In Re: Maddox C.

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs October 4, 2016
IN RE MADDOX C.
Appeal from the Chancery Court for Dickson County
No. 2014-CV-431 Suzanne Lockert-Mash, Judge
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No. M2016-01129-COA-R3-PT- Filed November 9, 2016
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This is a termination of parental rights case. Father/Appellant, who is incarcerated, appeals
the termination of his parental rights to the minor child. The trial court terminated Father’s
parental rights on two statutory grounds: (1) abandonment, and (2) incarceration for more
than ten years, see Tenn. Code Ann. §§ 36-1-113(g)(1) and (6), and on its finding that
termination of Father’s parental rights is in the child’s best interest. Discerning no error, we
affirm and remand.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed and Remanded
ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,
C.J., and W. NEAL MCBRAYER, J., joined.
Bradley Kyle Sanders, Dickson, Tennessee, for the appellant, Christopher H.
Travis Nathaniel Meeks, Clarksville, Tennessee, for the appellees, Brittnie B., and Brandon
B.
OPINION
I. Background
The minor child, Maddox C.,1 was born in July of 2009. The child’s mother, Brittnie
B., and the child’s father Christopher H. (“Father” or “Appellant”) were never married.
1
In cases involving minor children, it is the policy of this Court to redact the parties’ names so as to protect
their identities.
Brittnie B. and Christopher H.’s relationship ended in early 2011, and Brittnie B. married
Brandon B. (together with Brittnie B., “Appellees”) sometime in 2012. Appellees have one
child together, Jackson B., who was two years old at the time of the hearing. At all relevant
times, Maddox has lived with Appellees.
On September 19, 2012, the Dickson County Juvenile Court entered an order, which
was admitted as Trial Exhibit 4. The order established Appellant as Maddox’s biological
father and ordered Appellant to submit to random drug tests as ordered by the court.
Concurrent with its September 19, 2012 order, the juvenile court entered a permanent
parenting plan, which granted Appellant visitation with the child and ordered him to pay
$305 per month in child support.
On January 28, 2013, the juvenile court granted Brittnie B. a restraining order against
Father. The restraining order, which was admitted as Trial Exhibit 5, suspended Appellant’s
visitation. Thereafter, Brittnie B. moved the juvenile court to order hair follicle testing on
Father; this motion was heard on February 13, 2013. In its order of February 26, 2013, the
juvenile court noted that Father “announced to the court that he had in fact been arrested on a
new indictment and that he anticipated being arrested [for] violation of probation.” The
juvenile court found that the hair follicle test was unnecessary in light of Father’s pending
legal troubles, but ordered that the restraining order would “become permanent until further
order of the court.” On June 4, 2013, Father was incarcerated, where he remained during the
pendency of the petition to terminate his parental rights.
On December 11, 2014, Appellees filed a petition in the Chancery Court for Dickson
County (the “trial court”) to terminate Father’s parental rights and for Brandon B. to adopt
Maddox. As grounds for termination of Appellant’s parental rights, Appellees averred: (1)
abandonment pursuant to Tennessee Code Annotated Section 36-1-113(g)(1) as defined by
Tennessee Code Annotated Section 36-1-102(1)(A)(iv); and (2) Father’s being sentenced to
ten or more years of incarceration when Maddox was less than eight years old pursuant to
Tennessee Code Annotated Section 36-1-113(g)(6). On January 12, 2015, Appellees filed a
motion for the appointment of a guardian ad litem to represent Maddox.
On or about February 23, 2015, Appellant filed a handwritten document in the trial
court. The document, which is titled “Certificate of Service” states, in relevant part, that:
I’m [Father] writing because I have no way of getting a lawyer . . . . There is a
hearing scheduled [for] February 27, 2015. I’m not sure I will be brought to
the hearing. I would like to let the Court know I will never sign my parental
rights to . . . Brandon B[.]. I am the child’s biological father . . . . I would like
the Court to postpone this case, and appoint me a lawyer . . . .
