In Re: River C.

04/28/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs April 3, 2017
IN RE RIVER C.
Appeal from the Juvenile Court for Hamilton County
No. 269,305 Robert D. Philyaw, Judge
No. E2016-02407-COA-R3-PT
Justin C. (“Father”) appeals the order of the Juvenile Court for Hamilton County (“the
Juvenile Court”) terminating his parental rights to the minor child River C. (“the Child”)
on the ground of abandonment by wanton disregard pursuant to Tenn. Code Ann. §§ 36-
1-113(g)(1) and 36-1-102(1)(A)(iv) and the ground of substantial noncompliance with the
permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2). We find and hold that
clear and convincing evidence was proven that grounds existed to terminate Father’s
parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-
1-113(g)(2) and that it was proven by clear and convincing evidence that the termination
was in the Child’s best interest. We, therefore, affirm the judgment of the Juvenile Court
terminating Father’s parental rights to the Child.
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.
Jason A. Fisher, Chattanooga, Tennessee, for the appellant, Justin C.
Herbert H. Slatery, III, Attorney General and Reporter; and W. Derek Green, Assistant
Attorney General, for the appellee, State of Tennessee Department of Children’s
Services.
Berry Foster, Chattanooga, Tennessee, Guardian ad Litem.
OPINION
Background
The Child was taken into State custody on December 19, 2014, and was
adjudicated dependent and neglected on May 27, 2015. The Child was approximately six
months old when he entered State custody. The State of Tennessee Department of
Children’s Services (“DCS”) filed its petition seeking to terminate Father’s and Mother’s1
parental rights to the Child on December 11, 2015 (“the Petition”). The case was tried
over several days in August and September of 2016. The Child was two years old at the
time of trial.
At the time of trial, Father was incarcerated in the Bradley County jail where he
had been for a little over 90 days. Father participated in the trial by telephone. Prior to
his incarceration in the Bradley County jail, Father had been incarcerated in the Hamilton
County jail. His incarceration in the Hamilton County jail began in November of 2015,
and lasted approximately 70 days.
Father also was incarcerated at the time that DCS filed the Petition. Father
testified that he had been charged with felony evading, assault, and theft of property.
Father stated that he could not remember all of the offenses with which he had been
charged. Father admitted that one of the charges was for possession of
methamphetamine. Father pled guilty and has been sentenced on those charges. He
stated that he “received six years on enhanced state probation with also a GPS monitor
and a 6:00 to 6:00 curfew.”
Father testified that he recently was sentenced to four years in Cleveland,
Tennessee for violating probation on the underlying charges of simple burglary and theft
of property, which he incurred in 2010. Father admitted that he has had convictions in
Hamilton County General Sessions Court after the Child was taken into State custody.
Father admitted that he was convicted in 2006 in Georgia of felony possession of
marijuana and felony manufacture of marijuana. In 2013, Father was charged in Walker
County with DUI, possession of marijuana and driving on a suspended license. He
received 24 months suspended sentence and was put on probation for these offenses.
Father stated that he was not on parole in Georgia when he incurred the charges in
Hamilton County because he had violated his parole earlier and been sentenced in
Georgia where he served nine months. Father could not remember the dates he served
1
Mother did not appeal the termination of her parental rights to the Child.
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time in Georgia, but stated that it was from December of 2013, until June, July, or August
of 2014.
Father admitted that he was charged with driving on a revoked license in
November of 2014. Father was put on probation for that offense. Father stated that “was
prior to [the Child] being taken from the home.” In January of 2015, Father was charged
with DUI. He served 60 days on that charge. In May of 2015, Father was charged with
unauthorized use of an automobile or joyriding. He served six months on that charge.
The Child was taken into State custody on December 19, 2014. Since the Child
was taken into custody Father has been out of incarceration for only 80 or 90 days.
Father stated: “About somewhere. I mean, I haven’t been out over four months on the
streets.”
When asked about the circumstances of how the Child entered State custody,
Father stated:
They come out to the home. At the time, I wasn’t doing no drugs.
The woman said that - - or they come out there and said there was a
disturbance or something. And whenever they was approached the home,
they totally surrounded the house, and all that. Whenever they come in the
house, they said that there was meth being cooked.
There was no meth being cooked at the home. When they searched,
they found some material that, I guess - - I didn’t have no knowledge that it
was even there . . . .
Mother was arrested. Father stated that Mother admitted ownership of the
methamphetamine materials. Father testified that he was not arrested on that day.
Father stated that after the Child was taken into State custody the Child was placed
with Father’s first cousin, John M., and his cousin’s wife, Brandie M. (collectively “his
Cousins”). Father stated that the Child has not been in his Cousins’ home the entire time
that he has been in State custody. Father testified:
He was taken out of their home at one time. In the beginning, he
went to another foster care home, and then he went into John and Brandie’s
home, and then there was some allegations or something that was said and
[the Child] was tooken out of their home but placed back into their home.
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Father is aware that his Cousins want to adopt the Child. He stated that he is not
in agreement with this adoption. Father stated: “If my rights was to be terminated, I
would - - I would be in agreement of it. But, if not, I would like to be able to, whenever I
get released from custody, to pursue to be able to get my rights back to my son.” Father
was asked why he didn’t want his Cousins to adopt the Child, and he stated:
I would like to be able to pursue custody at the time of my release. I
mean, I know that it has been a significant amount of time and there have
been numerous things that has went on.
But, you know, I ask for mercy of the Court to accept that, you
know, I am going through - - I mean, I was going to be released from here
on - - if I had been released on the 5th from here, I was going to go straight
to CADAS and admitted into CADAS and go to Joe Johnson, was going to
admit into Joe Johnson to get all that taken care of.
I got my home, but I just needed to find a job and get that squared
away. Other than that, you know, I know that there’s a lot of things that
has happened.
Father stated that he has nine more months to serve in Bradley County. Father
admitted that he previously had stated that he would be released by the time of trial, but
that did not happen. Father insisted, however, that he would be out in less than a year.
Father was asked when he last saw the Child, and he stated: “2014 - - or 2015.”
Father could not recall the month, and he stated: “I’ve been incarcerated a lot.” Father
was asked if he beleved that the Child still remembered him, and he stated: “I would say
so.”
