In Re Scarlet W.

01/15/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs December 2, 2020
IN RE SCARLET W. ET AL.
Appeal from the Chancery Court for Henderson County
No. 27426 James E. Butler, Chancellor
No. W2020-00999-COA-R3-PT
This is a termination of parental rights case. The Chancery Court for Henderson County
terminated the parental rights of a mother to two minor children based upon two statutory
grounds: persistence of conditions and a ten-year prison sentence while the children were
under the age of eight years old. We reverse the trial court’s finding that the ground of
persistence of conditions was satisfied by clear and convincing evidence. We affirm,
however, the trial court’s finding that clear and convincing evidence supports termination
of the mother’s parental rights based upon her current prison sentence. We also affirm the
trial court’s conclusion that termination is in the best interests of both children.
Tenn. R. App. P. 3 Appeal as of Right; Reversed in Part; Affirmed in Part; Case
Remanded
KRISTI M. DAVIS, J., delivered the opinion of the Court, in which FRANK G. CLEMENT, JR.,
P.J., M.S., and ARNOLD B. GOLDIN, J., joined.
Alexander D. Camp, Jackson, Tennessee, for the appellant, Diane W.
Herbert H. Slatery III, Attorney General and Reporter, and Amber L. Seymour, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
OPINION
Background
The children at issue in this case, Scarlet W. and Talis L. (together, “the children”),
were born to parents Diane W. (“Mother”) and David L. (“Father”) in 2011 and 2013,
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respectively. It is undisputed that Mother has not seen the children since 2014 and that
Father was caring for the children when the Department of Children’s Services (“DCS”)
first became involved with the family.
In April of 2016, DCS received a referral alleging that the children were neglected
and exposed to drugs in Father’s care. DCS contacted Father, and Father admitted to
abusing methamphetamine. Father also submitted to a drug screen which confirmed his
admission. DCS filed a petition for temporary legal custody of the children on May 31,
2016, in the Juvenile Court for Decatur County (“juvenile court”) in which DCS alleged
that the children were dependent and neglected in Father’s care and requested that the
children be placed in the temporary care of their paternal grandparents. With regard to
Mother, DCS alleged that her whereabouts were unknown and that Mother was not present
at the time of the children’s removal. That same day, the juvenile court entered a protective
custody order in which it found probable cause to believe that the children were dependent
and neglected, noting that Father had tested positive for methamphetamine and was
arrested for domestic assault against his girlfriend in April of 2016. The juvenile court also
noted that “[t]he whereabouts of the children’s mother, Diane [W.], are unknown[,]” and
that “[Mother] has reportedly been out of the children’s lives for approximately (2) years.”
Accordingly, the children were placed in the temporary custody of Father’s parents.
Later, DCS discovered that Mother had been arrested on April 4, 2016, and was in
jail facing a first-degree murder charge. Counsel for Mother appeared at the adjudication
hearing in the dependency and neglect action and stipulated, on Mother’s behalf, that the
children were dependent and neglected. Consequently, the juvenile court entered an order
affirming that the children were dependent and neglected and that temporary custody
should remain with the paternal grandparents. The case was then closed for a period of
time.
In December of 2017, DCS discovered that the paternal grandparents were allowing
Father to have unsupervised visitation with the children, despite the fact that Father was
not in compliance with his permanency plan and continued to abuse methamphetamine. A
new dependency and neglect action was initiated in the Henderson County Juvenile Court,1
and the children were removed from the custody of their grandparents and brought into the
custody of DCS on January 24, 2018. After another failed placement with different
relatives of Father, the children were eventually placed with CaSandra D. (“Foster
Mother”) and Jeff D. (“Foster Father”) (together, “Foster Parents”) in August of 2019.
Father surrendered his parental rights to both children in October of 2019.2
1
The family was living in Henderson County when the second dependency and neglect action was
initiated.
2
Father did not participate in the trial of this cause and is not a party to this appeal.
