016, the child’s case
manager met with Respondent in the Blount County Jail. They reviewed
the child’s permanency plan and the Criteria & Procedures for Termination
of Parental Rights. Respondent signed the Criteria and kept a copy. He
admitted that he knew about the child because the mother had told him
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when she found out she was pregnant. At that point he had done nothing to
establish paternity or to determine parentage. In March or April 2016 he
learned from his mother that DNA testing had confirmed that he was the
child’s father. He still did nothing to establish paternity. He told this Court
that he had “a lot going on in the last 17 months”, had been moved from jail
to jail, and was not sure of the location of his box of paperwork and
personal possessions.
7. Upon those facts, the Court finds that Respondent was
incarcerated when this petition was filed and that prior to this incarceration,
Respondent engaged in conduct which exhibits a wanton disregard for the
welfare of the child. He knew the mother was pregnant. He knew he could
be the father of her child. This Court believes that Respondent’s use of his
own money (at least $400) to pay for the mother’s Subutex treatment
demonstrates that he had a strong suspicion that he was the father. He
nevertheless got himself into more trouble. He continued to use drugs and
committed additional crimes. Respondent’s own actions taken while he
knew the mother was pregnant and knew the child was possibly his ensured
that he would be sent back to prison. His continued destructive behavior
demonstrated indifference and a wanton disregard for his own welfare
much less that of the child.
8. The Court further finds that Respondent failed to file a petition to
legitimate the child within thirty (30) days after notice of alleged paternity;
that he failed to manifest an ability and willingness to assume legal and
physical custody of the child; and that awarding legal and physical custody
of the child to Respondent would pose a risk of substantial harm to the
physical or psychological welfare of the child. He did nothing, not when he
suspected the child was his, not when he knew for sure the child was his.
Even incarcerated, he could have done something. He was able to write a
letter. He knew that failure to take action could result in termination of any
parental rights he might have. He just put all his eggs in one basket, relying
on his mother to petition for custody. That petition was dismissed. Due to
his own actions, Respondent is not in a position to assume physical custody
of this child. He knows nothing of the child’s heightened physical and
psychological needs secondary to his in utero drug exposure. Awarding
legal and physical custody of this child to Respondent would not only be
cruel but would subject the child to great risk.
9. The Court received no proof as to the allegation that Respondent
committed severe abuse against this child and that allegation with [sic]
withdrawn.
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III
1. Respondent has not made such an adjustment of circumstance,
conduct, or conditions as to make it safe and in the child’s best interest to
be in his home. He is in prison, he has no home. He did receive
“reasonable efforts by available social services agencies” to effect an
“adjustment” in his conduct. Probation made efforts to rehabilitate him and
he violated. Due to his own conduct he has not been able to maintain
regular visitation or other contact with the child and no relationship at all
has otherwise been established between Respondent and the child.
Respondent has never seen his son. A change of caretakers and physical
environment is likely to have a detrimental effect on the child’s emotional,
psychological and medical condition. Such a change from the only family
he has ever known would destroy this child emotionally and
psychologically and would have a terrible effect on his medical condition.
This child was severely abused by his mother’s drug abuse during her
pregnancy and he has suffered for it. Respondent has shown neglect
toward this child by his indifference toward the child’s welfare while
committing his criminal acts. He is without a healthy and safe physical
environment for the child. Prior to his current incarceration, he engaged in
criminal activity and in such use of alcohol or controlled substances as may
render Respondent consistently unable to care for the child in a safe and
stable manner. And, due to his incarceration, Respondent has not paid
child support.
2. The child’s mother has surrendered her parental rights.
3. The Department of Children’s Services has made reasonable
efforts toward achieving permanency for this child.
4. The child is entitled to a safe, secure and loving home. He was
diagnosed with neonatal abstinence syndrome at birth due to his mother’s
drug use. He is followed by multiple specialists including a neonatal
specialist, a gasteroenterologist, a pediatric physiatrist, Tennessee Early
Intervention Services, occupational and physical therapists, and his primary
care physician and has required several emergency room visits. During his
first seven months he had over 100 medical and therapy appointments. He
is not on target developmentally. His foster mother described his brain as
“different”, in “fight or flight” mode a lot of the time that interferes with his
ability to learn. He gets over-stimulated and overwhelmed easily and acts
with aggression and impulsivity. He is allergic to lactose and soy, requires
an iron supplement to address anemia, and is monitored for a hernia. He is
nevertheless loved and cherished in a kinship foster home where he has the
chance to achieve permanency through adoption. That adoption will also
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allow him the opportunity to maintain contact with his biological
grandfather and his older half-brother, now in the grandfather’s custody.
