In Re Deciandra M. ( 2011 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 15, 2011 Session
IN RE DECIANDRA M., ET AL.1
Appeal from the Juvenile Court for Williamson County
No. 27423 Alfred L. Nations, Judge
No. M2010-02006-COA-R3-PT - Filed May 4, 2011
Mother and Father appeal the termination of their parental rights to four children. Father’s
rights were terminated on grounds of abandonment by failure to visit the children within four
months prior to the filing of the petition and wanton disregard for the children’s safety based
on his criminal history; Mother’s rights were terminated on grounds of severe child abuse,
substantial noncompliance with permanency plans, and persistence of conditions. Finding
no error, we affirm the trial court’s judgment.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed
R ICHARD H. D INKINS, J., delivered the opinion of the court, in which A NDY D. B ENNETT, J.,
and J ERRY L. S MITH, SP. J., joined.
Christina Ferrell Daugherty, Franklin, Tennessee, for the appellant, Crystal S.
Francis King, Nashville, Tennessee, for the appellant, Lavondal M.
Robert H. Plummer, Jr., Franklin, Tennessee, as Guardian Ad Litem.
Robert E. Cooper, Jr., Attorney General and Reporter, and Alexander S. Rieger, Nashville,
Tennessee, for the appellee, Tennessee Department of Children’s Services.
1
This Court has a policy of protecting the identity of children in parental termination cases by
initializing the last names of the parties.
OPINION
I. Factual and Procedural History
The Department of Children’s Services (“DCS”) instituted this proceeding to
terminate parental rights to four children on September 9, 2009. The children were originally
placed in DCS custody on October 20, 2008 pursuant to an emergency custody order
following an automobile accident. Mother was driving a car containing one other adult and
five children; the children were not properly restrained.2 Mother ran a stop sign and collided
with a truck; the adult and one child were killed and Mother and the other children seriously
injured. On June 9, 2009, the Juvenile Court declared the children dependent and neglected;
Mother appealed that ruling to the Circuit Court and the appeal was pending at the time the
proceeding to terminate parental rights was initiated.
The first permanency plan was created on November 8, 2008 and ratified by the court
on January 26, 2009; a revised plan of May 1, 2009 was ratified on July 7. Mother
participated in the development of each plan and her objections to portions of the plans were
heard and overruled by the court when the plans were ratified. At the time the children were
placed into DCS custody, Father was incarcerated on a probation violation; the underlying
offenses were aggravated burglary and possession of marijuana for resale.
Following a three day trial the court entered an order terminating Father’s rights on
the grounds of abandonment by failure to visit the children within four months prior to the
filing of the petition (Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-102(1)(A)(i)) and
wanton disregard for the children’s safety based on his criminal history (Tenn. Code Ann.
§ 36-1-102(1)(A)(iv)). Mother’s rights were terminated on grounds of severe child abuse
(Tenn. Code Ann. § 37-1-102(b)(23)); substantial noncompliance with permanency plans
(Tenn. Code Ann. §§ 36-1-113(g)(2) and 37-2-403(a)(2)); and persistence of conditions
(Tenn. Code Ann. § 36-1-113(g)(3)). Mother and Father appeal.
Mother articulates the following issues for resolution:
1. Whether the Juvenile Court erred by denying Appellant’s Motion in
limine to stay the proceedings of the Juvenile Court or transfer of the
case to Circuit Court to simultaneously consider the Petition to
Terminate Parental Rights and for Full Guardianship as well as the
2
Mother had been involved in a previous accident in April 2008, again involving children who were
not appropriately restrained. No one was seriously injured. After the accident she received restraint seats
from DCS.
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appeal from the Juvenile Court Referee’s finding that the children were
abused and neglected children.
2. Whether the Juvenile Court erred in finding that Mother has committed
severe child abuse upon the children pursuant to Tenn. Code Ann.
Section 37-1-102(b)(23).
3. Whether the Juvenile Court erred in finding that Mother is in
substantial noncompliance with the permanency plans.
4. Whether the Juvenile Court erred in finding that the Department of
Children’s Services made reasonable efforts to reunite the Mother with
the children.