Father testified that his plan is to live with his fiancée when he is released. Father
has been involved in a relationship with his fiancée since September of 2015. He
testified that they have been engaged since October of 2015, which was shortly before
Father’s current incarceration. When asked about his fiancée, Father stated:
She’s - - [my fiancée], she runs RT Cycles. She has a master’s associate’s
in accounting. She works at Stone Source in Hamilton County off of Broad
Street as a sec - - not a secretary, but accountant. She does the accounting
for her mother and father’s shop, RT Cycles.
She’s owned her home for approximately 15 years. She’s never had
no criminal charges or anything criminal. She doesn’t do drugs.
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Father is not in contact with Mother and does not know where she is living.
Father stated that the last he knew was that Mother was “in some mental health
evaluation or hospital that was in Georgia called Out Of Darkness.”
Father was asked if he was doing drugs prior to his incarceration in November of
2015, and he stated: “No, ma’am, the drugs was Alicia Boles (phonetic) that was in the
vehicle, and no one - - and she wouldn’t take ownership of it, and they released her and
arrested me.” When questioned further Father admitted that he had someone in the car
who had drugs on them. Father stated that the Child was not in the car with them at that
time, but was at his Cousins’ home.
Father admitted receiving a copy of the Permanency Plan created for the Child
(“the Permanency Plan”) and also admitted that DCS had reviewed the plan with him.
Father stated that he did recall signing a Permanency Plan after the Child was taken into
State custody. Father admitted that he knew what his responsibilities were under the
Permanency Plan. He stated: “I was supposed to go through the mental health evaluation,
drug assessment evaluation, a stable job, stable living, and take care of all legal matters
that I had going.” Father was asked if he had accomplished any of the tasks on the
Permanency Plan, and he stated: “Did I accomplish anything on the plan? No, ma’am.”
He stated: “Once [the Child] was taken out of my - - out of the home - - [the Child] didn’t
want for nothing. I worked every day. And when [the Child] was taken out of the home,
I lost any and all care of life, really.” Father was asked if he had taken advantage of any
of the services or classes offered while he was incarcerated so that he could work on the
tasks on the Permanency Plan, and he stated: “I tried to, ma’am, but they said I didn’t
have enough time.” Father admitted that he didn’t do anything while incarcerated.
Father stated he was “100 percent sober” and that the last time he used drugs was
in January of 2015. Father was asked why he asserted that things would be different
when he was released from incarceration, and he stated:
Well, you know, I have lived a life of not the most righteous life.
The one thing I have been trying to do this whole time, I have been trying
to make amends with anybody and everybody that I have ever hurt
mentally, physically, or emotionally, and that goes with [the Child] also.
I wrote my kids a letter with Leanne. I wrote Leanne a letter. And I
just want forgiveness from people, you know because I’ve spent - - I’m 30
years old. I’ve spent over three-quarters of my adult life in incarceration.
I’m tired of it.
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Father testified that he has converted to Christianity. He stated:
I stay in my word. I pray every night and every morning whenever I
get up. I go to church whenever they attend them here in the jail and in
Hamilton County when I was there. You know, I just want to be able to - -
for my soul to be at rest because my soul is filled with failure.
My heart and mind is at peace with God, but my soul is filled with
failure. I failed my children. I failed my mother. I failed my father.
Father testified that his fiancée also is a Christian. Father did not know to which church
his fiancée belonged.
Father was asked if he had any idea where he will be working upon his release
from incarceration, and he stated that he would work at Totts Remodeling doing
construction. Father stated that his family members have talked to the boss at Totts
Remodeling, but Father has not yet spoken with him.
Father agreed that the Child has been in State custody for 599 days. Father agreed
that if he is released in nine months, as he asserted he would be, the Child still would be
in State custody for a total of around 869 days. Father was asked if it was fair that the
Child would not have seen Father for two or three months of 2015, the entire year of
2016, and the first five months of 2017, assuming that Father is released when he asserts
he will be. Father stated: “No, it isn’t fair to him, Your Honor - - or sir.” Father then
stated: “It would be in the best interest for a son to be raised by his biological father.
That’s what I would like to be able to be explained to him.” Father insisted that the Child
“might not completely remember me, but he will remember me.”
Father admitted that the Child has formed a bond with his foster parents. Father
stated:
Yes, I’m sure he has [formed a bond with them]. That is - - I mean,
that is one of his family members. And why they ever even put a - - the
State made them where my son could just be in the custody of one of his
family members, they made them go to adoption against me. But I didn’t
fail a drug test on December 19th, 2014.
Father agreed that the Child most likely refers to his foster father as daddy. Father stated:
“But he isn’t the father. He isn’t - - he might be playing daddy, but he isn’t the father of
[the Child].”
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The Child’s foster mother, Brandie M. (“Foster Mom”), testified at trial. Foster
Mom explained that her husband (“Foster Dad”) is Father’s cousin. The Child entered
their home on January 2, 2015. Foster Mom and her husband do not have any other
children.
Foster Mom testified that the Child has not been in her home continuously since
that time, and she further explained:
There was a one-week break where he was removed from the home
due to some miscommunications with two different caseworkers, our home
worker, our resource parent worker, and the home study worker.
Unfortunately, they were asking different questions and, of course, getting
different answers. And so, although it was essentially the same question, it
was phrased differently. And once we had a child and family team meeting
to clear all of that up, we were able to pick [the Child] up that day.
The Child was six months old when he entered the foster home. Foster Mom was
asked what the Child was like when he entered their home, and she stated: “Healthy,
happy. He did come to us with a double ear infection, and that was recurring throughout
that winter, but since then, we’ve not had any issues. He didn’t seem to have any
attachment issues. Everything was as normal as you could ask for.” Foster Mom was
asked if the Child was meeting his developmental milestones, and she stated: “He’s
actually exceeding most of his milestones.”
Foster Mom testified that they received occasional phone calls and text messages
from Father and Mother when the Child first entered their home. She stated: “But those
stopped relatively early on.” Father last saw the Child on January 14, 2015, and they
received two phone calls from him after that time. Foster Mom testified that the Child is
bonded to her and her husband. The Child calls her ‘Momma’ and her husband ‘Dadda.’
As far as Foster Mom is aware, the Child could not identify Father if he saw him.