This child deserves to grow up knowing where he will lay his head at night.
5. It is, therefore, in the best interest of [the Child] and the public
that all of Respondent’s parental rights to this child be terminated and the
complete custody, control, and full guardianship of the child be awarded to
the State of Tennessee, Department of Children’s Services, with the right to
place him for adoption and to consent to such adoption in loco parentis.
Father timely appealed to this Court.
Discussion
We restate the issues Father raises on appeal as follows: 1) whether the Juvenile
Court erred in finding the ground of failure to manifest an ability and willingness to
assume legal custody of the Child; 2) whether the Juvenile Court erred in finding the
ground of failure to establish paternity of the Child; 3) whether the Juvenile Court erred
in finding the ground of risk of substantial harm to the physical or psychological welfare
of the Child; 4) whether the Juvenile Court erred in finding the ground of wanton
disregard; and, 5) whether the Juvenile Court erred in finding that termination of Father’s
parental rights is in the Child’s best interest.
As our Supreme Court has instructed regarding the standard of review in parental
termination cases:
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.1 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
1
U.S. Const. amend. XIV § 1 (“[N]or shall any State deprive any person of life, liberty, or property,
without due process of law . . . .”). Similarly, article 1, section 8 of the Tennessee Constitution states
“[t]hat no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or
outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the
judgment of his peers or the law of the land.”
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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. “When the State initiates a parental rights termination
proceeding, it seeks not merely to infringe that fundamental liberty interest,
but to end it.” Santosky, 455 U.S. at 759, 102 S. Ct. 1388. “Few
consequences of judicial action are so grave as the severance of natural
family ties.” Id. at 787, 102 S. Ct. 1388; see also M.L.B. v. S.L.J., 519 U.S.
102, 119, 117 S. Ct. 555, 136 L. Ed. 2d 473 (1996). The parental rights at
stake are “far more precious than any property right.” Santosky, 455 U.S.
at 758-59, 102 S. Ct. 1388. 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(I)(1); see also Santosky, 455
U.S. at 759, 102 S. Ct. 1388 (recognizing that a decision terminating
parental rights is “final and irrevocable”). In light of the interests and
consequences at stake, parents are constitutionally entitled to
“fundamentally fair procedures” in termination proceedings. Santosky, 455
U.S. at 754, 102 S. Ct. 1388; see also Lassiter v. Dep’t of Soc. Servs. of
Durham Cnty., N.C., 452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d 640
(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, 102 S. Ct. 1388. 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).
Tennessee statutes governing parental termination proceedings
incorporate this constitutionally mandated standard of proof. Tennessee
Code Annotated section 36-1-113(c) provides:
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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.
This statute requires the State to establish by clear and convincing proof
that at least one of the enumerated statutory grounds2 for termination exists
and that termination is in the child’s best interests. In re Angela E., 303
S.W.3d at 250; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “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 at 254. Although several factors relevant to the best interests
analysis are statutorily enumerated,3 the list is illustrative, not exclusive.
The parties are free to offer proof of other relevant factors. In re Audrey S.,
182 S.W.3d at 878. The trial court must then determine whether the
combined weight of the facts “amount[s] to clear and convincing evidence
that termination is in the child’s best interest.” In re Kaliyah S., 455
S.W.3d 533, 555 (Tenn. 2015). These requirements ensure that each parent
receives the constitutionally required “individualized determination that a
parent is either unfit or will cause substantial harm to his or her child before
the fundamental right to the care and custody of the child can be taken
away.” In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999).
Furthermore, other statutes impose certain requirements upon trial
courts hearing termination petitions. A trial court must “ensure that the
hearing on the petition takes place within six (6) months of the date that the
petition is filed, unless the court determines an extension is in the best
interests of the child.” Tenn. Code Ann. § 36-1-113(k). A trial court must
“enter an order that makes specific findings of fact and conclusions of law
within thirty (30) days of the conclusion of the hearing.” Id. This portion
of the statute requires a trial court to make “findings of fact and conclusions
of law as to whether clear and convincing evidence establishes the
2
Tenn. Code Ann. § 36-1-113(g)(1)-(13).
3
Tenn. Code Ann. § 36-1-113(i).
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existence of each of the grounds asserted for terminating [parental] rights.”
In re Angela E., 303 S.W.3d at 255. “Should the trial court conclude that
clear and convincing evidence of ground(s) for termination does exist, then
the trial court must also make a written finding whether clear and
convincing evidence establishes that termination of [parental] rights is in
the [child’s] best interests.” Id. If the trial court’s best interests analysis “is
based on additional factual findings besides the ones made in conjunction
with the grounds for termination, the trial court must also include these
findings in the written order.” Id. Appellate courts “may not conduct de
novo review of the termination decision in the absence of such findings.”
