In re M.E.T. ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs September 2, 2016
IN RE M.E.T.
Appeal from the Juvenile Court for Shelby County
No. Z6581 Harold W. Horne, Special Judge
No. W2016-00682-COA-R3-PT – Filed November 29, 2016
_________________________________
The Department of Children‟s Services filed a petition in July 2015 to terminate the
parental rights of M.G.H. (Father) with respect to his child, M.E.T. (the child).1 The trial
court found clear and convincing evidence of grounds supporting termination for Father
due to abandonment by an incarcerated parent and persistence of conditions. The court
also found, by the same standard of proof, that termination is in the best interest of the
child. Father appeals. We affirm the trial court‟s holding as modified.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed as Modified ; Case Remanded
CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which RICHARD H.
DINKINS, and ARNOLD B. GOLDIN, JJ., joined.
Evan Williams, Memphis, Tennessee, for the appellant, M.G.H.
Herbert H. Slatery III, Attorney General and Reporter, and M. Cameron Himes, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children‟s Services.
OPINION
I.
Father and Z.P.T. (Mother) were never married. They were in a relationship from
about 2009 until late 2012. The child was born in July 2013. No father was listed on his
1
The petition also sought to terminate the parental rights of the child‟s mother, Z.P.T.
Her rights were terminated in an order entered February 15, 2016. The termination of her rights
is not before us on this appeal.
birth certificate. After the child‟s birth, Mother left the hospital without the child. The
trial court found her “mentally unstable,” noncompliant with medication for her
schizophrenia diagnosis, and without stable housing or child care equipment. In August
2013, the child was placed in the custody of DCS. He was adjudicated dependent and
neglected that November.
At the outset of the case, Mother orally provided DCS with the name of the
putative biological father. She did not provide any other credible information about him.
She gave DCS two possible “endings” for Father‟s first name. A DCS caseworker
recorded Father‟s first name as ending in “-ez” or “-el,” though, as it turned out, it
actually ends “-al.” Equipped with the two wrong endings and nothing more, DCS was
unable to locate Father. In 2014, a DCS caseworker by the name of Melissa Justice, by
chance, saw Mother at a McDonald‟s restaurant. Ms. Justice testified that she verified
Mother‟s identity, after which she engaged her in conversation. In the course of their
discussion, Mother wrongly identified others at the restaurant as her children when they
were not. Mother spoke with Ms. Justice about the child‟s twin – Maxwell. In fact, the
child had no twin. Ms. Justice wrote her telephone number on a piece of paper and gave
it to Mother, asking her to contact DCS regarding the child‟s case. She did not hear from
Mother for some time. About a year later, the child‟s paternal grandmother contacted
Ms. Justice. The grandmother provided DCS with the correct spelling of Father‟s name.
DCS was finally able to identify Father in March or April of 2015.
On April 13, 2015, Ms. Justice met Father for the first time. At the time, he was
incarcerated for assault. She testified that during the meeting she discussed with him the
permanency plan and the criteria and procedures for termination of parental rights. By
that time, two permanency plans had been developed, both of which listed an incorrect
spelling of Father‟s name. Ms. Justice testified that at the April 2015 meeting Father
“told [her] that he knew that [Mother] was pregnant and that she had named the baby
[M].” At trial, Father denied having made that statement. Justice testified that the
putative father registry revealed no other claims to paternity, no other man had held
himself out as the father, and Mother had not identified another possible father. DCS
arranged for Father to take a DNA test to address the issue of paternity. Father testified
that he first learned of the existence of the child in April 2015. He said he did not know
he was the father until he received the DNA test results in July 2015. On July 17, 2015,
DCS filed a petition to terminate both parents‟ rights. DCS amended the petition in a
filing on November 12, 2015. As to Father, the petition was amended to add the ground
of persistence of conditions.