Foster Mom testified that she and her husband never have had a close relationship
with Father. She was asked about their relationship with Father’s mother, and she stated:
She’s been very helpful with [the Child] in helping to make sure that
we are able to meet all of his needs. She’s provided far more than she ever
needed to for him. We speak on at least a weekly basis, if not every couple
of days. She checks in to see how [the Child’s] doing, how school is going,
health-wise.
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She’s attended every function that we’ve had for him. She actually
held his last birthday party for us. She’s - - we have definitely grown closer
since [the Child] came into our home. . . . She really likes to go shopping
for him. She’s all the time bringing clothes or toys. She actually asked me
in the waiting room earlier about a toy that she found, to see if I thought he
would like it so that she could go buy it today.
When asked about the Child’s relationship with other family members, Foster
Mom stated:
My family has taken him in as one of their own. My parents love him very
much, as does my brother. All my familly has welcomed him with open
arms. All of John’s family and, in turn, [Father’s] family is very close with
him.
We actually, with DCS permission, took him down to Florida to see
[Father’s] brother and his wife and nephew back in May so that he could
begin to form a relationship with them and more than just a telephone kind
of relationship.
He’s absolutely bonded with everyone that he’s come in contact
with. He’s a very friendly, loving child.
Foster Mom testified that Father has other children and that she and her husband have
facilitated a relationship between the Child and Father’s other children. Foster Mom
explained:
Over the past several months, the other mother has agreed to allow the
other children to know who [the Child] is as their brother. And so we’ve
gotten them together quite a few times at the grandmother’s, [Father’s
mother’s], house.
We were at a family reunion with them at one point. They have
been slowly developing a relationship and I think it’s been very healthy for
all four of them. There are three other children and [the Child]. And [the
Child’s] been very, very excited about brothers and sister. He asks for
them quite frequently, actually.
The Child is enrolled in a daycare close to where Foster Mom works. Foster Mom
testified that she could be at the daycare “within about five minutes.” When asked how
the Child was doing in daycare, Foster Mom stated:
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Wonderfully. He’s - - I think they’re a good part of how he has
managed to exceed so many of his milestones[.] He can count to 12 almost
every single time by himself, with no help whatsoever. He’s just turned
two. He knows his ABCs. He can identify them all, capital, and most of
them lowercase. He’s pretty impressive, actually. We’re definitely
supporters of our day care.
Foster Mom testified that she and her husband want to adopt the Child if he
becomes available for adoption. When asked if she and her husband could provide for
the Child financially, Foster Mom stated: “Without a doubt.” Foster Mom was asked if
DCS had pushed them to adopt, and she stated:
Nobody has pushed it. If rights are terminated, we would be more
than happy to adopt [the Child]. He’s been with us now for a year and a
half. We consider him a part of our family more so than just a cousin.
We’re absolutely in love with him and would gladly adopt him.
Foster Mom was asked if adoption were allowed would they allow Father to have
contact with the Child in the future, and she stated:
That is completely up to [Father] and [Father’s] behavior. We don’t
have any problem with [the Child] knowing who [Father] is. He knows all
of [Father’s] family. He deserves to know where he came from, and he
deserves to know his family.
But if he’s on drugs and he is in and out of jail, that’s not the type of
influence that I would want on any child, and I don’t think it’s fair to [the
Child] to expose him to that type of behavior.
Foster Mom was asked why she and her husband don’t just continue to keep the
Child as a cousin instead of adopting, and she stated:
I think mostly because that feels like he’s in limbo and he doesn’t
have permanency. If he’s just living with someone else, whether it be us or
his grandmother or anybody else who has custody of him, then there is
always a question of what could happen with him: Will his parents show up
and decide they want to play mom and dad now? And so they’re going to
clean up their act for a couple of months and take him back and disrupt his
life and turn his world upside down because now he’s been taken from the
only thing he’s ever known, the only thing he has any memory of?
-9-
And they’ve both shown a lot of recidivism. It’s not fair to him to
have that in question, whether or not he’s going to have that stability.
I would hope that [Father] and [Mother] had both learned their
lesson just by [the Child] being taken out of the home. I expected for this
to be a very temporary thing and him to go back home within a month or
two. But neither of them have shown any interest in turning their lives
around.
And it’s just not fair to him to be in limbo like that. I want him to
have the permanency. I want him to know that he’s got a family who loves
him and wants to do right by him.
And if they want to do right by theirselves, then they can still be a
part of his life. But until they can take care of theirselves, there is no way
they can take care of him.
Based upon her observation of the Child, Foster Mom was asked what type of
impact it might have upon him if he were removed from their custody, and she stated:
Based on the week that he was away from us, he was around nine
months old at the time, so I would think that his reaction would be a lot
stronger and of the same type, with the attachment-type issues, the crying.
I know the foster parent that he was with for that week. We’ve
actually since met and become friends through the foster parent conferences
and things like that. At the time, she was sending me text messages telling
me that he was okay, trying to keep me from worrying, but, after the fact,
she told me that he was having some difficulty eating, he was having
trouble sleeping.
He’s a baby. Still at two, he is a baby. He doesn’t understand when
somebody’s gone. He just knows that they are gone. And I have seen how
he acts when my husband goes outside without him. And I’m afraid of
long-term consequences if he were moved at this point, because, even at
two years old, they don’t understand why something is happening, but they
still have feelings that that [sic] they can’t process. And I don’t think that it
would be a positive reaction at all.
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Foster Mom was asked how things have gone having the Child in her household,
and she stated:
Other than the one week that he was moved, very well. He adjusted
very quickly.
After he was moved, we had a little bit of an issue with some
separation anxiety because he was always afraid we were going to hand
him off to somebody again. It took several months for him to recover from
that. He would wake up in the middle of the night screaming, and he
couldn’t be comforted until he saw or heard one of us. And as soon as he
knew that he was still with us, he would go right back to sleep.
But, other than that, he’s progressing wonderfully. He’s exceeding
all of his milestones. You heard me say that he could already say and
identify his ABCs and can count to 12. Occasionally, he counts to 20.
He’ll miss a couple here and there, but he’s two, and that is incredibly
impressive. He’s smarter than his own good. (Laughing.) He’s great.