Id. (citing Adoption Place, Inc. v. Doe, 273 S.W.3d 142, 151 & n.15 (Tenn.
Ct. App. 2007)).
B. Standards of Appellate Review
An appellate court reviews a trial court’s findings of fact in
termination proceedings using the standard of review in Tenn. R. App. P.
13(d). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at
246. Under Rule 13(d), appellate courts review factual findings de novo on
the record and accord these findings a presumption of correctness unless
the evidence preponderates otherwise. In re Bernard T., 319 S.W.3d at
596; 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). 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. 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 507, 521-24 (Tenn. 2016) (footnotes in original but
renumbered).
Clear and convincing evidence supporting any single ground will justify a
termination order. E.g., In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Our Supreme
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Court, however, has instructed “that in an appeal from an order terminating parental
rights the Court of Appeals must review the trial court’s findings as to each ground for
termination and as to whether termination is in the child’s best interests, regardless of
whether the parent challenges these findings on appeal.” In re Carrington H., 483
S.W.3d at 525-26 (footnote omitted). As such, we review each of the grounds for
termination.
Tenn. Code Ann. § 36-1-113 provides concerning the ground of abandonment:
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following grounds
are cumulative and non-exclusive, so that listing conditions, acts or
omissions in one ground does not prevent them from coming within another
ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
occurred;
Tenn. Code Ann. § 36-1-113(g)(1) (Supp. 2016).
In pertinent part, Tenn. Code Ann. § 36-1-102(1)(A) provides:
(1)(A) For purposes of terminating the parental or guardian rights of
a parent or parents or a guardian or guardians of a child to that child in
order to make that child available for adoption, “abandonment” means that:
***
(iv) A parent or guardian is incarcerated at the time of the institution
of an action or proceeding to declare a child to be an abandoned child, or
the parent or guardian has been incarcerated during all or part of the four
(4) months immediately preceding the institution of such action or
proceeding, and either has willfully failed to visit or has willfully failed to
support or has willfully failed to make reasonable payments toward the
support of the child for four (4) consecutive months immediately preceding
such parent’s or guardian’s incarceration, or the parent or guardian has
engaged in conduct prior to incarceration that exhibits a wanton disregard
for the welfare of the child; or . . . .
Tenn. Code Ann. § 36-1-102(1)(A)(iv) (2014).
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Regarding the putative father grounds, the statute provided at the time of the filing
of the petition to terminate Father’s parental rights:
(9)(A) The parental rights of any person who, at the time of the filing of a
petition to terminate the parental rights of such person, or if no such
petition is filed, at the time of the filing of a petition to adopt a child, is the
putative father of the child may also be terminated based upon any one (1)
or more of the following additional grounds:
(i) The person has failed, without good cause or excuse, to pay a reasonable
share of prenatal, natal, and postnatal expenses involving the birth of the
child in accordance with the person’s financial means promptly upon the
person’s receipt of notice of the child’s impending birth;
(ii) The person has failed, without good cause or excuse, to make
reasonable and consistent payments for the support of the child in
accordance with the child support guidelines promulgated by the
department pursuant to § 36-5-101;
(iii) The person has failed to seek reasonable visitation with the child, and if
visitation has been granted, has failed to visit altogether, or has engaged in
only token visitation, as defined in § 36-1-102(1)(C);
(iv) The person has failed to manifest an ability and willingness to assume
legal and physical custody of the child;
(v) Placing custody of 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; or
(vi) The person has failed to file a petition to establish paternity of the child
within thirty (30) days after notice of alleged paternity by the child’s
mother, or as required in § 36-2-318(j), or after making a claim of paternity
pursuant to § 36-1-117(c)(3);
Tenn. Code Ann. § 36-1-113(g)(9)(A) (2014 & Supp. 2016).
Father raises issues of whether the Juvenile Court erred in finding certain of the
putative father grounds against him. However, we first must consider whether these
grounds even apply to Father. Under Tennessee Supreme Court precedent in the case of
In re Bernard T., 319 S.W.3d 586 (Tenn. 2010), putative biological fathers are not liable
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to having their parental rights terminated on the grounds provided for in Tenn. Code Ann.
§ 36-1-113(g)(9)(A). Our Supreme Court stated: “The grounds for termination in Tenn.