5. Whether the Juvenile Court erred in determining that the conditions that
led to the removal of the children and other issues which have arisen
since the children were placed in custody continue to persist as to
Mother.
6. Whether the Juvenile Court erred by finding that it is in the children’s
best interests for Mother’s parental rights to be terminated.
Father raises the following issues:
1. Did the evidence at trial establish a ground for the termination of
Miller’s parental rights based on abandonment predicated on his
allegedly willful failure to maintain regular visitation with his children
during the four months immediately preceding the filing of the petition
in this case?
2. Did the evidence at trial establish a ground for the termination of
Miller’s parental rights based on wanton disregard predicated on
Miller’s criminal history?
II. Standard of Review
A parent has a fundamental right to the care, custody, and control of his or her child.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170,
174 (Tenn. 1996). Thus, the state may interfere with parental rights only if there is a
compelling state interest. Nash-Putnam, 921 S.W.2d at 174–75 (citing Santosky v. Kramer,
455 U.S. 745 (1982); Hawk v. Hawk, 855 S.W.2d 573, 579 (1993). Our termination statues
identify “those situations in which the state’s interest in the welfare of a child justifies
interference with a parent’s constitutional rights by setting forth grounds on which
termination proceedings can be brought.” In re W.B., IV, No. M2004-00999-COA-R3-PT,
2005 WL 1021618, at *7 (Tenn. Ct. App. April 29, 2005) (citing Tenn. Code Ann. § 36-1-
113(g)). To support the termination of parental rights, petitioners must prove both the
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existence of one of the statutory grounds for termination and that termination is in the child’s
best interest. In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d
539, 546 (Tenn. 2002); Tenn. Code Ann. § 36-1-113(c).
Because of the fundamental nature of the parent’s rights and the grave consequences
of the termination of those rights, courts must require a higher standard of proof in deciding
termination cases. Santosky, 455 U.S. at 769; Matter of M.W.A., Jr., 980 S.W.2d 620, 622
(Tenn. Ct. App. 1998). Thus, both the grounds for termination and the best interest inquiry
must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1);
In re Valentine, 79 S.W.3d at 546. Clear and convincing evidence “establishes that the truth
of the facts asserted is highly probable . . . and eliminates any serious or substantial doubt
about the correctness of the conclusions drawn from the evidence.” In re M.J.B., 140 S.W.3d
643, 653 (Tenn. Ct. App. 2004). Such evidence “produces in a fact-finder’s mind a firm
belief or conviction regarding the truth of the facts sought to be established.” Id.
In light of the heightened standard of proof in these cases, the reviewing court must
adapt the customary standard of review set forth by Tenn. R. App. P. 13(d). In re M.J.B., 140
S.W.3d at 654. As to the court’s findings of fact, our review is de novo with a presumption
of correctness unless the evidence preponderates otherwise, in accordance with Tenn. R.
App. P. 13(d). Id. We must then determine whether the facts, as found by the trial court or
as supported by the preponderance of the evidence, clearly and convincingly establish the
elements necessary to terminate parental rights. Id.
III. Analysis
A. Termination of Mother’s Parental Rights
1. Mother’s motion to stay proceedings
Mother contends that the trial court erred in denying her motion to stay the termination
proceedings pending the completion of her appeal of the juvenile court’s finding that the
children were dependent and neglected or, alternatively, to transfer the termination case to
the circuit court “for consideration of all issues.” While she acknowledges that dependent
and neglect proceedings are separate and distinct from proceedings to terminate parental
rights, she argues that going forward with the hearing on the petition to terminate her parental
rights deprived her of at least two more months of contact with the children and that this
additional contact would have allowed her to improve her parenting skills, thereby complying
with the permanency plans at issue in the termination case.
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Proceedings to terminate parental rights are carried out pursuant to Chapter 1 of Title
36, Tenn. Code Ann. § 36-1-101, et seq.; proceedings to have children declared dependent
and neglected are conducted in accordance with Chapter 1 of Title 37, Tenn. Code Ann. §
37-1-101, et seq. Consistent with the separate codification, the statutes have different
purposes and objectives. Title 36 pertains to domestic relations generally, with the statutes
governing termination of parental rights included as part of Chapter 1, governing adoption;
the purposes of Part 1 are set forth at Tenn. Code Ann. § 36-1-101. In contrast, Title 37
governs proceedings in juvenile courts, which include proceedings allowing the court to
determine whether a child is dependent and neglected, as defined at § 37-1-102(b)(12) and,
if so, to determine the appropriate disposition of the child. See Tenn. Code Ann. § 37-1-
128–129.