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In the meantime, Mother remained incarcerated throughout this case. On March 12,
2018, Mother pled guilty to voluntary manslaughter and was sentenced to fifteen years in
prison with a service rate of forty-five percent. DCS filed its petition to terminate Mother’s
parental rights as to both children on September 18, 2019, alleging two grounds for
termination: persistence of conditions pursuant to Tennessee Code Annotated section 36-
1-113(g)(3), and ten-year prison sentence while the children are younger than eight years
old pursuant to section 36-1-113(g)(6). Addressing persistence of conditions, DCS averred
that “[Mother] continues to lack the proper housing and financial resources to care for the
children because she remains incarcerated.” Further, DCS averred that the children were
in a pre-adoptive home and that termination would be in the children’s best interests.
A trial was held on May 21, 2020 at which Mother, the children’s DCS case worker
Vatreshia Cox (“Ms. Cox”), and Foster Mother all testified. Overall, Ms. Cox’s and Foster
Mother’s testimony reflected that the children were happy and doing well with Foster
Parents and had even expressed the desire to be adopted. Foster Mother testified that both
children were involved in various sports and that Scarlet enjoyed dance classes. Foster
Mother and Ms. Cox also testified regarding the extended family of the Foster Parents,
noting that the children had bonded to Foster Parents’ relatives and had nicknames for all
of their grandparents. Additionally, Foster Mother testified that the family had recently
adopted another child, a fourteen-month-old baby named Finley, to whom the children had
become very attached. Foster Mother described Scarlet as behaving as a “mother hen”
towards Finley and testified that the children considered Finley their baby sister.
Regarding Mother, Ms. Cox and Foster Mother both indicated that the children rarely if
ever ask about her, although Foster Mother acknowledged that Mother had sent Scarlet a
birthday card. Ms. Cox testified that she had no concerns regarding the children in the
Foster Parents’ care and that she believed termination of Mother’s parental rights was in
both children’s best interests.
Mother also testified at trial. While Mother acknowledged her fifteen-year prison
sentence, she maintained that she would be eligible for parole possibly in 2021 and
expressed her desire to have a relationship with the children and to assume custody after
her release. Mother asserted that since her incarceration began, she had made several
requests that she be able to have contact with the children, but that Ms. Cox essentially
refused to accommodate her. Mother and Ms. Cox both testified that Ms. Cox had visited
Mother twice since DCS opened its case; however, Mother maintained that at each visit
Ms. Cox pressured Mother to surrender her rights and that both times Mother refused. Ms.
Cox agreed that she visited Mother twice, and the record reflects that Mother was given
the Criteria and Procedures for Termination at both visits and signed the Criteria both
times.
Although Mother maintained at trial that she wished to regain custody of the
children if released on parole, Mother admitted that she would likely have to live in a half-
way house for a period of time after her release, which would make it difficult to provide
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for the children. Importantly, Mother also admitted that she had not seen the children since
2014, at which time Talis was approximately one year old. However, Mother blamed
Father for her absence from the children’s lives and testified that Father kept the children
from her and would move sporadically in order to keep Mother from seeing them.
Ultimately, Mother’s testimony reflected that although she had not seen the children in
several years by the time of trial, she still desired to have a relationship with them and did
not believe that termination was in the children’s best interests. According to Mother, “a
six-month attachment [to Foster Parents] would not override a mother’s love.”
After the close of proof, the trial court ruled that DCS had proven both grounds for
termination by clear and convincing evidence. The trial court also found, by clear and
convincing evidence, that termination was in both children’s best interests. The trial court
entered a written order on June 25, 2020, reflecting its ruling, and Mother filed a timely
notice of appeal to this Court.
Issues
Mother’s sole issue on appeal is whether the trial court erred in concluding that DCS
proved both of the alleged statutory grounds for termination by clear and convincing
evidence.3
Standard of Review
Our Supreme Court has 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.
3
We also review whether the trial court erred in concluding that termination was in the best interests
of the children. See In re Carrington H., 483 S.W.3d 507, 525–26 (Tenn. 2016) (“[I]n 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.”) (footnote omitted).