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On March 16, 2015, the trial court entered an order, appointing an attorney to represent
Appellant and appointing a guardian ad litem for the child.
On September 22, 2015, Father filed a motion to dismiss the petition pursuant to
Tennessee Rules of Civil Procedure 12.02(4) and (5). In his motion, Father averred that there
was insufficient service of process because
the summons return in this case says, “Served to the IA office at the prison.”
Pursuant to TCA Section 41-21-301, “Process in a civil action against an
inmate in the penitentiary may be served by the proper officer, in the presence
of the warden or the assistant warden, and returned as in other cases.”
[Appellant] submits service of process was insufficient in this case, and that it
should be dismissed.
On September 28, 2015, Appellees filed a response in opposition to Father’s motion to
dismiss, wherein they noted that Father had “filed a pro se response to the petition on
February [23], asking for an appointed attorney and responding to the petition for adoption.”
As such, Appellees argued that Appellant “ha[d] already acknowledge[d] service of process
and waive[d] any issue that could be presented in a rule 12 motion.”
On January 5, 2016, Father filed an answer to Appellees’ petition, wherein he
reiterated the argument set out in his Rule 12 motion, supra. In addition to renewing his
insufficient service of process argument, Appellant denied the material allegations set out in
the petition and opposed termination of his parental rights and/or adoption by Brandon B.
On January 6, 2016, the trial court heard Appellant’s Rule 12 motion and the petition
for termination of parental rights. On March 16, 2016, the trial court entered a memorandum
opinion terminating Father’s parental rights on the grounds set out in the Appellees’ petition
and on its finding that termination of Father’s parental rights is in the child’s best interest.
On April 13, 2016, the trial court entered an order terminating Father’s parental rights; the
April 13, 2016 order incorporates the trial court’s March 16, 2016 memorandum opinion.
Father’s timely appeal followed.
II. Issues
Father raises four issues for review as stated in his brief:
1. Whether the trial court erred in denying Appellant’s motion to dismiss
pursuant to Tennessee Rules of Civil Procedure 12.02(4) and (5) due to
insufficient service of process?
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2. Whether clear and convincing evidence supports the trial court’s
determination that Appellant abandoned the minor child?
3. Whether clear and convincing evidence supports the trial court’s decision to
terminate Appellant’s parental rights based upon his incarceration of a
sentence of ten years or more and that the child was under eight years of age at
the time of the sentence?
4. Whether clear and convincing evidence supports the trial court’s
determination that termination of the parental rights of Appellant is in the best
interest of the minor child?
III. Standard of Review
Under both the United States and Tennessee Constitutions, a parent has a fundamental
right to the care, custody, and control of his or her child. Stanley v. Illinois, 405 U.S. 645,
651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174
(Tenn. 1996). Thus, the state may interfere with parental rights only when a compelling
interest exists. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S.
745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)). Our termination statutes identify “those
situations in which the 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 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)). A person 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.
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).
Because of the fundamental nature of the parent’s rights and the grave consequences
of the termination of those rights, courts must require a higher standard of proof in deciding
termination cases. Santosky, 455 U.S. at 769, 102 S. Ct. 1388. Accordingly, both the grounds
for termination and that termination of parental rights is in the child’s best interest must be
established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); 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 the evidence.” In re M.J.B., 140 S.W.3d 643, 653
(Tenn. Ct. App. 2004). Such evidence “produces in a fact-finder’s mind a firm belief or
conviction regarding the truth of the facts sought to be established.” Id. at 653.
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In light of the heightened standard of proof in termination of parental rights cases, a
reviewing court must modify the customary standard of review in Tennessee Rule of
Appellate Procedure 13(d). As to the trial court's findings of fact, our review is de novo with
a presumption of correctness unless the evidence preponderates otherwise. Tenn. R. App. P.