Betty S. (“Grandmother”) is the Child’s paternal grandmother. Grandmother
testified that she spoke with Father approximately four days before trial. Grandmother
was asked what they spoke about, and she stated that Father said: “Mom, they gave me
four years. They gave me 19 months of credit. I’ll be out in about a year. Can you put
money on my book?” Grandmother speaks to Father about once every other week or
once a month.
Grandmother testified that she was not aware that Father has a fiancée. She stated
that Father has mentioned the woman he testified was his fiancée, but stated that Father
still was married to another woman. Grandmother testified that Father has three children
with his wife. Father does not have a relationship with these three children.
Grandmother also testified that Father does not have a relationship with the Child. Father
never asks Grandmother how the Child is doing. Father also never asks Grandmother
about how his other children are doing.
Grandmother was asked what her relationship with the Child was like, and she
stated: “Great, as always. I mean, I play with him. We play games. We play - - we go to
the swimming pool. He comes and he eat [sic] crackers at Nana’s house. He calls me
Nana Betty Jo. He’s just a wonderful baby. He’s very well-adjusted.”
Grandmother testified that she paid all of the bills when Father, Mother, and the
Child lived with her. Father never contributed toward the household expenses.
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Grandmother testified that Father never has paid child support. Grandmother was asked
if Father ever maintained employment, and she stated:
He says that he has his own business, which is he had a central
heating and air company, but it’s not the truth. You know, yes, he goes and
does changes out here and there, but it’s nothing consistent. It’s not a
weekly job.
He’ll make money, then he goes and blows money, and then he goes
and makes money, then he blows money.
Grandmother also was asked if Father ever had stable housing, and she stated: “If
he’s living with someone, like me or his wife.” Grandmother stated that Father’s wife
left him when he went to prison approximately six years ago. When asked if she would
say that Father has made any adjustment to his circumstances since the Child was taken
into custody Grandmother stated: “No. I mean, he’s went further downhill. He’s got into
more trouble and more trouble and more trouble.” Grandmother is concerned that if the
Child were placed into Father’s home that the Child would “be right back in DCS
custody within 90 days.” Grandmother testified that the Child was doing “[e]xtremely”
well in the foster home, and that he was “[v]ery” smart and was happy and healthy.
Grandmother wrote a letter to DCS, and she was asked why she wrote the letter.
She stated: “[the Child] being in DCS custody has really taken a toll on me health-wise
because I know my son and he’s not going to change, and I want this over, and I want
[the Child] to be able to have stability and consistency and being stable in his home.”
Grandmother understands that she no longer will be the Child’s grandmother if Father’s
parental rights are terminated, but she stated: “but I’ll always be his nana.” Grandmother
understands that if the foster parents adopt the Child that they could decide to prevent her
from having contact with the Child, but she still believes that allowing the foster parents
to adopt would be “[e]xtremely so” in the best interest of the Child. Grandmother agreed
that she is testifying out of her concern for the wellbeing of the Child. She stated: “My
grandson don’t have a voice. He’s two. I want the best for my grandson, and that’s John
and Brandie. I love my son, and he’s the fun side of being a parent, but he’s not the
responsible side of being a parent.”
Tajuana Mitchell2 (“T. Mitchell”) is a team leader for DCS who has supervised the
caseworkers assigned to the Child’s case. T. Mitchell testified that she is “into [her]
thirty-second year” with DCS. T. Mitchell became involved in the Child’s case when he
2
Both Tajuana Mitchell and Connee Mitchell from DCS testified in this case. For ease of reference, and
to minimize confusion, we refer in this Opinion to these witnesses as ‘T. Mitchell’ and ‘C. Mitchell’
respectively.
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first was taken into custody. She testified that she sees the Child at least monthly, and
most months she sees him two or three times during the month. T. Mitchell has attended
child and family team meetings for the Child.
T. Mitchell stated that when the Child first entered custody:
I was very optimistic about [Mother] and [Father] because [Father], you
know, he articulated in a fashion that he wanted his child and he wanted to
do what was in the best interest of the child, and he wanted to try to get
himself together. At that point, he was with [Mother]. Back when the child
was removed, he was with [Mother]. And he wanted them together to get
their, you know, problems worked out so that they could raise the child.
T. Mitchell testified that she was present when the first Permancy Plan was
developed, and both Mother and Father were present. T. Mitchell stated that after that it
was “probably close to ten months before [she] saw the father again.” She could not
recall Father and Mother participating in any of the subsequent Permanency Plan
meetings. T. Mitchell testified that the consequences for failure to comply with the
Permanency Plan were explained in detail to Father.
T. Mitchell testified that she has observed the Child in the foster home “[a]t least
20 times.” When asked how the Child is doing in the foster home, she stated:
He’s very happy. He’s very comfortable. He’s very territorial. He
knows who I am. He’s very familiar with me. Even when he sees me
there, when I go to see him at his day care, when he sees me, he’s just like
he drops everything and comes, you know, like “She’s mine. She’s a part
of me.”
But anyway, he’s very loving. He’s very happy. One thing I can
say, when I - - even if I’m at the day care and I have him and [Foster Mom]
comes, he’ll just forget all about me, and just, you know, it’s all about
[Foster Mom]. You know, I kind of - - but anyway, they have - - it’s a
wonderful relationship.
Even with John, I saw John, they have a farm, and [the Child] is very
- - you know, they introduce him to a lot of things. They introduce him to
nature. They introduce him to animals. They take him to the zoo. They’ve
got pictures. I’ve got more pictures of [the Child] than I have of my own
grandchildren. They just - - you know, I’m just amazed at how much love
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he receives from them. I’m very happy and satisfied with what I see, the
type of treatment that I see [the foster parents] are giving [the Child].
T. Mitchell has not seen any progress on Father’s part that would cause her to
recommend that custody of the Child be placed back with Father. In her opinion Father
has not changed his circumstances to make it appropriate for the Child to be returned to
him.
Connee Mitchell (“C. Mitchell”) is a family service worker two with DCS. She
has been employed by DCS for over 17 years. C. Mitchell began working on the Child’s
case on February 16, 2016. C. Mitchell was asked about meeting Father, and she stated:
I met [Father] [on May 17, 2016] when he was at Bradley County
jail, and I went to the jail to present the permanency plan to him, and I went
over the permanency plan with him as well as all of the Department’s
documentation, releases, the HIPAA information, all those documentations,
so that he could sign, and to go over that information with him.