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In re Carrington H., 483 S.W.3d at 522–23. Tennessee Code Annotated section 36-1-113
provides the various grounds for termination of parental rights. In re Jacobe M.J., 434
S.W.3d 565, 568 (Tenn. Ct. App. 2013); see also Tenn. Code Ann. § 36-1-113(g). “A party
seeking to terminate parental rights must prove both the existence of one of the statutory
grounds for termination and that termination is in the child’s best interest.” Id. (citing
Tenn. Code Ann. § 36-1-113(c)).
In light of the substantial interests at stake in termination proceedings, the
heightened standard of clear and convincing evidence applies. In re Carrington H., 483
S.W.3d at 522 (citing Santosky, 455 U.S. at 769). This heightened burden “minimizes the
risk of erroneous governmental interference with fundamental parental rights[,]” and
“enables the fact-finder to form a firm belief or conviction regarding the truth of the
facts[.]” Id. (citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010)). “The clear-and-
convincing-evidence standard ensures that the facts are established as highly probable,
rather than as simply more probable than not.” Id. (citing In re Audrey S., 182 S.W.3d 838,
861 (Tenn. Ct. App. 2005)). Accordingly, the standard of review in termination of parental
rights cases is as follows:
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 at 523–24.
Discussion
I. Grounds for Termination
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Here, the trial court found that DCS proved two grounds for termination by clear
and convincing evidence: persistence of conditions and Mother’s ten-year prison sentence
while the children were under the age of eight years old. We address each ground in turn.
A. Persistence of Conditions
Tennessee Code Annotated section 36-1-113(g)(3)(A) provides that a person’s
parental rights can be terminated when:
The child has been removed from the home or the physical or legal custody
of a parent or guardian for a period of six (6) months by a court order entered
at any stage of proceedings in which a petition has been filed in the juvenile
court alleging that a child is a dependent and neglected child, and:
(i) The conditions that led to the child’s removal still persist,
preventing the child’s safe return to the care of the parent or guardian,
or other conditions exist that, in all reasonable probability, would
cause the child to be subjected to further abuse or neglect, preventing
the child’s safe return to the care of the parent or guardian;
(ii) There is little likelihood that these conditions will be remedied at
an early date so that the child can be safely returned to the parent or
guardian in the near future; and
(iii) The continuation of the parent or guardian and child relationship
greatly diminishes the child’s chances of early integration into a safe,
stable, and permanent home.
The purpose of the persistence of conditions ground “is to prevent the child’s
lingering in the uncertain status of foster child if a parent cannot within a reasonable time
demonstrate an ability to provide a safe and caring environment for the child.” In re
Navada N., 498 S.W.3d 579, 605 (Tenn. Ct. App. 2016). Consequently, “[t]he failure to
remedy the conditions which led to the removal need not be willful.” Id. (citing In re T.S.
and M.S., No. M1999-01286-COA-R3-CV, 2000 WL 964775, at *6 (Tenn. Ct. App. July
13, 2000)). This ground for termination applies “only where the prior court order removing
the child from the parent’s home was based on a judicial finding of dependency, neglect,
or abuse.” In re Audrey S., 182 S.W.3d at 874; see also In re Veronica T., No. M2017-
00726-COA-R3-PT, 2018 WL 1410909, at *4 (Tenn. Ct. App. Mar. 21, 2018) (“An
essential prerequisite to establishing persistence of conditions is evidence of a ‘prior court
order removing the child from the parent’s home . . . based on a judicial finding of
dependency, neglect or abuse.’” (quoting In re Aiden R., No. E2015-01799-COA-R3-PT,
2016 WL 3564313, at *9 (Tenn. Ct. App. June 23, 2016))).
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Importantly, “the child must not only have been adjudicated dependent and
neglected, but he or she must also have been removed from the defendant parent’s home.”