Father has an extensive criminal history. By the time of trial on February 4, 2016,
he had not met or paid any support for the child. He was then out of prison and living
2
with his mother after a stint in a halfway house. The trial court found clear and
convincing evidence of grounds to terminate Father‟s parental rights due to abandonment
by an incarcerated parent, pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) (2014) and -
102(1)(A)(iv) (2014), and for persistence of conditions, pursuant to Tenn. Code Ann. §
36-1-113(g)(3). The trial court also found, by the same standard, that termination was in
the child‟s best interests. Father appeals.
II.
Father raises two issues on appeal. (1) Whether the trial court erred in finding
statutory grounds for termination due to abandonment and persistence of conditions. (2)
Whether the termination of parental rights is in the best interests of the minor child.
III.
A parent has a fundamental right, based on both the federal and state constitutions,
to the care, custody, and control of his or her child. Stanley v. Ill., 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud,
921 S.W.2d 170, 174-75 (Tenn. 1996). While this right is fundamental, it is not absolute.
The State may interfere with a parent‟s rights in certain circumstances. In re Angela E.,
303 S.W.3d at 250. Our legislature has listed the grounds upon which termination
proceedings may be brought. Tenn. Code Ann. § 36-1-113(g). Termination proceedings
are statutory, In re Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739
(Tenn. 2004), and a parent‟s rights may be terminated only where a statutory basis exists.
Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In the Matter of M.W.A., Jr., 980
S.W.2d 620, 622 (Tenn. Ct. App. 1998).
To terminate parental rights, a court must determine by clear and convincing
evidence the existence of at least 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
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “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 586, 596 (Tenn. 2010) (citations omitted).
Unlike the preponderance of the evidence standard, “[e]vidence satisfying the clear and
convincing standard establishes that the truth of the facts asserted is highly probable.” In
re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).
Once a ground for termination is established by clear and convincing evidence, the
trial court conducts a best interest analysis. In re Angela E., 303 S.W.3d at 251 (citing
3
In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)). “The best interest[ ] analysis
is separate from and subsequent to the determination that there is clear and convincing
evidence of grounds for termination.” Id. at 254. The existence of a ground for
termination “does not inexorably lead to the conclusion that termination of a parent‟s
rights is in the best interest of the child.” In re C.B.W., No. M2005-01817-COA-R3-PT,
2006 WL 1749534, at *6 (Tenn. Ct. App., filed June 26, 2006).
We are required to review all of the trial court‟s findings with respect to grounds
and best interest. In re Carrington, 483 S.W.3d 507, 525-26 (Tenn. 2016) (“[W]e hold
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 interest[ ], regardless of whether the parent challenges
these findings on appeal.”)
The Supreme Court has recently delineated our standard of 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). 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 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. 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. Additionally, all other
questions of law in parental termination appeals, as in other
appeals, are reviewed de novo with no presumption of
correctness.
Id. at 523-24 (internal citations omitted). “When a trial court has seen and heard
witnesses, especially where issues of credibility and weight of oral testimony are
involved, considerable deference must be accorded to . . . the trial court‟s factual
findings.” In re Adoption of S.T.D., No. E2007-01240-COA-R3-PT, 2007 WL 3171034,
4
at *4 (Tenn. Ct. App., filed Oct. 30, 2007) (citing Seals v. England/Corsair Upholstery
Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999)).
IV.
A.
Tenn. Code Ann. §36-1-113(g)(1) permits the termination of parental rights when
abandonment occurs as defined by Tenn. Code Ann. § 36-1-102(1). That statute provides
that abandonment by an incarcerated parent occurs when:
A parent . . . 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 . . . 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 . . . incarceration, or the parent . . . has engaged 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). Father had been incarcerated since January 2015
at the time DCS instituted a termination action against him in July 2015. Because Father
was incarcerated when the termination proceeding against him was initiated, the
definitions for abandonment under Tenn. Code Ann. § 36-1-102(1)(A)(iv) apply. As it
relates to this ground, the trial court found:
[Father] has abandoned the child in that . . . he willfully failed
to visit and to contribute to the support of the child for four
(4) consecutive months preceding incarceration. [Father] has
never visited [the child] or provided any support for him.