Code Ann. § 36-1-113(g)(9) cannot be used to terminate the rights of a person who is a
child’s biological parent, legal parent, or putative biological father at the time the
termination petition is filed.” Id. at 599. DCS states in its brief that “Father was a
‘putative father’ [and] . . . the biological father of the child and, at the time of the filing of
the petition to terminate his parental rights, he had acknowledged his paternity to DCS
through DNA testing. Tenn. Code Ann. § 36-1-102(43); § 36-1-117(c)(3).” DCS also
cites evidence in the record that Father at one point entered into a permanency plan.
Therefore, under In re Bernard T., Father is in the category of persons who are not liable
to having their parental rights terminated under Tenn. Code Ann. § 36-1-113(g)(9).
That, however, does not end the inquiry, because on March 23, 2016, our General
Assembly amended the statutes pertaining to putative fathers. See 2016 Pub. Acts, c.
636, eff. March 23, 2016. Tenn. Code Ann. § 36-1-102(43) (Supp. 2016) defines a
putative father as a “biological or alleged biological father who, at the time of the filing
of a petition to terminate the parental rights of such person . . . meets at least one (1) of
the criteria set out in § 36-1-117(c) and is not a legal parent.” Father appears to fit the
bill as a putative father under this definition. Moreover, as amended, Tenn. Code Ann. §
36-1-113(g)(9)(A) explicitly applies to “the putative father of the child.”
We are confronted with In re Bernard T., which never has been overturned
judicially, and the March 2016 legislative amendments, which reasonably can be
construed as removing the statutory basis for the In re Bernard T. ruling. In the recent
case of In re E.C., No. E2016-02582-COA-R3-PT, 2017 WL 2438574, at *6 (Tenn. Ct.
App. June 6, 2017), no appl. perm. appeal filed as of this Opinion, this Court stated that
while “there was some question regarding whether these additional grounds [under Tenn.
Code Ann. § 36-1-113(g)(9)(A)] were applicable to putative fathers [given In re Bernard
T.] . . . the legislature amended the wording of the statute to explicitly state that these
additional grounds applied to ‘the putative father of the child.’ ” We proceeded to find
the grounds applicable to a father who in December 2015 was confirmed by DNA testing
to be the child’s biological parent, and a petition seeking to terminate this father’s
parental rights was filed in June 2016. Id. at *2. On the other hand, in the also very
recent case of In re Candice H., No. M2016-02305-COA-R3-PT, 2017 WL 2365008, at
*11 n. 6 (Tenn. Ct. App. May 31, 2017), no appl. perm. appeal filed as of this Opinion,
we accepted DCS’s concession that In re Bernard T. was binding precedent and that the
father in that case was a putative biological father not liable to having his parental rights
terminated by Tenn. Code Ann. § 36-1-113(g)(9)(A) in keeping with the holding of In re
Bernard T. We therefore reversed the putative father ground for termination, which at
any rate was cumulative in that case, of failure to establish paternity. Id. Our research
reflects that over the years, this Court has not been entirely consistent in our application
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of Tenn. Code Ann. § 36-1-113(g)(9)(A), whether before or after the March 2016
legislative amendments. We, respectfully, suggest that our Supreme Court accept the
opportunity, if a Rule 11 application is filed, to address this matter of exactly when the
grounds found at Tenn. Code Ann. § 36-1-113(g)(9)(A) as amended may be applied. In
the meantime, we will give effect to the legislative amendments. Father is a putative
father for purposes of Tenn. Code Ann. § 36-1-113(g)(9)(A).
The first putative father ground we address is whether the Juvenile Court erred in
finding the ground of failure to manifest an ability and willingness to assume legal
custody of the Child. Father argues on appeal that because he has been incarcerated
continuously since June 5, 2015, and DCS has had custody of the Child, he has never had
any meaningful opportunity to assume legal custody of the Child. As relevant, the
Juvenile Court found:
[Father] did nothing, not when he suspected the child was his, not when he
knew for sure the child was his. Even incarcerated, he could have done
something. He was able to write a letter. He knew that failure to take
action could result in termination of any parental rights he might have. He
just put all his eggs in one basket, relying on his mother to petition for
custody. That petition was dismissed.
The evidence does not preponderate against the Juvenile Court’s findings relative
to this issue. We find, as did the Juvenile Court, that the ground of failure to manifest an
ability to assume legal and physical custody of the Child is proven by clear and
convincing evidence.
We next address whether the Juvenile Court erred in finding the ground of failure
to establish paternity of the Child. Father argues that he did not truly know for sure he
was the Child’s father until the DNA test results came in, and that, in any case, DCS
could establish Father’s paternity more readily than Father. We refer to the findings of
the Juvenile Court that “[Father] did nothing, not when he suspected the child was his,
not when he knew for sure the child was his.” We find, as did the Juvenile Court, that the
ground of failure to establish paternity of the Child is proven by clear and convincing
evidence.