13(d). We must then determine whether the facts, as found by the trial court or as supported
by the preponderance of the evidence, clearly and convincingly establish the elements
necessary to terminate parental rights. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
IV. Analysis
A. Service of Process
Tennessee Code Annotated Section 41-21-301 provides that “[p]rocess in a civil
action against an inmate in the penitentiary may be served by the proper officer, in the
presence of the warden or the assistant warden, and returned as in other cases.” Relying on
this statute, Father filed a motion to dismiss this action based on alleged improper service of
process.
At the January 6, 2016 hearing on the petition to terminate his parental rights, Father
testified that he received the Appellees’ petition by going “up to the mail window and the
mail lady gave it to me.” When he was questioned as to whether the warden or assistance
warden was present at the time he received the petition, Father answered “No.” From
Father’s testimony and his filings in the trial court, we glean that his argument that process
was improperly served stems from the fact that he received a copy of Appellees’ petition by
picking it up at the mail window at the prison and that he was not served “in the presence of
the warded or assistant warden.” In ruling on Appellant’s motion to dismiss, the trial court’s
April 13, 2016 order states, in relevant part, that Father
admitted he received the Petition and that he responded in writing to this
Court. In his written response to the Court he requested that he be appointed
an attorney and that a hearing be held in the matter in which he could
participate. Therefore, the Court finds that service of process in this matter
was sufficient and therefore the [Appellant’s] motion is respectfully denied.
The response “in writing,” which is referenced in the trial court’s order, is the February 23,
2015 “Certificate of Service” document that Father filed. As correctly noted by Appellees in
their appellate brief, Father did not allege insufficient service of process in this initial filing.
The “Certificate of Service” document evinces three facts that negate Appellant’s insufficient
service of process argument. First, although not in the presence of the warden or assistant
warden, Father personally received the petition. Second, his responsive filing shows that
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Father had actual knowledge of the proceedings. Finally, his responsive filing failed to assert
insufficient service. “The filing of any pleading, making or resisting of any motion, . . . or
any other act in the cause, between the filing of the complaint and rendition of the final
decree, whereby pendency of the suit is recognized, expressly or by implication, will, if there
be record evidence of the fact, constitute a general and unlimited appearance, unless limited
by express declaration or by necessary implication.” Patterson v. Rockwell International,
665 S.W.2d 96, 99 (Tenn. 1984) (citing Akers v. Gillentine, 231 S.W.2d 372,376 (Tenn. Ct.
App. 1950), perm. app. denied (Tenn. March 31, 1950)).
Similar to the case at bar, in John V. L. v. Dep’t of Children’s Servs., No. W2011-
01397-COA-R3-JV, 2011 WL 5454319 (Tenn. Ct. App. Oct. 25, 2011), perm. app. denied
(Tenn. Feb. 15, 2012), appellant/father argued that “under Tennessee Code Annotated § 41-
21-301, service on [a]ppellant[/father] in the transfer facility in Texas was insufficient where
it was not in the presence of the warden or assistant warden.” In John V. L., this Court held,
in relevant part, that:
Appellant does not appear to have specifically pled insufficient service under
Tennessee Code Annotated § 41-21-301 in the pleadings filed in the juvenile
court. . . . Additionally, . . . the testimony of DCS’s attorney was that
Appellant was served by certified mail at a transfer facility in Abilene, Texas,
and that the bailiff at the facility had signed the return receipt.
Assuming that Appellant did not waive the affirmative defense of insufficiency
of process in the juvenile court, however, by failing to specifically assert
insufficiency pursuant to Tennessee Code Annotated § 41-21-301, it is
undisputed that DCS served Appellant by certified mail to the transfer facility
in Texas . . . [and] that Appellant had actual knowledge of the petition, an
opportunity to defend against it, and was represented by appointed counsel. . .