As noted, the termination of Mother’s rights was based on findings of severe child
abuse, substantial noncompliance with permanency plans and persistence of conditions. In
its order terminating parental rights, the court did not rely on any finding or order entered in
the dependent and neglect proceeding3 and there is nothing in the record to indicate that
going forward with the hearing on termination of her parental rights in any way deprived
Mother of the de novo review, in the circuit court, of the finding that the children were
dependent and neglected. Given the difference in the nature and purposes of the
proceedings, the court did not err in denying Mother’s motion.4
2. Finding of severe child abuse
Tenn. Code Ann. § 37-1-102(b)(23)(A) defines “severe child abuse” in pertinent part
as follows:
3
In its order, the court stated:
The Department’s grounds for termination of parental rights as to Mother include Severe
Abuse by Mother upon the children. As Mother has appealed the adjudication and
disposition of the underlying Dependency/Neglect Petition alleging severe abuse, the
Magistrate’s finding of severe abuse is not final. Therefore, the basis of the ruling that
Mother has committed severe child abuse upon the children must be proven anew in this
matter by the Department.
The court then proceeded to make factual findings based on evidence in the record that Mother had
committed severe child abuse, as defined by Tenn. Code Ann. § 37-1-102(b)(23).
4
Much of Mother’s argument is based on the proposition that staying the termination proceeding
or consolidating it with the dependency and neglect proceeding would have allowed her additional time to
establish her compliance with the permanency plans. We will discuss the court’s finding that she did not
substantially comply with the permanency plan later in this opinion.
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(A) The knowing exposure of a child to or the knowing failure to protect a
child from abuse or neglect that is likely to cause great bodily harm or death
and the knowing use of force on a child that is likely to cause great bodily
harm or death;
Tenn. Code Ann. § 37-1-102(b)(23)(A). In its order, the court held:
Mother’s actions and inactions resulted in a serious automobile
accident, in which all the children received life-threatening injuries. Mother
had been involved in a previous automobile accident in April, 2008, at which
time she was cited for violations of the child restraint laws and was made
aware of the purpose and the requirements of the law at that time. Mother
knew or reasonably should have known of her duty to comply with the law,
and of the law’s requirements and purpose for the usage of child restraint seats.
Mother was provided safety seats by the Department but did not properly use
them, as three of the children were not restrained properly at the time of the
October, 2008 accident. Mother’s negligence caused the October, 2008
accident, as Mother ran a clearly visible stop sign and stop signal, making
contact with a moving tractor trailer. On October 20, 2008, Mother violated
the agreement she had made with the department to have certain of her
children in the care of Norma Barker, her grandmother, and ignored warnings
of Mrs. Barker that Mother could not place five children safely and lawfully
in Mother’s vehicle, stating that she “did it all the time.”
Mother does not dispute the factual findings of the court, which are fully supported
by the record. Construing the statute as requiring findings that she knowingly exposed the
children to bodily harm and knowingly used force on the children, Mother argues that the
record does not support the trial court’s finding that Mother committed severe child abuse.
We decline to construe the statute in the manner suggested by Mother.
This court’s function in construing a statute is “to ascertain and give effect to the
intention and purpose of the legislature.” LensCrafters, Inc., v. Sundquist, 33 S.W.3d 772,
777 (Tenn. 2000); see also Carson Creek Vacation Resorts, Inc. v. Dept. Of Revenue, 865
S.W.2d 1, 2 (Tenn. 1993); Exxonmobil Oil Corp. v. Metro. Gov’t of Nashville and Davidson
County, 246 S.W.3d 31, 35 (Tenn Ct. App. 2005); McGee v. Best, 106 S.W.3d 48, 64 (Tenn.