In re Veronica T., 2018 WL 1410909, at *4 (citing In re Mickia J., No. E2016-00046-
COA-R3-PT, 2016 WL 5210794, at *5 (Tenn. Ct. App. Sept. 19, 2016)); see also In re
Miracle M., No. W2017-00068-COA-R3-PT, 2017 WL 3836020, at *8 (Tenn. Ct. App.
Aug. 30, 2017) (“[T]he statutory ground of persistence of conditions is not applicable . . .
as the record contains no evidence to suggest that the [c]hildren were residing in [f]ather’s
home at the time of their removal.”). To that point, we have also previously held that “the
pertinent question in a termination proceeding based upon the statutory ground of
persistence of conditions is whether [the parent] has continued to neglect the [c]hild” after
the child has been removed from the parent’s custody. In re Emilie A.M., No. E2011-
02416-COA-R3-PT, 2012 WL 4053040, at *6 (Tenn. Ct. App. Sept. 17, 2012) (citing State
v. C.H.K., 154 S.W.3d 586, 593 (Tenn. Ct. App. 2004)); see also In re Audrey S., 182
S.W.3d at 873 (explaining that the purpose behind the persistence of conditions ground is
to prevent children from languishing in foster care when a parent makes minimal efforts
towards reunification).
Here, the basis of DCS’s case as to persistence of conditions was that Mother
remained incarcerated and as such could not provide for the children; indeed, the sole
allegation in the petition for termination regarding this ground provides that “[Mother]
continues to lack the proper housing and financial resources to care for the children because
she remains incarcerated.” The trial court made the following pertinent findings regarding
this ground:
[Mother] is currently incarcerated in the West Tennessee State
Penitentiary on a fifteen (15) year sentence for Voluntary Manslaughter, a
Class C Felony. . . . The children have lingered in foster-care for over two
(2) years. During those two years, [Mother] made no efforts to remedy the
conditions that led to the children’s removal. Furthermore, there are other
conditions that exist, in that [Mother] remains incarcerated under a fifteen
(15) year sentence. She does not have suitable housing to raise her children,
since the children cannot live in a prison cell. Further, other conditions exist
in that [Mother] is not able to financially provide for the basic needs of her
children. The Court found that other conditions exist in that [Mother] is in
prison for having killed someone and that condition still exists (persists).
Further, the Court found that just the possibility and not the probability of
parole indicates that that the condition still exists. The Court found that the
Department had proven this ground by clear and convincing evidence.
It is clear that both DCS and the trial court treated Mother’s incarceration itself as
the persistent condition preventing the children’s return to Mother’s custody. However, as
we explained in State v. C.H.K., 154 S.W.3d at 592, the mere fact of a parent’s incarceration
is not grounds for termination of parental rights except under particular circumstances. In
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C.H.K., the child at issue was removed from the mother’s care after DCS discovered that
the mother was leaving the child unattended in a motel room. Id. at 588. Soon after the
child was removed, the mother pled guilty to various criminal charges and was
incarcerated. Id. DCS filed a petition to terminate the mother’s parental rights, and the
trial court found several grounds for termination, including persistence of conditions. Id.
at 589. As to that ground, the trial court found that the mother was unavailable to care for
the child as a consequence of her incarceration and that this condition still existed by the
time of trial. Id. at 592. On appeal, this Court considered whether Mother’s incarceration,
standing alone, amounted to a persistent condition preventing the child’s return to mother’s
custody, and concluded that it did not. Id. In so holding, we explained that “the legislature
did not intend that the incarceration of a parent constitutes a condition which would cause
the child to be subject to abuse or neglect except under specified circumstances.” Id. We
noted that with regard to persistence of conditions, the pertinent question is whether the
mother continued to neglect the child, and explained that because the mother had been
incarcerated she had “not been presented with an opportunity to care for [the child] and it
is not possible that she ha[d] demonstrated an intention to neglect him.” Id. We further
explained:
Tenn. Code Ann. § 36-1-113(g)(3)(A) also provides that termination may be
based upon the existence of “other conditions which in all probability would
cause the child to be subjected to further abuse or neglect and which,
therefore, prevent the child’s safe return to the care of the parent.” However,
it is our determination that the legislature did not intend that the incarceration
of a parent constitutes a condition which would cause the child to be subject
to abuse or neglect except under specified circumstances. We are compelled
to reach this conclusion because Tenn. Code Ann. § 36-1-113(g)(6) allows
initiation of parental termination if “[t]he parent has been confined in a
correctional or detention facility of any type, by order of the court as a result
of a criminal act, under a sentence of ten (10) or more years, and the child is
under eight (8) years of age at the time the sentence is entered by the court.”