Additionally, [Father] has been repeatedly incarcerated for
charges including assault, resisting arrest, and theft of
property, and [Father] engaged in conduct prior to
incarceration that exhibits a wanton disregard for the welfare
of the child. [Father] was arrested on January 28, 2014 for
assault bodily harm, and [Father] pled guilty to that charge
February 11, 2014. [Father] was again arrested on March 31,
5
2014, for evading arrest and theft of property less than $500,
and [Father] pled guilty to those charges on April 1, 2014.
[Father] was again arrested on May 11, 2014 and served time
in jail after pleading guilty to aggravated assault/reckless
driving and intentionally evading arrest in an automobile on
January 21, 2015. On September 1, 2015, [Father] was
placed on an overnight hold in Germantown, Tennessee.
Most recently, [Father] was arrested on September 8 and 9,
2015 for domestic assault-bodily harm and two counts of theft
of property $500 or less. Family Service Worker Melissa
Justice first met with [Father] on April 13, 2015, at which
time[] [Father] informed her that he knew [Mother] was
pregnant with his son and they were naming him [M.] Ms.
Justice explained to [Father] the grounds that could result in
termination of [Father]‟s rights and presented him with a
document []titled “Criteria and Procedures for Termination of
Parental Rights.” [Father] refused to sign the Criteria and
Procedures for Termination of Parental Rights, and Ms.
Justice left [Father] a copy of the document for his records.
[Father] testified that he did not understand the document or
any of the other documentation provided to him by Ms.
Justice and believed that most of the documents dealt with
[Mother]. On August 7, 2015, Ms. Justice again visited
[Father] in jail, and at that meeting, [Father] changed his story
and denied knowing about [the child] until Ms. Justice‟s visit
in April 2015. [Father] was unable to request visitation upon
his release from jail in August 2015, because he was again
arrested on other charges in early September 2015. Despite
[Father]‟s testimony to the contrary, the Court makes a
specific finding that [Father] knew about the child‟s existence
from the time of his birth. (See Collective Exhibit 4, Criteria
and Procedures for Termination of Parental Rights refused by
[Father] and Affidavit of Efforts by Ms. Justice; Exhibit 7,
Certified Arrest Records for [Father]; and Exhibit 8, Certified
Criminal Records for [Father].)
Based on the above factual findings, the trial court held there was clear and convincing
evidence that Father abandoned the child due to his failure “to visit or support the child
for four months proceding [sic] incarceration and engaged in conduct prior to
incarceration that exhibited a wanton disregard for the welfare of the child.”
6
The evidence does not preponderate against the trial court‟s factual findings,
though we make one distinction. The trial court‟s finding that “[Father] informed [Ms.
Justice] that he knew [Mother] was pregnant with his son and they were naming him
[M.]” differs from Justice‟s own testimony that “He told me that he knew that [Mother]
was pregnant and that she had named the baby [M].” (Emphasis added.) Justice‟s
testimony does not explicitly indicate that Father told her he knew Mother was pregnant
with his son, only that he knew Mother was pregnant and what she had named the baby.
On appeal, Father denies that he could have abandoned the child pursuant to Tenn.
Code Ann. § 36-1-102(1)(A)(iv) because he did not learn the child was his biological son
until July 2015. We agree that the “wanton disregard language of Tenn. Code Ann. § 36-
1-102(1)(A)(iv) must be construed to require that the father has knowledge of the child at
the time his actions constituting wanton disregard are taken.” In re Anthony R., No.
M2014-01753-COA-R3-PT, 2015 WL 3611244, at *3 (Tenn. Ct. App., filed June 9,
2015). “[A] person cannot disregard or display indifference about someone whom he
does not know exists.” Id. Additionally, “ „[f]ailure 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 Aiden
W., No. E2013-01609-COA-R3-PT, 2014 WL 1682903, at *8 (Tenn. Ct. App., filed Apr.
28, 2014), appeal denied (July 14, 2014) (quoting In re Audrey S., 182 S.W.3d at 864)
(emphasis added). Therefore, to determine whether Father “abandoned” the child, we
first must determine when Father learned of the child.