***
In this case, . . .we find nothing in the juvenile court record to indicate that he
specifically asserted insufficient service of process under Tennessee Code
Annotated 41-21-201. . . . DCS served Appellant with the . . . petition and
summons by certified mail, return receipt requested; a signed receipt was
returned; Appellant had actual knowledge of the proceedings; and Appellant
was zealously represented by counsel throughout the proceedings in the
juvenile and circuit courts. . . . Appellant’s argument in this Court. . . is that
service of process . . . was not procedurally sufficient where service was not
received by the warden or assistant warden, but by the bailiff. In light of the
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totality of the circumstances, any alleged procedural insufficiency was
remedied when the matter proceeded . . . in compliance with all procedural
requisites.
John V. L., 2011 WL 5454319, at *3-4. Likewise, in the instant case, Father did not assert
insufficient service of process in his initial filing with the trial court. Furthermore, he
acknowledged receipt of the Appellees’ petition and had the opportunity to defend against it.
Moreover, Father was represented by a court-appointed attorney during the termination of
parental rights proceedings. For all of these reasons, we conclude that “any alleged
procedural insufficiency was remedied when the matter proceeded . . . in compliance with all
procedural requisites.” Id at *4. Accordingly, the trial court did not err in denying Appellant
relief under Tennessee Rule of Civil Procedure 12.02(4) or (5).
B. Grounds for Termination of Parental Rights
As noted above, the trial court relied on two statutory grounds in terminating Father’s
parental rights: (1) abandonment; and (2) incarceration for more than ten years. See Tenn.
Code Ann. §§ 36-1-113(g)(1) and (6). Although only one ground for termination of parental
rights must be proven by clear and convincing evidence, Tenn. Code Ann. § 36-3-113(c)(1),
the Tennessee Supreme Court has instructed this Court to review every ground relied upon by
the trial court to terminate parental rights in order to prevent “unnecessary remands of cases.”
In re Angela E., 303 S.W.3d 240, 251 n.14 (Tenn. 2010). Accordingly, we will review both
of the foregoing grounds.
1. Abandonment
Tennessee Code Annotated Section 36-1-113(g)(1) provides that termination of
parental rights may be based on the ground of “[a]bandonment by the parent or guardian, as
defined in § 36-1-102. . . .” Tennessee Code Annotated Section 36-1-102(1)(A)(iv) defines
abandonment, in relevant part, as follows:
(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.
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Id. Failure to visit or support a child is “willful” when a person is aware of his or her duty to
visit or support, has the capacity to do so, makes no attempt to do so, and has no justifiable
excuse for not doing so. In re Audrey S., 182 S.W.3d 838, 864 (Tenn. Ct. App. 2005).
Willfulness depends upon the actor’s intent, and intent is seldom capable of direct proof. Id.
Therefore, the trier-of-fact must infer intent from the circumstantial evidence, including a
person’s actions or conduct. Id. “Whether a parent failed to visit or support their child is a
question of fact. Whether a parent’s failure to visit or support constitutes willful
abandonment, however, is a question of law.” In re Adoption of Angela E., 402 S.W.3d 636,
649 (Tenn. Ct. App. 2013) (citing In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn.
2007)).
Here, it is undisputed that Father was incarcerated on June 4, 2013. Appellees filed
their petition to terminate his parental rights on December 11, 2014. Concerning this ground
for termination of parental rights, in its April 13, 2016 order, the trial court made the
following, relevant findings:
The Court does find that there is clear and convincing evidence that
[Appellant] has willfully failed to pay support for four consecutive months
preceding his incarceration and was engaged in conduct prior to his
incarceration that exhibits a wonton disregard for the welfare of the child.
There was no proof that the [Appellant] sought drug rehabilitation as he
presented to the Juvenile Court Judge. Knowing that the [Appellant] was on
State probation, had pending criminal charges and was under a Court order to
not have contact with his son because of drug activity, the [Appellant] and co-
defendants put on masks, armed themselves with a gun and robbed a known
drug dealer. Therefore, the Court finds that the [Appellant] abandoned his son
based on his willful failure to pay support as well as his pre-incarceration
conduct of wonton disregard for the welfare of the child.