C. Mitchell testified that under the Permanency Plan Father was to accomplish
tasks including participate in clinical intake and follow all recommendations, participate
in medication management, submit to random drug screens, have an A&D assessment
and follow all recommendations, resolve pending legal issues and refrain from incurring
any more legal charges, not associate with individuals known to participate in illegal
activities, maintain a safe home, have a legal verifiable income, pay child support, and
attend regular scheduled visitation with the Child. C. Mitchell testified that since she has
been the case manager, Father has not provided proof of completing any of the tasks and
responsibilities on the Permanency Plan. She testified that Father had a visit with the
Child on January 2, 2015, and one on January 14, 2015. Father has not visited with the
Child since January 14, 2015.
C. Mitchell testified that she reviewed the criteria for termination with Father. She
stated: “I read everything, single sentence, line-by-line, at his request. . . . When he did
not understand, he asked questions. And when I explained and he still didn’t understand,
I elaborated.”
After trial the Juvenile Court entered its detailed order on November 2, 2016,
terminating Father’s parental rights to the Child after finding and holding, inter alia:
5) The Juvenile Court of Hamilton County awarded the Department
custody of the subject child on December 19, 2014, and the child has been in
foster care continuously since that date. The circumstances of the child’s
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situation prevented reasonable efforts from being made prior to the child’s
removal. The child was adjudicated dependent and neglected on May 27,
2015.
6) At the time of removal, the Respondents, [Mother] and [Father], and the
child were staying with the paternal grandmother, [Grandmother]. On
December 19, 2014, the Department received a referral alleging drug exposed
child. Law enforcement had responded to [Grandmother’s] home for
suspected drug activity. Upon entering the home, law enforcement found
drug paraphernalia in the home. [Mother] admitted to law enforcement that
the drug paraphernalia belonged to her. She was arrested that night for
possession of drug paraphernalia and was taken into custody. [Father] was
drug screened by law enforcement and tested positive for methamphetamine.
He admitted that he had just smoked marijuana that night. He had recently
been released from jail and was on probation at the time. His mother,
[Grandmother], tested positive for benzodiazepines and THC. She could not
provide a prescription for the benzodiazepines. The family reported that all
their relatives resided in Georgia and could not think of anyone who they could
place the child with that night. Therefore, the child was placed in
emergency protective custody due to the circumstances of the family and the
child at that time.
7) [Father] testified that he is currently incarcerated at the Bradley County
Jail and has been there for a little over ninety (90) days. Prior to being
transferred to Bradley County, he had been incarcerated in Hamilton County
since November 25, 2015. He testified that he has only been out of jail for
approximately ninety (90) days since the subject child entered custody. He
stipulated to the certified criminal records that were offered as evidence by
the Department. Since the child’s birth, [Father] has had the following
convictions: driving on revoked license, driving under the influence, driving
on revoked license, unauthorized use of automobile (joy riding), theft of
property (D felony), assault, false reports, evading arrest, theft of property,
possession of methamphetamine, theft of property, and evading arrest. In
April 2016, [Father] entered a plea of guilty and was sentenced to six (6)
years on enhanced state probation with a GPS monitor and a curfew. At the
time [Father] incurred these charges, he was on probation in Bradley County
for burglary (other than habitation) and theft of property $500-$1,000. A
violation of probation hearing was held in Bradley County in August 2016.
[Father’s] probation was revoked and he was sentenced to serve four (4) years.
However, [Father] testified that he expected to be released in eight (8) to nine (9)
months.
8) [Father] testified that he is a different man now than he was even a year
ago, or when he went into jail. He testified that he last used drugs in January
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2015. He told the Court that he is trying to make amends with everyone, and that
he wants forgiveness. He is thirty (30) years old and has spent three-fourths
(3/4) of his life incarcerated. He is following a religious regimen now. He
testified that his soul is filled with failure, and that he is in a much better place
personally than he has been in the past. Further, [Father] testified that he has a
fiancée, a home, and a job waiting for him upon his release from
incarceration.
9) [Father] testified that he knew his responsibilities under the
permanency plan, and that he initially signed the plan in January 2015.
Specifically, he testified that he was supposed to have a mental health
evaluation, alcohol and drug assessment, stable job, stable living, and take care
of his pending legal matters. He admitted that he had not accomplished
anything on the plan. He tried to take some classes while incarcerated at
Silverdale, but testified that he did not have time.
10) [Foster Mom.] testified that her husband, [Foster Dad], is [Father’s] first
cousin. The subject child has lived in their home since January 2, 2015. There
was a one-week period where the child was removed from their home due to
miscommunication between two (2) caseworkers. However, the issue was
resolved and the child was returned to their home. After the child was
removed from their home, the child had issues with separation anxiety.
Otherwise, the child is happy and healthy. [Foster Mom] testified that he is
exceeding most of his developmental milestones.
11) [Foster Mom] testified that [Father] last saw the child on January 14,
2015, and they only received phone calls from him after that. [Mother’s] last
visit was on February 11, 2015, and they received a few text messages from her
after that in February 2015.
12) [Foster Mom] testified that the paternal grandmother, [Grandmother],
has been very helpful in making sure that she and her husband are able to meet
all of the child’s needs. Specifically, [Foster Mom] testified that they speak
with [Grandmother] on at least a weekly basis, and that [Grandmother] checks in
to see how the child is doing, how school is going, and health-wise.
[Grandmother] brings the child clothes and toys.
13) [Foster Mom] testified that the subject child is slowly developing a
relationship with [Father’s] other three children who are not in DCS custody.
She believes this is healthy for the child, as the child is very excited about his
brothers and sister and asks for them quite frequently.
14) The [foster parents] have tried to maintain a relationship with
[Mother’s] family as well. [Foster Mom] testified that she has cultivated a
relationship with her family so that the subject child can develop a relationship
with [Mother’s] other child who is not in DCS custody.
-16-
15) [Foster Mom] testified that the child is bonded to her and her family.
She and her husband wish to adopt the child.
16) Paternal grandmother, [Grandmother], testified that she last had contact
with her son, [Father], about four (4) days ago. She testified that he told her
that he was given nineteen (19) months of credit, and that he would be released
in about a year. He also asked her to put money on his book. [Grandmother]
testified that [Father] is married and has three (3) children with his estranged
wife. She testified that [Father] does not have a relationship with those
children or with the subject child. Further, [Grandmother] testified that [Father]
has never asked about the subject child or his other children during her phone
conversations with him.