Ct. App. 2002). To determine legislative intent, one must look to the natural and ordinary
meaning of the language used in the statute itself. We must examine any provision within
the context of the entire statute and in light of its over-arching purpose and the goals it
serves. State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000); Cohen v. Cohen, 937 S.W.2d
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823, 828 (Tenn. 1996); Exxonmobil, 246 S.W.3d at 35; T.R. Mills Contractors, Inc. v. WRH
Enterprises, LLC, 93 S.W.3d 861, 867 (Tenn. Ct. App. 2002). The statute should be read
“without any forced or subtle construction which would extend or limit its meaning.” Nat’l.
Gas Distributors, Inc. v. State, 804 S.W.2d 66, 67 (Tenn. 1991). As our Supreme Court has
said, “[w]e must seek a reasonable construction in light of the purposes, objectives, and spirit
of the statute based on good sound reasoning.” Scott v. Ashland Healthcare Ctr., Inc., 49
S.W.3d 281, 286 (Tenn. 2001) (citing State v. Turner, 913 S.W.2d 158, 160 (Tenn. 1995)).
We are “required to construe a statute, or set of statutes, ‘so that the component parts are
consistent and reasonable.’” and our duty is “to interpret a statute in a manner that makes no
part inoperative.” In re Shelby L. B., M2010-00879-COA-R9-PT, 2011 WL 1225567, at *5
(Tenn. Ct. App. Mar. 31, 2011) (citations omitted).
Taking the statute as a whole, and consistent with the general purpose of Chapter 1
of Title 37 to “[p]rovide for the care, protection . . . of children,” it is clear that the word
“and” in § 37-1-102(b)(23)(A) is not used in the conjunctive, i.e., that both knowing
exposure or failure to protect as well as a knowing use of force must be present in order to
find “severe child abuse.” See Tenn. Code Ann. § 37-1-101(a)(1). Rather, a reasonable
construction of the statute is that a finding of either will satisfy the statutory definition. This
is clear because the “knowing use of force . . . likely to cause great bodily harm or death”
referenced in the second clause of the statute by its very nature constitutes knowingly
exposing a child or failing to protect a child “from abuse or neglect . . . likely to cause great
bodily harm or death” as referenced in the first clause. To hold otherwise would be to render
the second clause of § 37-1-102(b)(23)(A) inoperative.
As noted above, Mother does not dispute the factual findings of the court regarding
her knowledge of the requirements of the child restraint law and her duty to comply with it,
her negligence in causing the October 2008 accident, her disregard of the agreement with
DCS that two of her children would be in the care of Norma Barker, and her disregard of Ms.
Barker’s warnings. Under the facts presented, Mother knowingly exposed her children to
neglect which did, in fact, result in the death of one child and bodily harm to the others. Her
conduct constituted “severe child abuse” as contemplated by Tenn. Code Ann. § 37-1-
102(b)(23)(A).
3. Finding of substantial noncompliance with the permanency plans
The juvenile court found that Mother was not in substantial compliance with the
permanency plan requirements in failing to participate in family or individual counseling,
attend AA meetings, obtain proper and safe housing or obtain legal income. In her brief,
Mother argues that “although the Court may find that she did not comply with all of the
requirements of the plan, such noncompliance was not substantial based upon her degree of
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noncompliance and the irrelevance of the terms with which she may have failed to comply.”
Giving due respect to Mother’s arguments, her compliance or noncompliance with the
several requirements of the plans must be viewed in the context of the entire plan.
The determination that each requirement was reasonable and related to remedying the
circumstances which led to the children’s removal is the starting point to determine whether
she was in substantial non-compliance with the plans. The trial court found, and we agree,
that the requirements of the permanency plan were reasonable and related to addressing the
conditions which led to the children’s removal. The primary goal of the permanency plan
for each child was “return to parent” and the testimony was that each requirement of the plan
was related to a specific area of concern or need presented. In addressing the issue of
Mother’s compliance, therefore, we do not view each requirement in isolation, as suggested
by Mother, but consider how compliance with each specific requirement achieved
compliance with the overall objectives of the permanency plan.