Id. Consequently, the C.H.K. court reversed the trial court’s finding that the
mother’s parental rights should be terminated based on persistence of conditions. Id. We
have since reiterated the holding of C.H.K. See In re Chandler M., No. M2013-02455-
COA-R3-PT, 2014 WL 3586499 (Tenn. Ct. App. July 21, 2014); In re Emilie A.M., 2012
WL 4053040.
The facts of In re Chandler M. are analogous to the present case. In that case, the
father at issue was incarcerated when his child was removed from the mother’s custody,
and father did not know at that time that he was the child’s father. Id. at *1. At some point
after the child had been removed from his mother’s care, the father of the child pled guilty
to several criminal offenses and received an effective sentence of twelve years in prison.
Id. DCS eventually filed a petition to terminate father’s parental rights, alleging several
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grounds for termination, including persistence of conditions. Id. at *2. The trial court
terminated the father’s rights and he appealed, arguing that his parental rights could not be
terminated based on this ground when he was never afforded the opportunity to parent the
child. Id. at *5. We agreed with the father, explaining as follows:
[T]he [c]hild was removed based upon a finding of dependency and
neglect relative to [m]other. Father had not even been identified as a potential
putative father at the time of removal or when the [c]hild was subsequently
adjudicated as dependent and neglected. While it can be argued that the
[c]hild was also removed because [f]ather was unavailable to care for the
[c]hild due to his incarceration, the pertinent question in a termination
proceeding based upon the statutory ground of persistence of conditions is
whether [f]ather has continued to neglect the [c]hild. State v. C.H.K., 154
S.W.3d 586, 592 (Tenn. Ct. App. 2004). Father has not had an opportunity
to properly care for the [c]hild or continue in his alleged neglect of the [c]hild
because he has been incarcerated since he learned of his
paternity. Id. Additionally, [f]ather’s incarceration, standing alone, cannot
support this ground of termination as an “other condition” when the
legislature has already provided for termination due to a parent’s
incarceration pursuant to section 36-1-113(g)(6). Id. Accordingly, we
conclude that the trial court erred in relying on section 36-1-113(g)(3) as a
statutory ground for termination. We reverse the trial court’s finding that
termination of [f]ather’s parental rights was appropriate based upon the
alleged persistence of conditions that led to removal.
Id.In re Chandler M. is applicable here. The children were removed because of
dependency and neglect arising from Father’s drug abuse. Mother’s whereabouts were
unknown at the time of removal, and it is undisputed that the children had not been in her
care or custody for approximately two years. Mother’s incarceration was not the basis of
the children’s removal, nor is there any evidence that the children were living in Mother’s
household at the time of removal. See In re Veronica T., 2018 WL 1410909, at *4
(explaining that for persistence of conditions to apply, “the child must not only have been
adjudicated dependent and neglected, but he or she must also have been removed from the
defendant parent’s home”).
While it could be argued that the children were also removed because Mother was
entirely unavailable to care for the Children and had in fact abandoned them, this was not
what DCS pled in its termination petition, nor was this the basis of the trial court’s finding
as to the persistence of conditions ground. Rather, the petition alleged simply that Mother
could not care for the children as a consequence of her incarceration, and the trial court’s
order reiterates this statement. As we have explained, however, Mother did not cause the
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conditions underpinning the children’s removal to DCS custody, and “[Mother’s]
incarceration, standing alone, cannot support this ground of termination as an ‘other
condition’ when the legislature has already provided for termination due to a parent’s
incarceration pursuant to section 36-1-113(g)(6).” Id.; Tenn. Code Ann. § 36-1-113(g)(3).