At trial, Father disputed Justice‟s testimony that at the April 2015 meeting he
admitted to having had knowledge of Mother‟s pregnancy. However, we note that
when the resolution of the issues in a case depends upon the
truthfulness of witnesses, the trial judge who has the
opportunity to observe the witnesses in their manner and
demeanor while testifying is in a far better position than this
Court to decide those issues. See McCaleb v. Saturn Corp.,
910 S.W.2d 412, 415 (Tenn. 1995); Whitaker v. Whitaker,
957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The weight,
faith, and credit to be given to any witness‟s testimony lies in
the first instance with the trier of fact, and the credibility
accorded will be given great weight by the appellate court.
See id.; see also Walton v. Young, 950 S.W.2d 956, 959
(Tenn. 1997)).
7
State, Dep’t of Children’s Servs. v. Stinson, No. W2006-00749-COA-R3-PT, 2006 WL
3054604, at *10 (Tenn. Ct. App., filed Oct. 30, 2006). Here, the trial court‟s order stated
that “[d]espite [Father]‟s testimony to the contrary, the Court makes a specific finding
that [Father] knew about the child‟s existence from the time of his birth.” The evidence
does not preponderate against the trial court‟s finding that Father had known of the
child‟s existence for the entirety of the child‟s life. We will apply this factual finding.
Father argues no contradiction exists between his claim that he was unaware the
child was his son until he received the results of the DNA test and that he “could have
been vaguely aware that [Mother] was pregnant but not that he was the father.”
However, it is significant that Father had knowledge at all times that Mother was
pregnant following the conclusion of their multi-year romantic relationship. In the case
of In re Chandler M., No. M2013-02455-COA-R3-PT, 2014 WL 3586499, at *4 (Tenn.
Ct. App., filed July 21, 2014), we found grounds to terminate a father‟s parental rights
based on actions he took after learning of the mother‟s pregnancy. In Chandler, the
mother told the father that the child was actually fathered by another man. Id. Still, this
court found grounds to terminate the father‟s parental rights based on conduct he engaged
in after becoming “aware that Mother was pregnant after he had sex with her.” Id. In
that case, we held that
While Father was concerned enough to question if he was the
[c]hild‟s father, he made no further inquiries as to his
paternity after [m]other openly identified another man as the
[c]hild‟s father. Instead, Father continued in his destructive
behavior that demonstrated a “wanton disregard for his own
welfare much less that of the [c]hild.”
Id. (Citations omitted.) Here, regardless of when Father verified his parentage, he knew
Mother was pregnant after their romantic relationship ended. Therefore, for the ground
of abandonment, we will consider Father‟s conduct during the entirety of the child‟s life.
Tenn. Code Ann. § 36-1-102(1)(A)(iv) does not explicitly define wanton
disregard, though “[w]e have repeatedly held that probation violations, repeated
incarceration, criminal behavior, substance abuse, and the failure to provide adequate
support or supervision for a child can, alone or in combination, constitute conduct that
exhibits a wanton disregard for the welfare of a child.” In re Audrey S., 182 S.W.3d at
867-68 (citing State Dep’t of Children’s Servs. v. J.M.F., No. E2003-03081-COA-R3-
PT, 2005 WL 94465, at *7-8 (Tenn. Ct. App., filed Jan.11, 2005), perm. app. denied
(Tenn. Mar. 21, 2005)). “Parental conduct exhibiting wanton disregard for a child‟s
welfare may occur at any time prior to incarceration[.]” In re Kason C., No. M2013-
8
02624-COA-R3-PT, 2014 WL 2768003, at *5 (Tenn. Ct. App., filed June 17, 2014)
(citing State of Tenn., Dept. of Children’s Servs. v. Hood, 338 S.W.3d 917, 926 (Tenn.
Ct. App. 2009)). A parent‟s incarceration acts as a “triggering mechanism that allows the
court to take a closer look at the child‟s situation to determine whether the parental
behavior that resulted in incarceration is part of a broader pattern of conduct that renders
the parent unfit or poses a risk of substantial harm to the welfare of the child.” In re
Audrey S., 182 S.W.3d at 866.