17) Prior to the child’s removal from her home, [Grandmother] testified
that [Father] did not financially support the subject child, and that she paid all
the bills. Moreover, [Grandmother] testified that [Father] has not paid child
support for his other three children.
18) [Grandmother] testified that she last heard from [Mother] about a year
ago, as [Mother] called [Grandmother] and asked if she could stay with her after
she got out of Moccasin Bend. However, [Grandmother] told her absolutely no.
19) [Grandmother] testified that the child is thriving in the [foster] home,
and that he is happy and healthy there. She believes it is in the child’s best
interest to be adopted by [the foster parents].
20) DCS Team Leader (TL), Tajuana Mitchell, testified that she has
supervised the caseworkers in this matter for the duration of the case.
However, she also visits with the subject child at least monthly, and sometimes
two (2) to three (3) times a month.
21) TL Mitchell testified that she participated in the initial Child and
Family Team Meeting (CFTM) in this case on December 19, 2014. She was
present when the first permanency plan was developed. She testified that both
[Father and Mother] participated in the development of the initial plan and the
plan was explained in detail to [Father and Mother]. Further, [Father and
Mother] were given a copy of the Criteria for Termination of Parental Rights,
which was signed by both [Father and Mother] on January 13, 2015.
***
24) TL Mitchell testified that she visited Respondent, [Father], at Red
Bank City Court in December 2015, as she was also trying to engage him in the
process again.
25) TL Mitchell testified that the parents have not complied with the
responsibilities set forth in the permanency plan prepared for them. She
testified that no one has provided her with any documentation of completion of
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the responsibilities on the permanency plan. She testified that [Father and
Mother] have not changed their circumstances to make it appropriate for this
child to be returned to their care. Further, she testified that the only barrier to
permanency at this time is the termination of [Father’s and Mother’s] parental
rights.
26) FSW Connee Mitchell testified that she received professional
responsibility for this case on February 16, 2016. . . .
***
29) FSW Mitchell testified that she initially met [Father] at the Bradley
County Jail on May 17, 2016. She gave him a copy of the most recent
permanency plan and went over the plan with him. She gave him releases to
sign as well. She testified that [Father’s] responsibilities under the plan were as
follows: participate in a clinical intake and follow all recommendations;
participate in a clinical parenting assessment and follow all
recommendations; participate in medication management assessment and
follow all recommendations; submit to random drug screens and, if positive,
will have an alcohol and drug assessment and follow all recommendations;
resolve all pending legal charges; refrain from illegal activities and not incur
any new charges; refrain from engaging with individuals who are known to
participate in illegal activities; maintain a safe home where the child’s needs
will be met; have legal verifiable income; pay child support as ordered; attend
regular scheduled visitation with the child; maintain contact with the
Department; and sign all required releases for case management.
30) FSW Mitchell testified that [Father] had not provided her proof of
completion of any of the tasks on the Statement of Responsibilities, but did
sign releases as required. Moreover, she did not find documentation of
completion of any additional steps on the plan upon being assigned the case.
***
33) FSW Mitchell testified that [Father and Mother] had not visited the child
since she was assigned the case. However, according to the case file, [Father]
had a visit on January 2, 2015 and his last visit was on January 14, 2015. . . .
***
35) FSW Mitchell testified that the barriers to reunification are that
[Mother’s] whereabouts are currently unknown and that [Father] remains
incarcerated at this time.
-18-
Based upon these findings of fact the Court finds that the following
grounds exist for the termination of [Father’s and Mother’s] parental rights:
Abandonment by Incarcerated Parent – Wanton Disregard
The State has established the ground of Abandonment by Incarcerated
Parent - Wanton Disregard, pursuant to T.C.A. §§ 36-l-113(g)(l) and 36-l-
102(l)(A)(iv), by clear and convincing evidence as to both [Father and
Mother].
36) Respondents, [Father] and [Mother], were incarcerated part, or all of,
the four (4) months prior to the filing of the petition. . . . [Father] has been
incarcerated since November 2015 and is now incarcerated at the Bradley
County Jail, serving a four (4) year sentence.
37) The Respondents, [Father] and [Mother], have engaged in conduct prior
to incarceration that exhibits a wanton disregard for the welfare of the child.
38) Specifically, since the child’s birth, [Father] has had the following
convictions: driving on revoked license, driving under the influence, driving on
revoked license, unauthorized use of automobile (joy riding), theft of property (D
felony), assault, false reports, evading arrest, theft of property, possession of
methamphetamine, theft of property, and evading arrest. At the time [Father]
incurred these charges, he was already on probation in Bradley County for
burglary (other than habitation) and theft of property $500-$1,000. A violation
of probation hearing was held in Bradley County in August 2016. [Father’s]
probation was revoked and he was sentenced to serve four (4) years. Further, at
the time of removal, he was drug screened by law enforcement and tested
positive for methamphetamine.
***
Substantial Noncompliance with Permanency Plan
The State has established the ground of Substantial Noncompliance
with Permanency Plan, pursuant to T.C.A. §§ 36-l-113(g)(2) and 37-2-403(a)(2),
by clear and convincing evidence as to both [Father and Mother].
40) Respondents, [Father] and [Mother], failed to comply in a substantial
manner with the Statement of Responsibilities set out in the periodic foster care
plan prepared for and signed by them on January 13, 2015.
41) [Father and Mother] participated in the development of the plan.
The Department explained to [Father and Mother] those reasonable
responsibilities, which are aimed at remedying the conditions, which necessitate
foster care placement.
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42) Specifically, [Father and Mother] failed to complete any task on their
plan, except for signing the necessary releases. . . .
43) The Department made reasonable efforts to help [Father and Mother]
satisfy the requirements in the permanency plan by trying to locate and maintain
contact with [Father and Mother] and offering assistance to [Father and
Mother] in completing the requirements on the plan.
Best Interest
44) The Court finds clear and convincing evidence, pursuant to T.C.A. § 36-
1-113(i), that it is in the child’s best interest for termination to be granted, in
that the Respondents, [Father] and [Mother], have failed to make a lasting
adjustment of their circumstances to make it safe and in the children’s [sic] best
interest to be placed in their care.