We next address whether the Juvenile Court erred in finding the ground of risk of
substantial harm to the physical or psychological welfare of the Child. Father argues that
the record is completely silent as to whether the Child would incur any psychological
harm should he be placed with Father. Father argues also that he could learn how to care
for the Child just as well as the foster family does. The Juvenile Court found, as
pertinent: “Due to his own actions, Respondent is not in a position to assume physical
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custody of this child. He knows nothing of the child’s heightened physical and
psychological needs secondary to his in utero drug exposure. Awarding legal and
physical custody of this child to Respondent would not only be cruel but would subject
the child to great risk.” The evidence does not preponderate against these findings made
by the Juvenile Court relative to this issue. We find, as did the Juvenile Court, that the
ground of risk of substantial harm to the physical or psychological welfare of the Child
has been proven by clear and convincing evidence.
We next address whether the Juvenile Court erred in finding the ground of wanton
disregard. Under In re Bernard T., where any grounds under Tenn. Code Ann. § 36-1-
113(g)(9)(A) are applicable, grounds from Section 36-1-113(g)(1) through Section 36-1-
113(g)(8) are inapplicable. This holding, of course, was before the recent legislative
amendments to the statutes. In In re E.C., we acknowledged that “no court has yet
considered whether the 2016 amendment affected this part of the holding in In re
Bernard T.” In re E.C., 2017 WL 2438574, at *10. In In re E.C. we went on to conclude
that we did not have to consider the issue since we found that the ground of wanton
disregard was not proven by clear and convincing evidence. Id. This issue is another on
which our Supreme Court could provide clarity. In the present case, as we discuss further
below, we affirm all of the grounds found for termination, and so even if we err with
respect to finding wanton disregard applicable, the outcome is the same.
Father became aware of Mother’s pregnancy only three weeks before the June
2015 incident that led to his incarceration. Father argues on appeal regarding the June
2015 incident that “this single event in and of itself is not sufficient conduct to
demonstrate wanton disregard by clear and convincing evidence.”
Wanton disregard has no precise definition. However, as this Court has stated:
“We have repeatedly held that probation violations, repeated incarceration, criminal
behavior, substance abuse, and the failure to provide adequate support or supervision for
a child can, alone or in combination, constitute conduct that exhibits a wanton disregard
for the welfare of a child.” In re Audrey S., 182 S.W.3d 838, 867-68 (Tenn. Ct. App.
2005). Further, in In re Chandler M., M2013-02455-COA-R3-PT, 2014 WL 3586499, at
*4 (Tenn. Ct. App. July 21, 2014), rule 11 appl. perm. appeal dismissed Sept. 29, 2014,
we concluded that a father need not know with 100% certainty that he is the child’s father
for his actions to potentially constitute wanton disregard for the child’s welfare, only that
he had sex with the child’s mother and he knew she became pregnant. We are mindful
that in the present case, the pre-incarceration conduct of Father’s cited by the Juvenile
Court comprised a single incident. Nevertheless, certain conduct may be of such
magnitude that it constitutes wanton disregard for the welfare of a child even if it is a
single incident. Father knew in May 2015 that Mother was pregnant and that he might
well be the father. In fact, Father even paid for Mother to begin drug treatment. Despite
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this knowledge, Father proceeded to incur a number of drug charges and a federal gun
possession charge, the result being that he is incarcerated and unable to provide for the
welfare of the Child. Father also violated probation for a previous charge. In committing
his slew of crimes in the June 2015 incident, Father demonstrated wanton disregard for
the Child’s welfare. We find and hold, as did the Juvenile Court, that the ground of
wanton disregard has been proven by clear and convincing evidence.
The final issue we address is whether the Juvenile Court erred in finding that
termination of Father’s parental rights is in the Child’s best interest. The evidence does
not preponderate against the Juvenile Court’s detailed best interest findings, made in
accordance with Tenn. Code Ann. § 36-1-113(i). The Child does not even know Father.
The Child has suffered terribly from drug exposure-related ailments and requires special
care. Father is in absolutely no position to provide said care. The evidence is that the
Child has bonded well with the Foster family and is on the mend after a troubled start in
life. We find and hold, as did the Juvenile Court, that the evidence is clear and
convincing that termination of Father’s parental rights is in the Child’s best interest. In
summary, we affirm the judgment of the Juvenile Court in its entirety.
Conclusion
The judgment of the Juvenile Court is affirmed, and this cause is remanded to the
Juvenile Court for collection of the costs below. The costs on appeal are assessed against
the Appellant, Anthony G., and his surety, if any.
____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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