Ultimately, the salient issue here is whether Mother continued to neglect the children. In
re Chandler M., 2014 WL 3586499, at *5 (citing State v. C.H.K., 154 S.W.3d at 592).
However, there is no proof of Mother’s continued neglect after the children’s removal into
DCS custody because she was incarcerated before that event occurred.4
Accordingly, we conclude that the trial court erred in relying on section 36-1-
113(g)(3) as a basis for termination of Mother’s parental rights, and we reverse the trial
court’s finding that termination of Mother’s parental rights was appropriate based upon the
alleged persistence of conditions that led to removal.
B. Ten-Year Sentence
Turning to the second ground alleged for termination, Tennessee Code Annotated
section 36-1-113(g)(6) provides that grounds for termination exist when “[t]he parent has
been confined in a correctional or detention facility of any type, by order of the court as a
result of a criminal act, under a sentence of ten (10) or more years, and the child is under
eight (8) years of age at the time the sentence is entered by the court[.]” Only two findings
are necessary relative to this statutory ground: (1) that the parent has been confined to a
correction or detention facility of any type, by order of the court as a result of a criminal
act, under a sentence of ten or more years, and (2) that the child at issue was under eight
years of age at the time the sentence was entered by the court. In re Jamazin H., No.
W2013-01986-COA-R3-PT, 2014 WL 2442548, at *4 (Tenn. Ct. App. May 28, 2014)
(citing In re E.M.P., No. E2006-00446-COA-R3-PT, 2006 WL 2191250, at *6 (Tenn. Ct.
App. Aug. 3, 2006)). Establishing this ground for termination is not a “difficult task
because the parent either is or is not serving a prison sentence of at least ten years, and the
child either was or was not eight years old when the sentence was imposed.” Id. (quoting
In re T.M.G., 283 S.W.3d 318, 325 n.4 (Tenn. Ct. App. 2008)). In this sense, “the
4
This case should not be confused with cases in which a parent’s established pattern of recidivism
is treated as a persistent condition, when the parent has had the opportunity to work towards reunification
with the child after the child’s removal, but instead the parent is reincarcerated or continues to engage in
criminal activity. See, e.g., In re Kambri P., No. M2019-01352-COA-R3-PT, 2020 WL 2991793 (Tenn.
Ct. App. June 4, 2020) (both parents’ rights terminated for persistence of conditions when history of
criminal activity and incarcerations rendered the parents consistently unable to provide a stable, suitable
home for children); In re A.B., No. E2016-00504-COA-R3-PT, 2017 WL 111291, at *7 (Tenn. Ct. App.
Jan. 11, 2017) (“The conditions leading to the removal of the [c]hildren are [m]other’s drug abuse and
criminal activity. . . . Mother has [] incurred new legal charges. It is clear [m]other’s drug abuse and criminal
activity continue.”); In re Jaylah W., 486 S.W.3d 537, 556 (Tenn. Ct. App. 2015) (affirming termination of
mother’s parental rights when children were removed due to mother’s “pattern of drug and alcohol abuse,
violent and threatening behavior, and criminal activity[,]” and those conditions persisted at the time of
trial).
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legislature has established a ‘bright line’ ground for termination of parental rights” in
enacting section 36-1-113(g)(6). In re Adoption of K.B.H., 206 S.W.3d 80, 85 (Tenn. Ct.
App. 2006)).5
Mother does not dispute on appeal that DCS satisfied section 36-1-113(g)(6) by
clear and convincing evidence. Mother was sentenced to fifteen years in prison on March
12, 2018. At that time, the children were five and six years old, respectively.
Consequently, the two elements of section 36-1-113(g)(6) are satisfied here, and we affirm
the trial court’s decision that Mother’s parental rights should be terminated pursuant to this
statutory ground.