45) The Court finds clear and convincing evidence, pursuant to T.C.A. §
36-1-113(i), that it is in the child’s best interest for termination to be granted,
as there is no meaningful relationship between the Respondents, [Father] and
[Mother], and the child because the Respondents have not maintained contact or
visited with the children [sic] since 2015.
46) The Court finds clear and convincing evidence, pursuant to T.C.A. § 36-
1-113(i), that it is in the child’s best interest for termination to be granted, in
that the Respondents, [Father] and [Mother], have not maintained constant or
regular visitation with the child.
47) The Court finds clear and convincing evidence, pursuant to T.C.A. § 36-
1-113(i), that it is in the child’s best interest for termination to be granted, as a
change of caretakers and home is likely to have a highly negative effect on the
child. The child is placed in a stable, pre-adoptive home. The child is thriving
in that home and has a strong bond with his foster family and other relatives.
[The foster parents] are the only parents that the child knows. [Father]
acknowledged that the child is in a good home, and testified that if his rights
were terminated, then he would agree that the child should be adopted by his
relatives, [the foster parents].
48) The Court finds clear and convincing evidence, pursuant to T.C.A. § 36-
1-113(i), that it is in the child’s best interest for termination to be granted, as the
physical environment of [Father’s and Mother’s] home is unhealthy and unsafe
due to criminal activity and the use of alcohol or controlled substances, which
renders [Father and Mother] consistently unable to care for the child in a safe
and stable manner.
Father appeals the termination of his parental rights to the Child.
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Discussion
Although not stated exactly as such, Father raises one issue on appeal3: whether
the Juvenile Court erred in finding that the termination of Father’s parental rights was in
the Child’s best interest when the Child has been placed with relatives who plan to
maintain a relationship with the Child’s paternal family members.
With regard to the termination of parental rights, our Supreme Court has
instructed:
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.4 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. “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.
3
In the argument section of his brief on appeal Father argues an additional issue, that DCS improperly
prolonged the Child’s stay in foster care. Father, however, failed to include this additional issue in his
statement of the issues required by Tenn. R. App. P. 27(a)(4). As this Court has explained: “issues must
be included in the Statement of Issues Presented for Review required by Tennessee Rules of Appellate
Procedure 27(a)(4). An issue not included is not properly before the Court of Appeals.” Hawkins v. Hart,
86 S.W.3d 522, 531 (Tenn. Ct. App. 2001). As Father did not include this additional issue in his
statement of the issues, Father has waived the issue. We note that even if Father had raised this issue
properly a resolution of this issue would not change our decision in this case in any way.
4
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.”
-21-
[“]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(l)(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 36-1113[sic](c) provides:
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
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(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 grounds5 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,6 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. § 36-1113[sic](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 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
5
Tenn. Code Ann. § 36-1-113(g)(1)-(13).
6
Tenn. Code Ann. § 36-1-113(i).
-23-
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
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).
-24-
Although Father does not raise any issue with regard to the Juvenile Court’s
findings that grounds to terminate his parental rights had been proven, our Supreme Court
has instructed that we must review the Juvenile Court’s findings with regard to each
ground for termination. We, therefore, begin by considering whether the Juvenile Court
erred in finding that clear and convincing evidence had been shown of grounds to
terminate Father’s parental rights to the Child for abandonment by wanton disregard
pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv).
Tennessee Code Ann. § 36-1-113(g)(1) provides:
(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. If the four-month period immediately preceding the
institution of the action or the four-month period immediatley preceding
such parent’s incarceration is interrupted by a period or periods of
incarceration, and there are not four (4) consecutive months without
-25-
incarceration immediately preceding either event, a four-month period shall
be created by aggregating the shorter periods of nonincarceration beginning
with the most recent period of nonincarceration prior to commencement of
the action and moving back in time. Periods of incarceration of less than
seven (7) days duration shall be counted as periods of nonincarceration.
Periods of incarceration not discovered by the petitioner and concealed,
denied, or forgotten by the parent shall also be counted as periods of
nonincarceration. A finding that the parent has abandoned the child for a
defined period in excess of four (4) months that would necessarily include
the four (4) months of nonincarceration immediately prior to the institution
of the action, but which does not precisely define the relevant four-month
period, shall be sufficient to establish abandonment;
Tenn. Code Ann. § 36-1-102(1)(A)(iv) (Supp. 2016).
With regard to this ground for termination, the Juvenile Court specifically found
and held:
36) Respondents, [Father] and [Mother], were incarcerated part or all of,
the four (4) months prior to the filing of the petition. . . . [Father] has been
incarcerated since November 2015 and is now incarcerated at the Bradley
County Jail, serving a four (4) year sentence.
37) The Respondents, [Father] and [Mother], have engaged in conduct prior
to incarceration that exhibits a wanton disregard for the welfare of the child.
38) Specifically, since the child’s birth, [Father] has had the following
convictions: driving on revoked license, driving under the influence, driving on
revoked license, unauthorized use of automobile (joy riding), theft of property (D
felony), assault, false reports, evading arrest, theft of property, possession of
methamphetamine, theft of property, and evading arrest. At the time [Father]
incurred these charges, he was already on probation in Bradley County for
burglary (other than habitation) and theft of property $500-$1,000. A violation
of probation hearing was held in Bradley County in August 2016. [Father’s]
probation was revoked and he was sentenced to serve four (4) years. Further, at
the time of removal, he was drug screened by law enforcement and tested
positive for methamphetamine.
The evidence in the record on appeal does not preponderate against the Juvenile
Court’s finding that Father was incarcerated at the time that DCS filed its petition seeking
to terminate his parental rights. Nor does the evidence in the record on appeal
preponderate against the Juvenile Court’s finding that Father engaged in conduct prior to
his incarceration that exhibited a wanton disregard for the welfare of the Child. This
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conduct included, in part, Father committing crimes such as driving under the influence,
theft, possession of methamphetamine, and evading arrest, among others. The Juvenile
Court correctly found that grounds to terminate Father’s parental rights for abandonment
by wanton disregard had been proven by clear and convincing evidence.
We next consider whether the Juvenile Court erred in finding that clear and
convincing evidence had been shown of grounds to terminate Father’s parental rights to
the Child for substantial failure to comply with the permanency plan pursuant to Tenn.