Mere technical noncompliance by itself is not sufficient to justify the termination of
parental rights; in order for noncompliance to justify the termination of parental rights, it
must be “substantial.” In re S.H., No. M2007-01718-COA-R3-PT, 2008 WL 1901118, at *7
(Tenn. Ct. App. Apr. 30, 2008) (no Tenn. R. App. P.11 application filed). Noncompliance
with requirements in a permanency plan that are neither reasonable nor related to remedying
the conditions that led to the removal of the child from the parent’s custody is not relevant
for purposes of Tenn. Code Ann. § 36-1-113(g)(2). Id. (citing In re Valentine, 79 S.W.3d
at 548–49). In addition, the parent’s degree of noncompliance with a reasonable and related
requirement must be assessed. Id.
The individual and family counseling were intended to address the grief and trauma
caused by the automobile accident, which resulted in the death of one child and substantial
injuries to Mother and the other children. The need for alcohol assessment and counseling
was indicated by the testimony of the investigating officer of the October 2008 accident, who
testified as to the amount of alcohol Mother acknowledged consuming during the twenty-four
hours prior to the accident. With regard to Mother’s housing situation, testimony by the
children’s case worker was that, after Mother was released from the hospital after the
October 2008 accident, she moved around and was sometimes unavailable; as a consequence,
the requirement that Mother secure safe and stable housing was added to the permanency
plan.
The trial court found, and Mother concedes, that she did not participate in individual
counseling; Mother’s sole reason for not participating is that she did not feel it was
necessary. Mother’s individual counseling, however, was to complement family counseling -
in which Mother had participated - to address grief and trauma associated with the
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automobile accident. Mother acknowledges that she did not attend AA meetings as required
in the permanency plans. She contends that she quit drinking in January 2009 after having
a dream in which God told her that she would go to jail if she did not quit drinking and that
she did not attend more AA meetings because she was told by other AA members that she
did not need to attend because she quit drinking. The case worker testified further that, at
the time of trial, Mother was living with her boyfriend in a two bedroom apartment on a
week-to-week lease in the boyfriend’s name but that the apartment was not large enough for
the four children to be returned to Mother.5 The testimony of Mother with regard to these
specific areas was consistent with her testimony that she had a distrust of “the system” based
on her interaction with DCS and authorities.
Mother’s lack of compliance with the requirements of the permanency plans identified
by the trial court was, in light of the purpose of each requirement and the overall objectives
of the plan, substantial.6
4. DCS’ efforts at reunification
DCS employees have an affirmative duty to utilize their education and training to
assist parents in a reasonable way to address the conditions that led to the child’s removal and
to complete the tasks stated in the plan. In re Giorgianna H., 205 S.W3d 508, 519 (Tenn.
Ct. App. 2006); In re J.L.E., No. M2004-02133-COA-R3-PT, 2005 WL 1541862, at *14
(Tenn. Ct. App. June 30, 2005); In re C.M.M., No. M2003-01122-COA-R3-PT, 2004 WL
438326, at *7 (Tenn. Ct. App. Mar. 9, 2004); In re D.D.V., No. M2001-02282-COA-R3-JV,
2002 WL 225891, at *8 (Tenn. Ct. App. Feb. 14, 2002). Reasonable efforts are statutorily
defined as the “exercise of reasonable care and diligence by the department to provide
services related to meeting the needs of the child and family.” Tenn. Code Ann. § 37-1-
166(g)(1). The factors courts are to use in determining reasonableness include:
(1) the reasons for separating the parents from their children, (2) the parents’
physical and mental abilities, (3) the resources available to the parents, (4) the
parents’ efforts to remedy the conditions that required the removal of the
5
The case worker testified that Mother stated at the Foster Care Review Board meeting that she
didn’t feel comfortable having a lease in her own name because every time she got something “it end[ed] up
being taken away.”
6
Mother also contends that for each area in which the court found her to be non-compliant, the court
did not make a specific finding as to the relationship between the requirement and the reason the children
were brought into custody. In light of the fact that the permanency plans were developed in consultation with
Mother and ratified by the court, it was not necessary for the court to make the findings suggested by Mother
as part of its determination of Mother’s compliance with the plan.