Concerning Father’s abandonment by willful failure to support the child, in its April
13, 2016 order, the trial court found that Father “paid child support until the end of 2012.”
Father’s testimony at the hearing supports the trial court’s finding:
Q [to Father]. When did you last provide monetary support for Maddox?
***
A. Since the last time I seen [sic] him and that’s it.
***
Q. End of 2012, beginning of 2013?
A. Yes.
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Q. That would be your last support payment.
A. Yes.
As set out above, by order of September 19, 2012, the juvenile court ordered Appellant to
pay $305 per month in child support. Father’s income on the parenting plan entered by the
juvenile court is listed at $1,386. Despite the fact that Father had income during the relevant
time period, i.e., four months prior to his incarceration, Brittnie B. testified that she and
Brandon B. have been responsible for Maddox’s support and that she “received maybe two
payments of child support when the visitation got set [by the juvenile court’s September 19,
2012 order].” This testimony corroborates Father’s testimony that he last paid child support
at the end of 2012. Based on the totality of the circumstances, we conclude that there is clear
and convincing evidence in the record to support the trial court’s finding that Father has
abandoned this child by willful failure to provide support during the four months
immediately preceding Father’s incarceration.
The trial court also found that Father abandoned the child based on his engagement
“in conduct prior to incarceration that exhibits a wanton disregard for the welfare of the
child.” Tenn. Code Ann. § 36-1-102(1)(A)(iv). This Court has held that “a parent’s decision
to engage in conduct that carries with it the risk of incarceration is itself indicative that the
parent may not be fit to care for the child.” In re Audrey S., 182 S.W.3d 838, 866 (Tenn. Ct.
App. 2005). However, incarceration alone is not enough to demonstrate a lack of parental
fitness; rather, it serves as a trigger mechanism allowing the court to look at the parent’s
pattern of conduct to determine if it renders the parent unfit or poses a substantial risk of
harm to the child. Id. This Court has “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.” Id. at 867-868. In this case, all of these
elements are present.
Turning to the record, Trial Exhibit 1 is Father’s cumulative arrest and indictment
record. On or about May 18, 2011, Father was charged with one count of felony possession
of marijuana with intent to sell. On April 25, 2012, Father pled guilty to that charge, and the
Dickson County Circuit Court sentenced him to two years probation. While on probation, on
August 16, 2012 and August 22, 2012, Father was charged with two additional felonies for
sale of marijuana. On August 22, 2012, he was also charged with misdemeanor simple
possession of a Schedule II drug. On May 16, 2013, he pled guilty to these offenses and was
sentenced to four additional years imprisonment (two additional two-year terms) for the
felony charges and eleven months and twenty-nine days for the misdemeanor charge; Father
was placed on four years community correction. On May 14, 2013, Father was charged with
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one count of felony aggravated robbery. The record indicates that Father and an accomplice
robbed a rival drug dealer at gunpoint. On April 14, 2014, Father pled guilty to the
aggravated robbery charge and was sentenced to an additional nine years imprisonment. The
nine year sentence was ordered to run consecutive to the previous sentences.
The foregoing evidence indicates that, since the child was approximately twenty-one
months old, Father has engaged in a pattern of criminal activity, which has culminated in a
prison sentence of approximately fifteen years. During his testimony, Father readily admitted
that he has made some bad choices and “plenty of mistakes” leading up to his current
incarceration. Specifically, he stated that following the proceedings in the juvenile court, see
discussion above, he “wasn’t selling drugs anymore or anything like that. I was actually
doing straight, you know, trying to do good. For a couple of months. I was doing all right or
whatever, trying to do good, and then all this happened.” Although Father testified that he
was “trying to do good,” he continued his testimony, stating, “I get with my buddies and we
ended up robbing a drug dealer.” Rather than taking full responsibility for his criminal
activity, Father attempted to excuse his behavior, stating, “I . . .didn’t think . . . that it was
something bad I was doing because I was robbing a drug dealer,” and “[I] [d]idn’t think [the
rival drug dealer] was going to call the police.”