II. Best Interests
In addition to proving at least one statutory ground for termination, a party seeking
to terminate a parent’s rights must prove by clear and convincing evidence that termination
is in the child’s best interests. Tenn. Code Ann. § 36-1-113(c). Indeed, “a finding of
unfitness does not necessarily require that the parent’s rights be terminated.” In re Marr,
194 S.W.3d 490, 498 (Tenn. Ct. App. 2005) (citing White v. Moody, 171 S.W.3d 187(Tenn. Ct. App. 2004)). Rather, our termination statutes recognize that “not all parental
conduct is irredeemable[,]” and that “terminating an unfit parent’s parental rights is not
always in the child’s best interests.” Id. As such, the focus of the best interests analysis is
not the parent but rather the child. Id.; see also White, 171 S.W.3d at 194 (“[A] child’s
best interest must be viewed from the child’s, rather than the parent’s, perspective.”).
Tennessee Code Annotated section 36-1-113(i) provides nine factors for analyzing
best interests:
(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;
It is also well-established that a parent’s eligibility for parole does not affect whether section 36-
5
1-113(g)(6) is satisfied. See In re Jamazin H., 2014 WL 2442548, at *11 n.6 (“This ground for termination
applies regardless of the possibility of early parole[.]”); In re Adoption of K.B.H., 206 S.W.3d at 85 (“At
the time [section 36-1-113(g)(6)] was enacted, the legislature was certainly aware of parole and other means
by which a prisoner could end up released from his or her incarceration prior to expiration of the full
sentence, and did not include such circumstances in the language of the statute.”).
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(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.
This list is non-exhaustive. In re Marr, 194 S.W.3d at 499. “Ascertaining a child’s best
interests does not call for a rote examination of each of Tenn. Code Ann. § 36-1-113(i)’s
nine factors and then a determination of whether the sum of the factors tips in favor of or
against the parent.” Id. “The relevancy and weight to be given each factor depends on the
unique facts of each case.” Id. “Thus, depending upon the circumstances of a particular
child and a particular parent, the consideration of one factor may very well dictate the
outcome of the analysis.” Id. (citing In re Audrey S., 182 S.W.3d at 877).
The trial court in this case found that termination of Mother’s parental rights was in
the best interests of both children. Having reviewed the record and applicable case law,
we agree. Mother asserts that the trial court erred in its best interests analysis, arguing that
the trial court failed to appropriately consider all nine of the statutory factors. In support,
Mother points out that the trial court’s analysis focuses heavily on Mother’s incarceration
and the fact that the children are currently in a stable, pre-adoptive home. Mother’s
argument is unavailing. The trial court’s order contains a detailed best interests analysis
and reflects that it considered other factors aside from Mother’s incarceration and the
children’s current placement. For instance, the trial court addressed the fact that Mother
has essentially no relationship with either child and has not seen or spoken to the children
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in several years. The trial court also pointed out, to Mother’s credit, that there has never
been any allegation that the children have been abused.
Further, it is well-settled that the best interests analysis is highly fact sensitive and
that depending upon the particular circumstances of case, one or more factors may be
outcome determinative. In re Audrey S., 182 S.W.3d at 877. Under the particular
circumstances of this case, we agree with the trial court that Mother’s lengthy prison
sentence and the children’s placement in a stable, pre-adoptive home are the factors that
militate most heavily in favor of termination. See Tenn. Code Ann. § 36-1-113(i)(5) & (7).