Prior to Father‟s incarceration – which began on January 2015 – he had been
arrested several other times since the child‟s birth in July 2013. From December 2013 to
January 2015, he was arrested five times for the following charges – vandalism; assault
and bodily harm; driving while on a suspended license; disorderly conduct and evading
arrest; and aggravated assault, intent to evade arrest, reckless driving, driving while
license was suspended or revoked, and violation of financial law. As a result, he has
been in and out of incarceration for most of the child‟s life. “[I]ncarceration severely
compromises a parent‟s ability to perform his or her parental duties,” and therefore “ „[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 Jamazin H.M., No.
W2013-01986-COA-R3-PT, 2014 WL 2442548, at *9 (Tenn. Ct. App., filed May 28,
2014), appeal denied (Aug. 22, 2014) (quoting In re Audrey S., 182 S.W.3d at 866).
Although wanton disregard considers a parent‟s conduct prior to incarceration, we
also note that Father‟s behavior is part of a pattern of criminal conduct. His arrest record
from Shelby County indicates that by the time of trial, he had been arrested fifty (50)
times since 2004. This pattern continued in the months before the trial in this case.
Father was released from prison in September 2015, soon after he received confirmation
of his parentage. Within about a week of his release, he was incarcerated again following
charges of domestic assault and bodily harm and theft of property of $500 or less. Even
at trial, Father admitted that he had “smoked a little joint” about a month earlier and was
unsure if he could pass a drug test. He testified that, “my system should be clear now,
but I don‟t know.” For the reasons stated above, we hold that Father‟s repeated acts of
criminal – sometimes violent – behavior and multiple incarcerations during a time period
when he knew of the child‟s existence establish, clearly and convincingly, that he
abandoned the child by acting with a wanton disregard for the child‟s welfare.
In addition to “wanton disregard,” Tenn. Code Ann. § 36-1-102(1)(A)(iv) provides
two other definitions for what conduct by an incarcerated parent constitutes abandonment
– willful failure to visit or willful failure to support the child for four consecutive months
immediately preceding such parent’s incarceration. A parent‟s abandonment for failure
to visit or support must be willful. Tenn. Code Ann. § 36-1-102(1)(A)(iv). “Whether a
9
parent failed to visit or support a 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
Aiden W., 2014 WL 1682903, at *8 (internal citation and quotation marks omitted).
It is undisputed that Father has paid no financial support for the child, nor has he
ever given the child clothing, gifts, or other items. Tenn. Code Ann. § 36-1-102(1)(H)
states that “Every parent who is eighteen (18) years of age or older is presumed to have
knowledge of a parent‟s legal obligation to support such parent‟s child[.]” Father was
born in June 1986. He has been older than the age of eighteen for all of the child‟s life.
Therefore, he is presumed to have known of his duty to support his child. Still, he failed
to do so. He testified that he did not know how to get items to the child. At trial, Father
testified about his expenses and income. After being released from incarceration in
November 2015, Father moved into a halfway house. By the time of trial, he was living
with his mother. When asked at trial if he paid rent there he responded, “I pay some, but
not the full amount.” Father stated he earns income by taking odd jobs – cutting grass,
“raking yards or detailing cars.” He is not otherwise employed. He estimates he earned
$200 in the month before trial. As far as his other expenses, Father pays $10 a month for
his cellular phone bill and spends around $180 each month on groceries using food
stamps. He has no car, instead relying on “[f]amily support” for transportation.