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children, (5) the resources available to the Department, (6) the duration and
extent of the parents’ efforts to address the problems that caused the children’s
removal, and (7) the closeness of the fit between the conditions that led to the
initial removal of the children, the requirements of the permanency plan, and
the Department’s efforts.
In re Tiffany B., 228 S.W.3d 148, 158–59 (Tenn. Ct. App. 2007) (citing In re Giorgianna H.,
205 S.W.3d at 519). The reasonableness of the Department’s efforts depends upon the
circumstances of the particular case. In re Giorgianna H., 205 S.W.3d at 519.
In this case, DCS was faced with the considerable challenge of assisting Mother in
reuniting with four children of diverse ages and needs. The record shows that Mother could
accomplish tasks with which she agreed but resisted or had excuses for not accomplishing
those with which she did not; the efforts expended by DCS were not the determining factor.
Mother’s argument that “if the court found that she was in substantial noncompliance with
any of the actions identified by the Juvenile Court, then the Court should further find that
DCS did not make reasonable efforts” at reunification is unavailing. The record clearly and
convincingly shows that the DCS workers were conscientious and concerned. As noted
above, the primary goal of each child’s plan was reunification. Each permanency plan
recognized Mother’s strengths and the efforts expended by DCS addressed specific areas of
concern or need. Tenn. Code Ann. § 37-1-166(g)(1) provides that the health and safety of
the child is to be the “paramount concern” in making the determination of reasonable efforts.
In consideration of the factors we are to take into account in determining this issue and in
light of the “paramount concern” to be given the health and safety of the children, we agree
with the trial court that the Department’s efforts were reasonable.
5. Persistence of conditions
Tenn. Code Ann. § 36-1-113(g)(3) provides as a ground for termination of parental
rights:
The child has been removed from the home of the parent or guardian by order
of a court for a period of six (6) months and:
(A) The conditions that led to the child's removal or other conditions
that in all reasonable probability would cause the child to be subjected to
further abuse or neglect and that, therefore, prevent the child's safe return to
the care of the parent(s) or guardian(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) or
guardian(s) in the near future; and
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(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;
Tenn. Code Ann. § 36-1-113(g)(3). Mother contends that the trial court erred in finding that
the conditions which led to the removal of the children from her custody persisted and
constituted a ground for termination, as authorized by the statute. While Mother does not
specifically take issue with the court’s findings that she continued to fail to properly restrain
the children in the car and that during visitation periods with the children she behaved
inappropriately, had little positive interaction with the children, and failed to implement
parenting skills, she asserts that the evidence does not satisfy the statutory requirements.
Taken as a whole, the evidence shows that Mother’s situation had not appreciably
changed since the children were placed in DCS custody and the prospects for her making the
changes in her life necessary to provide a stable, healthy, and safe environment for the
children were not promising. While the parenting plans acknowledge Mother’s affection for
the children, the testimony of Dr. Jillian Sanborne, permanency clinician with Family and
Children’s Services, who was engaged by DCS to conduct grief and trauma counseling for
Mother’s oldest daughter, intensive counseling for Mother to help her develop parenting
skills and “attachment services” to assist the youngest children in maintaining their bond with
Mother, was compelling. Dr. Sanborne testified as to the course of her involvement with the
oldest daughter in 2009 and 2010 and her inability, due to Mother’s unavailability or
distraction, to conduct the counseling with Mother necessary to facilitate Mother’s
understanding of her needs and the needs of the children. Dr. Sanborne was particularly
concerned that Deciandra had become a “parentified child” –that Deciandra had been
assigned so much responsibility for seeing to the needs of her siblings that her own
development was being stifled and significant emotional needs not being met. The testimony
of Dr. Sanborne was significant with reference to the likelihood that the conditions leading
to the children’s removal would be remedied soon and the necessity of getting the children
into a more stable environment. See Tenn. Code Ann. § 36-1-113(g)(3)(B)–(C).