It is not uncommon for a parent’s lengthy prison sentence to be considered compelling in
the best interests portion of a termination proceeding, because a long sentence necessarily
leads to the parent’s prolonged absence from the child’s every-day life. See, e.g., In re
Dominique L.H., 393 S.W.3d 710, 718 (Tenn. Ct. App. 2012) (“In addition to the problems
associated with the criminal activity itself, incarceration poses a further hurdle: the
continued absence of a parent from the child’s life. . . . [A] lengthy delay in a child’s return
to the custody of its biological parent is a strong indication that termination of parental
rights is in the best interest of the child.”); In re C.A.M., No. W2008-02003-COA-R3-PT,
2009 WL 3739447, at *7 (Tenn. Ct. App. Nov. 9, 2009) (despite undisputed evidence that
incarcerated father at issue loved his child, the factors nevertheless weighed “heavily in
favor of termination” because the father “has no home to offer [the child], [ ] will probably
remain incarcerated for the foreseeable future, and his prospects for establishing such a
home after he is released are uncertain at best”); In re M.H., No. M2005-00117-COA-R3-
PT, 2005 WL 3273073, at *13 (Tenn. Ct. App. Dec. 2, 2005) (“This 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.”). Nor is it unusual
to give significant weight to the factors regarding a child’s current foster placement when
the child is thriving. See, e.g., In re Haskel S., No. M2019-02256-COA-R3-PT, 2020 WL
6780265, at *13 (Tenn. Ct. App. Nov. 18, 2020) (ultimately concluding that termination of
father’s rights was in child’s best interest when child was in stable, pre-adoptive home and
called foster parents “mom” and “dad”); In re M.E.T., No. W2016-00682-COA-R3-PT,
2016 WL 6962306, at *10 (Tenn. Ct. App. Nov. 29, 2016) (noting that the factor regarding
the child’s current placement was “compelling” in that case because of the length of time
the child had been with his foster family and his profound bond with them).
Here, we agree with the trial court that Mother’s lengthy prison sentence and the
success of the children’s current placement militate heavily in favor of termination. See
Tenn. Code Ann. § 36-1-113(i)(5) & (7). We also agree with the trial court’s overall
conclusion that Mother’s current situation, unfortunately, makes it impossible for Mother
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to meaningfully adjust her circumstances, provide a safe and suitable home for the children,
or support the children financially. See Tenn. Code Ann. § 36-1-113(i)(1), (7), (9).6
In addition to the foregoing factors, we also find it compelling that Mother had not
seen the children for two years prior to DCS removing them from Father’s custody. See
id. § 36-1-113(i)(3) & (4). Simply put, the record is bereft of any actions on Mother’s part
to be a parent to the children, or any indication that a relationship, much less a meaningful
relationship, exists between them. The evidence at trial reflected that the children are
thriving in the care of Foster Parents and wish to be adopted. The children refer to the
Foster Parents as “Mom” and “Dad,” and consider Foster Parents’ adopted baby their
younger sibling. Although Mother contended at trial that she loves the children and wishes
to provide for them after her release from prison, Mother’s wishes are not a basis for
determining the children’s best interests, and the record reflects that the children do not,
sadly, reciprocate Mother’s feelings. See In re M.B., No. M2007-02755-COA-R3-PT,
2008 WL 2229518, at *8 (Tenn. Ct. App. May 29, 2008) (“[O]nce a ground for termination
has been established, [the parent’s] wishes are not the basis for determining [a child’s] best
interest.”). Taken together with the fact that the children are bonded to their foster family
and wish to be adopted, the lack of a meaningful relationship between Mother and the
children weighs heavily in favor of termination in this case. See Tenn. Code Ann. § 36-1-
11(i)(3)–(5).
Contrary to Mother’s assertions, the trial court made detailed findings in
consideration of the statutory best interests factors. Upon our careful review of the record,
the evidence does not preponderate against the relevant findings. We find, as did the trial
court, the evidence to be clear and convincing that termination of Mother’s parental rights
is in the children’s best interests.
Conclusion
The judgment of the Henderson County Chancery Court is reversed in part, and
affirmed in part, resulting in our affirming the termination of Mother’s parental rights. This
cause is remanded to the trial court for collections of costs below. Costs on appeal are
assessed against Mother, Diane W., for which execution may issue if necessary.
KRISTI M. DAVIS, JUDGE
6
We do note, however, that the record shows Mother has been working during her incarceration
and on a few occasions has sent very small amounts of money for the children. We commend Mother for
this effort.
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