It is undisputed that at no point has Father visited the child. Ms. Justice testified
that at times, Father had asked her “how his child was doing,” but that he did not request
visitation until the day before trial in February 2016. Ms. Justice testified that when she
first met with Father in April 2015, “[w]e went over the permanency plan and I told him
all of his action steps that were on the plan. And we went over the criteria and
procedures for termination of parental rights.” She testified that Father refused to sign
these documents, which she recorded on the same. Ms. Justice testified that “I explained
the documents to him and the jail guard signed as my witness.” Ms. Justice also recorded
her efforts to acquire Father‟s signature on the criteria and procedures for termination of
parental rights in an Affidavit of Efforts. Under Tenn. Code Ann. § 37-2-403(B)(ii)(b):
(ii) If the parents . . . of the child cannot be given notice to
appear at the court review of the permanency plan, or if they
refuse or fail to appear at the court review of the permanency
plan, or cannot be found to provide notice for the court
review of the permanency plan, any agency that holds
custody of the child in foster care or in any other type of care
and that seeks to terminate parental . . . rights based upon
abandonment of that child under § 36-1-102, shall not be
precluded from proceeding with the termination based upon
10
the grounds of abandonment, if the agency demonstrates at
the time of the termination proceeding:
* * *
(b) By an affidavit, that the child’s permanency plan
containing language that describes the criteria for
establishing abandonment under § 36-1-102 was presented by
the agency party to the parents or guardians at any time prior
to filing the termination petition, or that there was an attempt
at any time to present the plan that describes the criteria for
establishing abandonment under § 36-1-102 to the parents . . .
at any time by the agency party, and that such attempt was
refused by the parents[.]
(Emphasis added.) DCS met this obligation by meeting with Father and explaining to
him the criteria and procedures to terminate parental rights and the permanency plan prior
to filing the termination petition, and by memorializing those actions in an affidavit.
Despite knowing of the child, Father made no efforts to provide support, visit the
child, or attempt to establish a relationship of any sort. Once DCS learned of Father‟s
identity in March or April of 2015, they met with him to explain the permanency plan, his
related action steps, and the criteria and procedures for terminating parental rights. He
refused to sign these documents. DCS also arranged for Father to take a paternity test.
At no point – including the four month period prior to his January 2015 incarceration –
did Father make any effort to pay any sort of financial support for the child or give gifts
of any sort. This continued even after he obtained the contact information for Ms.
Justice, the DCS caseworker for the child‟s case. Additionally, at no point – including
the four month period prior to his January 2015 incarceration – did Father visit the child.
He did not request a visit with the child until the day before the February 2016 trial, at
which time the child was approximately two-and-a-half years old. Based on this
evidence, we find there is clear and convincing evidence that Father abandoned the child
for willful failure to visit and failure to support, pursuant to Tenn. Code Ann. § 36-1-
102(1)(A)(iv).
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B.
The trial court held that clear and convincing evidence exists to terminate each
parent‟s rights based on persistence of conditions. Under Tenn. Code Ann. § 36-1-
113(g)(3), termination of parental rights is authorized when:
The child has been removed from the home of the parent . . .
by order of a court for a period of six (6) months and:
(A) The conditions which led to the child‟s
removal or other conditions which in all
reasonable probability would cause the child to
be subjected to further abuse or neglect and
which, therefore, prevent the child‟s safe return
to the care of the parent(s) . . . still persist;
(B) There is little likelihood that these
conditions will be remedied at an early date so
that the child can be safely returned to the
parent(s) . . . in the near future; and
(C) The continuation of the parent or guardian
and child relationship greatly diminishes the
child‟s chances of early integration into a safe,
stable and permanent home.
(Emphasis added.) However, on appeal, DCS concedes that the dependency and neglect
order in the record only removed the child from Mother‟s custody, not Father‟s. DCS
further concedes that because the child was not removed from Father‟s custody by court
order, this ground is “inapplicable.” Based on the plain meaning of the language in Tenn.