6. Best interest of the children
Once a ground for termination has been proven by clear and convincing evidence, the
trial court must then determine whether it is the best interest of the child for the parent’s
rights to be terminated, again using the clear and convincing evidence standard. Tenn. Code
Ann, § 36-1-113(i) sets out factors for the court to follow in determining the child’s best
interest; this list of factors is not exhaustive, and the statute does not require every factor to
appear before a court can find that termination is in a child’s best interest. See In re S.L.A.,
223 S.W.3d 295, 301 (Tenn. Ct. App. 2006) (citing State of Tenn. Dep’t of Children’s Servs.
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v. T.S.W., No. M2001-01735-COA-R3-CV, 2002 WL 970434 at *3 (Tenn. Ct. App. May 10,
2002); In re I.C.G., No. E2006-00746-COA-R3-PT, 2006 WL 3077510, at *4 (Tenn. Ct.
App. Oct. 31, 2006)).
The trial court cited numerous facts in determining that termination of Mother’s
parental rights was in the best interest of the children, including: her failure to comply with
the requirements of the permanency plans; her failure to make lasting changes in her
circumstances; the detrimental effect changing caregivers and physical environment would
likely have on the children; and the need to release the children from foster care and the
desire of their foster parents to adopt them. The findings of the court are supported by the
evidence and are proper considerations in applying Tenn. Code Ann. § 36-1-113(i). The
evidence does not preponderate against the trial court’s finding that termination of Mother’s
parental rights was in the children’s best interest.
B. Termination of Father’s Parental Rights 7
The trial court based the termination of Father’s parental rights on wanton disregard
of the children’s welfare, within the meaning of Tenn. Code Ann. § 36-1-102(1)(A)(iv).8
Pursuant to this statute, an incarcerated or recently incarcerated parent can be found guilty
7
DCS concedes that the trial court erred in basing its findings of abandonment on the definition at
Tenn. Code Ann. § 36-1-102(1)(A)(i) rather than the definition at § 36-1-102(1)(A)(iv) inasmuch as Father
was incarcerated during the four months immediately preceding the filing of the petition to terminate his
parental rights. Consequently, we will only discuss the second issue presented by Father.
8
Tenn. Code Ann. § 36-1-102 provides:
(1)(A) For purposes of terminating the parental or guardian rights of parent(s) or guardian(s)
of a child to that child in order to make that child available for adoption, “abandonment”
means that:
(iv) A parent or guardian is incarcerated at the time of the institution of an action or
proceeding to declare a child to be an abandoned child, or the parent or guardian has been
incarcerated during all or part of the four (4) months immediately preceding the institution
of such action or proceeding, and either has willfully failed to visit or has willfully failed
to support or has willfully failed to make reasonable payments toward the support of the
child for four (4) consecutive months immediately preceding such parent's or guardian's
incarceration, or the parent or guardian has engaged in conduct prior to incarceration that
exhibits a wanton disregard for the welfare of the child; or
Tenn. Code Ann. § 36-1-102(1)(A)(iv).
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of abandonment only if the court finds, by clear and convincing evidence, that the parent's
pre-incarceration conduct displayed a wanton disregard for the welfare of the child. See In
re Audrey S., 182 S.W.3d 838, 866 (Tenn. Ct. App. 2005).
The evidence of record clearly and convincingly supports the trial court’s findings of
Father’s wanton disregard of the welfare of his children. We do not believe that, in the
context of Father’s responsibility to his children, his history of criminal behavior is
“comparatively insubstantial,” as asserted in his brief on appeal; rather, it is indicative of
disregard of the needs of his children throughout their lifetimes.9 As noted earlier, the
primary objective of DCS in the permanency plans was to reunite these children with their
parents. Through the testimony of Mother, Dr. Sanborne and the DCS case worker, there is
little, if anything, showing a commitment of Father–before and during the time the children
were placed in DCS custody–to the growth and development of his children, such as
consistent financial support, insuring that the children had a safe and secure place to live, or
addressing their medical and emotional needs and challenges. While Father seeks to
challenge the motives of DCS in instituting this proceeding, he minimizes or disregards the
effects of his behavior on their lives and circumstance.
IV. Conclusion
For the reasons set forth above, the order of the Juvenile Court is AFFIRMED.
Costs of this appeal are assessed to Mother and Father, equally.
___________________________________
RICHARD H. DINKINS, JUDGE
9
“[P]robation 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 (citations
omitted).
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