Although Father adamantly stated that he would be released on parole in May of 2016,
the record indicates that his prison record is not exemplary. Father appeared before the trial
court with a cut on his face, which he explained had been sustained in a fight when “three
Crips come [sic] into my room and tried to rob me . . . and I fought them all three myself.” In
addition, Father admitted that he had received a write-up for “disrespect”. Father explained
that a correctional offer “slammed the door in my face . . .[a]nd I cussed him out over it.”
Based on the totality of the circumstances, and in light of Father’s cumulative record
of criminal offenses, we conclude that there is clear and convincing evidence in the record to
support the trial court’s finding that Father has engaged in a pattern of activity that “exhibits
a wanton disregard for the welfare of the child.” In re Audrey S., 182 S.W.3d at 867-68.
2. Incarceration
The trial court also relied on Tennessee Code Annotated Section 36-1-113(g)(6) in
terminating Appellant’s parental rights. This ground applies where:
The parent has been confined in a correctional or detention facility of any
type, by order of the court as a result of a criminal act, under a sentence of
ten (10) or more years, and the child is under eight (8) years of age at the
time the sentence is entered by the court.
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Tenn. Code Ann. § 36-1-113(g)(6).
Father’s criminal history is outlined above, and we will not reiterate it here. Clearly,
Father has been sentenced to more than ten-years of incarceration, and the sentence was
imposed when Maddox was approximately three years old. As stated by Father in his
testimony:
Q. And you are serving a 15-year sentence?
A. Yeah. 15 year sentence.
Q. And your son was 3 years old when you went into the penitentiary?
A. Yes.
From Father’s undisputed testimony and the record, we conclude that there is clear and
convincing evidence to support the trial court’s termination of Father’s parental rights under
Tennessee Code Annotated Section 36-1-113(g)(6).
C. Best Interest
When at least one ground for termination of parental rights has been established, the
petitioner must then prove, by clear and convincing evidence, that termination of the parent’s
rights is in the child’s best interest. White v. Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App.
1994). When a parent has been found to be unfit upon establishment of a ground for
termination of parental rights, then “the interests of parent and child diverge.” In re Audrey
S., 182 S.W.3d at 877. The focus shifts to the child’s best interest. Id. Because not all
parental conduct is irredeemable, “Tennessee’s termination of parental rights statutes
recognize the possibility that terminating an unfit parent’s parental rights is not always in the
child’s best interest.” Id. However, when the interests of the parent and the child conflict,
courts are to resolve the conflict in favor of the rights and best interest of the child. Tenn.
Code Ann. § 36-1-101(d). “The child’s best interest must be viewed from the child’s, rather
than the parent’s, perspective.” White, 171 S.W.3d at 194.
The Tennessee Legislature has codified nine factors courts should consider in
ascertaining the best interest of the child. Applicable factors in this case include, but are not
limited to:
(1) Whether the parent or guardian has made such an adjustment of
circumstance, conduct, or conduct, or conditions as to make it safe and in the
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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
. . . 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 conditions;
***
(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 . . . controlled substances . . . as may render the parent or
guardian consistently unable to care for the child in a safe and stable manner.
(9) Whether the parent or guardian has paid child support . . . .
Tenn. Code Ann. § 36-1-113(i)(1)-(9). This Court has noted that “this list [of factors] is not
exhaustive, and the statute does not require a trial court to find the existence of each
enumerated factor before it may conclude that terminating a parent’s rights is in the best
interest of a child.” In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Depending on
the circumstances of an individual case, the consideration of a single factor or other factors
outside the enumerated, statutory factors may dictate the outcome of the best interest
analysis. In re Audrey S., 182 S.W.3d at 877.