Cod Ann. § 36-1-113(g)(3), we agree. In re K.M.K., No. E2014-00471-COA-R3-PT,
2015 WL 866730, at *7 (Tenn. Ct. App., filed Feb. 27, 2015) (holding, in part, that where
“the [c]hildren were not removed from [f]ather‟s home . . . the ground of persistence of
conditions is not applicable to [f]ather”); In re Maria B.S., No. E2012-01295-COA-R3-
PT, 2013 WL 1304616, at *11 (Tenn. Ct. App., filed Apr. 1, 2013) (holding, in part, that
“[t]here is case precedent to support [f]ather‟s position that, without removal from that
parent‟s home, the ground of persistent conditions is inapplicable”). Therefore, we hold
that the evidence preponderates against the trial court‟s finding that a ground exists to
terminate Father‟s parental rights for failure to remedy persistent conditions. We modify
12
the order of the trial court to delete termination based on the ground of persistence of
conditions.
V.
After finding a statutory ground warrants termination of Father‟s parental rights,
we now consider whether the termination is in the child‟s best interest. When
considering the issue of “best interest,” we are guided by the following statutory factors
set forth in Tenn. Code Ann. § 36-1-113(i):
(1) Whether the parent . . . has made such an adjustment of
circumstance, conduct, or conditions as to make it safe and in
the child‟s best interests to be in the home of the parent or
guardian;
(2) Whether the parent . . . has failed to effect a lasting
adjustment after reasonable efforts by available social
services agencies for such duration of time that lasting
adjustment does not reasonably appear possible;
(3) Whether the parent . . . has maintained regular visitation
or other contact with the child;
(4) Whether a meaningful relationship has otherwise been
established between the parent . . . and the child;
(5) The effect a change of caretakers and physical
environment is likely to have on the child‟s emotional,
psychological and medical condition;
(6) Whether the parent . . . , or other person residing with the
parent . . . , has shown brutality, physical, sexual, emotional
or psychological abuse, or neglect toward the child, or
another child or adult in the family or household;
(7) Whether the physical environment of the parent‟s . . .
home is healthy and safe, whether there is criminal activity in
the home, or whether there is such use of alcohol, controlled
substances or controlled substance analogues as may render
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the parent . . . consistently unable to care for the child in a
safe and stable manner;
(8) Whether the parent‟s . . . mental and/or emotional status
would be detrimental to the child or prevent the parent . . .
from effectively providing safe and stable care and
supervision for the child; or
(9) Whether the parent . . . has paid child support consistent
with the child support guidelines promulgated by the
department pursuant to § 36-5-101.
“The above list is not exhaustive[,] and there is no requirement that all of the factors must
be present before a trial court can determine that termination of parental rights is in a
child‟s best interest.” State Dep’t of Children’s Servs. v. B.J.N., 242 S.W.3d 491, 502
(Tenn. Ct. App. 2007) (citing State Dep’t of Children’s Servs. v. P.M.T., No. E2006-
00057-COA-R3-PT, 2006 WL 2644373, at *9 (Tenn. Ct. App., filed Sept. 15, 2006)).
In the present action, the trial court‟s February 15, 2016 order terminating the
parental rights of Father held, by clear and convincing evidence, that termination of his
parental rights was in the best interest of the child. The trial court found:
Pursuant to T.C.A. § 36-1-113(i)(1), [Father] has not made an
adjustment of circumstance, conduct, or condition as to make
it safe and in the child‟s best interest to be in his home.
[Father] has been in and out of jail for the majority of [the
child]‟s life, and although he has been out of jail for the past
three months, that does not show a lasting adjustment of
circumstances. [Father] has not shown any ability to parent
[the child].
Pursuant to T.C.A. § 36-1-113(i)(2), [Father] has failed to
effect a lasting adjustment after reasonable efforts by the
Department to the extent that lasting adjustment does not
reasonably appear possible. [Father] has been in and out of
jail during his short life, and the Department has done what it
could to assist [Father], but he is not in a position to care for
[the child] at this time.
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Pursuant to T.C.A. § 36-1-113(i)(3), [Father] has never
visited [the child].
Pursuant to T.C.A. § 36-1-113(i)(4), [Father] has no
meaningful relationship with the child.
Pursuant to T.C.A. § 36-1-113(i)(5), a change of caretakers
and physical environment would have a negative effect on the
child‟s emotional, psychological, and medical condition.
[Father] has no knowledge of [the child]‟s special medical
needs of severe eczema and possible asthma or how to care
for his basic needs.