Code Ann. § 36-1-113(g)(2).
With regard to this ground for termination, Tenn. Code Ann. § 36-1-113(g)(2)
provides:
(2) There has been substantial noncompliance by the parent or guardian
with the statement of responsibilities in a permanency plan pursuant to the
provisions of title 37, chapter 2, part 4;
Tenn. Code Ann. § 36-1-113(g)(2) (Supp. 2016).
With regard to this ground for termination, the Juvenile Court specifically found
and held:
40) Respondents, [Father] and [Mother], failed to comply in a substantial
manner with the Statement of Responsibilities set out in the periodic foster care
plan prepared for and signed by them on January 13, 2015.
41) [Father and Mother] participated in the development of the plan.
The Department explained to [Father and Mother] those reasonable
responsibilities, which are aimed at remedying the conditions, which necessitate
foster care placement.
42) Specifically, [Father and Mother] failed to complete any task on their
plan, except for signing the necessary releases. . . .
43) The Department made reasonable efforts to help [Father and Mother]
satisfy the requirements in the permanency plan by trying to locate and maintain
contact with [Father and Mother] and offering assistance to [Father and
Mother] in completing the requirements on the plan.
The evidence in the record on appeal does not preponderate against the Juvenile
Court’s finding that Father failed to comply in a substantial manner with the Permanency
Plan. The evidence in the record on appeal shows that Father himself admitted that he
was aware of his responsibilities under the Permanency Plan, but that he failed to
complete any of the tasks on the Permanency Plan. The Juvenile Court correctly found
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that grounds to terminate Father’s parental rights for substantial failure to comply with
the Permanency Plan had been proven by clear and convincing evidence.
Finally, we consider the issue raised by Father: whether the Juvenile Court erred in
finding that clear and convincing evidence had been shown that it was in the Child’s best
interest for Father’s parental rights to be terminated. When making a determination with
regard to best interest, a court is to consider the list of non-exclusive factors contained in
Tenn. Code Ann. § 36-1-113(i). As this Court explained in In re Jaceton B.:
Once a ground for termination has been established, the ultimate
goal of the proceeding is to ascertain and promote the child’s best interests,
and to achieve that end courts must consider all relevant factors. See In re
Audrey S., 182 S.W.3d at 877; In re M.A.R., 183 S.W.3d 652, 667 (Tenn.
Ct. App. 2005). The child’s best interest must be viewed from the child’s,
rather than the parent’s, perspective. White v. Moody, 171 S.W.3d 187, 194
(Tenn. Ct. App. 2004). Ultimately, the relevancy and weight given to each
factor depends on the unique facts of each case. In Audrey S., 182 S.W.3d
at 878. Depending on the circumstances of the particular parent and
particular child in question, the consideration of one factor may determine
the outcome of the analysis. Id. (citing White, 171 S.W.3d at 194).
The General Assembly has provided a list of factors for courts to
consider when determining the best interests of a child. See Tenn. Code
Ann. § 36–1–113(i). This list is not exhaustive, and a trial court is not
required to find the existence of each enumerated factor before it
determines that terminating a party’s parental rights is in the best interest of
the child. In re M.A.R., 183 S.W.3d at 667. Instead, a court is required to
weigh both the factors listed in Tenn. Code Ann. § 36–1–113(i) and any
other relevant factors to determine whether terminating a parent’s rights is
in the child’s best interest. Id.
Other relevant factors may include the grounds for termination
themselves, especially when those grounds involve a long prison sentence.
See In re Dominique L.H., 393 S.W.3d at 717 (citing 43 C.J.S. Infants § 22
(2012)). Incarceration creates a lengthy delay in a parent’s ability to take
custody of his child, and such a delay is a strong indication that termination
is in the child’s best interests. See id. at 718, 720.
In re Jaceton B., No. M2014-01580-COA-R3-PT, 2015 WL 1517779, at **3-4 (Tenn. Ct.
App. March 30, 2015), no appl. perm. appeal filed.
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In his brief on appeal, Father argues that “the circumstances of this case present
the question of ‘what if?’ What if [Father] does follow through on his conversion? What
if [Father] does make such an adjustment in his circumstances which leads him back to
his family, to [the Child’s] family?” Father asserts that the record shows that the foster
family intends to raise the Child “as part of the biological family,” and that Father, if he
follows through “on his declarations of change,” will be able to have a relationship with
the Child. Father has missed the point. The point to be considered is the best interest of
the Child in light of all of the relevant factors, not what Father may or may not do at
some point in time in the future.
The evidence in the record on appeal shows that Father currently has no
relationship whatsoever with the Child and that this reality is a result of deliberate
choices made by Father. The evidence in the record on appeal shows that Father made
the choice to repeatedly engage in criminal behavior after the Child was taken into State
custody. Father also made the choice not to complete any of the tasks and responsiblities
set forth in the Permanency Plan. Father has done nothing to demonstrate that he is
willing to make the changes necessary for him to regain custody of the Child. The fact
that Father asserts that he wants to change in the future simply is insufficient. Whether
the foster parents intend to raise the Child as part of the biological family or whether they
intend to allow Father to have contact with the Child if Father does change his behavior is
immaterial to the question of whether it is in the Child’s best interest for Father’s parental
rights to be terminated.
The Juvenile Court considered all of the relevant factors contained in Tenn. Code
Ann. § 36-1-113(i) and found, inter alia, that Father had failed to make an adjustment to
his circumstances to make it safe for the Child to be placed in his care, that Father had no
meaningful relationship with the Child, that Father had failed to engage in regular
visitation or contact with the Child, that the Child was in a stable pre-adoptive home and
was thriving in the foster home, that the Child had developed a strong bond with the
foster parents, and that a change in caretakers would be detrimental to the Child’s
wellbeing. The evidence in the record on appeal does not preponderate against these
findings made by clear and convincing evidence.
Grounds for the termination of Father’s parental rights to the Child were proven
by clear and convincing evidence. It also was proven by clear and convincing evidence
that it was in the Child’s best interest for Father’s parental rights to be terminated. As
such, we affirm the Juvenile Court’s November 2, 2016 order terminating Father’s
parental rights to the Child.
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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, Justin C.
_________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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