Concerning factors one and two, the trial court made the following, relevant findings
in its April 13, 2016 order:
The first and second factors address whether the parent has changed his
conduct to the extent that it would be safe and in the best interest of the child
to be back in the home. The father’s first criminal conviction occurred when
his child was approximately two years old. The Father was placed on
probation. His next conviction occurred when his child was nearly three years
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old. The Father again participated in criminal drug activity and was convicted
for another criminal offense when his child was nearly four years old.
Additionally, [Father] attempted to justify his behavior in this last criminal
incident by proclaiming that the victim was “Just a drug dealer.” The Court
has not seen any evidence that [Father] has changed his conduct to the extent
that it would be safe to place the child back in the home.
The record clearly and convincingly supports the trial court’s conclusion that Father has
failed to make such adjustment in his conduct as to make it safe for the child to be in his
custody.
Concerning factors three, four, and five, the trial court made the following, relevant
findings:
From the evidence it is clear to the Court that Father has had minimal contact
with his son. It appears that he had visitation with his son until December of
2012, or January of 2013, but due to his criminal activity, his visitation was
stopped by the Dickson County Juvenile Court. . . . Because of his continued
criminal lifestyle, he has not seen his son for over three years. It may be years
before he is released from prison. His son has no meaningful relationship with
him. The child is being cared for by the mother and stepfather[,] who has
formed a close bond with the child. To effect a change in the child’s
environment is likely to adversely affect the child’s wellbeing.
Both Brittnie B. and Father testified that, at the time of the hearing, Father had not seen the
child since early 2013. Appellees both testified that Maddox does not know Father and that
he considers Brandon B. to be his “daddy”. Furthermore, there is evidence that Maddox is
bonded with his half-brother, Jackson, and that Brandon B. makes no difference between the
two children. All evidence suggests that Brandon B. has been a father to Maddox in every
way. Given the child’s young age, the fact that he has not seen Father since 2013, and the
fact that he has known Brandon B. since he was approximately one year old, we conclude
that there is clear and convincing evidence that there is no meaningful relationship between
Maddox and Father and that a change in the child’s circumstances would likely have a
negative impact on the child’s emotional and psychological wellbeing.
Concerning factor seven, the trial court’s order states, in relevant part, that:
The Court is concerned as to whether [Appellant] can stop his criminal drug
activity which has resulted in his incarceration. As such, it is questionable as
to whether [Appellant] could provide a safe and stable environment for the
child upon his release from the penitentiary.
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Although Father testified that he has changed since his incarceration and that he will not
return to his criminal lifestyle on release, his testimony indicates a way of thinking that is
contrary to this testimony. When asked about the time period that Father and Brittnie B.
lived together, which was immediately after Maddox’s birth, Father stated:
[W[henever me and [Brittnie B.] went in our first house together, you know, I
was selling a little bit of marijuana and stuff like that. Never looked at it as we
was [sic] putting our child in any harm’s way or anything . . .
Father also justified his drug dealing as necessary to pay his legal expenses so as to defend
his parental rights. However, it is this pattern of thinking that has resulted in Father’s current
situation. Because Father apparently believes his justifications, his testimony does not
convince this Court, as it did not persuade the trial court, that he will not choose to return to
criminal activity after his release.
Finally, as to factor nine, i.e., whether the parent has paid support, we have previously
addressed the fact that Father has not paid child support since the end of 2012. This fact is
undisputed in the record. Therefore, from the totality of the circumstance and the record, we
conclude that there is clear and convincing evidence that termination of Appellant’s parental
rights is in the child’s best interest.
V. Conclusion
For the foregoing reasons, we affirm the order of the trial court terminating
Appellant’s parental rights. The case is remanded for such further proceedings as may be
necessary and are consistent with this opinion. Costs of the appeal are assessed against the
Appellant, Christopher H. Because Christopher H. is proceeding in forma pauperis in this
appeal, execution for costs may issue if necessary.
_________________________________
ARNOLD B. GOLDIN, JUDGE
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