Pursuant to T.C.A. § 36-1-113(i)(6), [Father] has shown
brutality toward adults as shown by his arrests for assault.
Pursuant to T.C.A. § 36-1-113(i)(7), there is criminal activity
in [Father]‟s home as shown by his arrests for assault,
resisting arrest, and theft.
Pursuant to T.C.A. § 36-1-113(i)(8), [Father]‟s mental and
emotional status would be detrimental to the child and
prevent him from providing safe and stable care and
supervision for the child. [Father] reported that he probably
could not pass a drug test on the day of the hearing and he
would likely fail for marijuana. [Father] has also had several
charges for assault against adults.
Pursuant to T.C.A. § 36-1-113(i)(9), [Father] has paid no
child support for the child in accordance with the child
support guidelines.
(Lettering in original omitted.) As to the child‟s current placement, the court found he
has resided with foster parent J.H. and her husband, M.H., since September 9, 2013. The
court stated in its order, “[J.H.] reported that [the child] calls [her] „mom‟ and [M.H.]
„dad.‟ [They] have three other children, whom [the child] considers his siblings.” The
court also found the child “has severe eczema, allergies, and possibly asthma. He is
currently on medication for allergies and the possible asthma.” The evidence does not
preponderate against the trial court‟s findings as it relates to the child‟s best interest or
current placement.
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In his brief, Father argues that after his release from incarceration, he did not have
time “to accomplish several of the factors” in the best interest analysis. For instance, he
argues that he did not have adequate time to make a “lasting adjustment” or “establish a
meaningful relationship” with the child before the trial. But by the trial date, the child
was two-and-a-half years old. Father had known of the child for all of the child‟s life.
Still, he never visited or contacted him. Father had spent the years since the child‟s birth
engaging in criminal behavior that resulted in multiple incarcerations, including once for
assault against another family member in the home where Father was residing.
Father argues that Tenn. Code Ann. § 36-1-113(i)(9) “should not be considered in
a best interest analysis since there is no order for child support consistent with Tenn.
Code Ann. § 36-5-101.” We disagree. As we stated, pursuant to Tenn. Code Ann. § 36-
1-102(1)(H), Father, being over eighteen years of age, “is presumed to have knowledge
of a parent‟s legal obligation to support” his child. Despite knowing of the child and of
his duty to support, he failed to pay support at any time.
Ms. Justice testified that she discussed visitation with Father in going over the
permanency plan and criteria and procedures for termination of parental rights. She
testified that if Father had requested to visit the child while he was incarcerated she
“would have arranged it.” Father argues that DCS‟s effort to facilitate visitation between
Father and the child “was lacking.” However, Father did not attempt visitation until the
day before trial. “[R]eunification of a family is a two-way street, and the law does not
require DCS to carry the entire burden of this goal.” Stinson, 2006 WL 3054604, at*15.
We note that “[t]he child‟s best interest must be viewed from the child‟s, rather
than the parent‟s, perspective.” In re Marr, 194 S.W.3d at 499 (citation omitted). We
find it very compelling that the child has lived in the same foster home for nearly all of
his life. He calls his foster parents “mom” and “dad.” In the same home, there are other
children who the child considers to be his siblings. His foster parents are familiar with
his medical needs and treatment. Alternatively, Father and the child have never met.
Their only bond is a biological one. The evidence does not preponderate against the
court‟s finding that “a change of caretakers and physical environment would have a
negative effect on the [C]hild[.]” For these reasons, we conclude, as a matter of law, the
evidence clearly and convincingly establishes that termination of Father‟s parental rights
is in the child‟s best interest.
VI.
The judgment of the trial court is affirmed as modified. We modify the order only
to vacate the holding that termination was proper under Tenn. Code Ann. § 36-1-
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113(g)(3), failure to remedy persistent conditions. The costs on appeal are assessed to the
appellant, M.G.H. This case is remanded for enforcement of the trial court‟s judgment,
as modified, and for collection of costs assessed by the trial court.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
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