In re A.B. ( 2017 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
October 19, 2016 Session
IN RE A.B. ET AL.
Appeal from the Juvenile Court for Cumberland County
No. 2014-JV-4661 Larry M. Warner, Judge
No. E2016-00504-COA-R3-PT-FILED-JANUARY 11, 2017
This is a termination of parental rights case. On December 17, 2014, the Department of
Children’s Services filed a petition to terminate the parental rights of M.L.F. (Mother)
and H.W.B. (Father) with respect to their two children, A.M.B. (Child 1) and O.R.F.
(Child 2) (collectively the Children). As to Mother, the trial court found clear and
convincing evidence of three grounds supporting termination – abandonment by failure to
establish a suitable home, substantial noncompliance with permanency plans, and
persistence of conditions.1 By the same quantum of proof, the trial court found that
termination of Mother’s rights is in the best interest of the Children. As to Father, the
trial court held that DCS had failed to prove, by clear and convincing evidence, the
alleged grounds of abandonment by wanton disregard, substantial noncompliance with
permanency plans, and grounds applicable to a putative father.2 Consequently, the court
declined to terminate Father’s parental rights. Mother and DCS appeal. We reverse the
trial court’s holding as to Father and affirm the court’s termination of Mother’s rights.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Affirmed in Part and Reversed in Part; Case Remanded
CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.
1
In its petition, DCS also sought to terminate Mother’s rights on the ground of failure to support,
pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(i). This ground was not addressed at
trial and is not discussed in the parties’ briefs.
2
In addition to these grounds, DCS also sought to terminate Father’s rights on the ground of
persistence of conditions, pursuant to Tenn. Code Ann. § 36-1-113(g)(3). This ground is not addressed in
the record.
Herbert H. Slatery III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor
General, and Kathryn A. Baker, Assistant Attorney General, Nashville, Tennessee, for
the appellant, Tennessee Department of Children’s Services.
Sherrill Rhea, Crossville, Tennessee, for appellee, M.L.F.
Jonathan R. Hamby, Crossville, Tennessee, for appellee, H.W.B.
OPINION
I.
Child 1 was born on February 10, 2009, and Child 2 was born on July 9, 2010. In
2009, Father was on probation for a drug charge to which he had pleaded guilty. In July
2009, he was found guilty of violating his probation. In March 2010, Father was arrested
for driving on a suspended license. When Father was arrested, he had $3,795 in cash
with him. After Father bonded out of jail, the police investigated him due to their belief
that his cash was ―drug money.‖ This investigation led to the discovery of Oxycodone in
a vehicle on his property. Father was arrested for violation of probation. He was charged
with possession for sale of a schedule II drug and possession of a schedule II drug for
delivery. He has been continuously incarcerated since April 5, 2010. On October 8,
2010, Father pleaded guilty to a January 2010 charge of theft of property over $1,000.
He also pleaded guilty to the charges of possession of a schedule II drug for sale and for
delivery. The criminal court sentenced him to two years for the theft charge and six years
for the drug offenses. In addition to the state charges, Father was indicted on federal
charges for conspiracy to transport and deliver and trafficking of Oxycodone,
Alprazolam, and Hydocodone. Father pleaded guilty to these federal charges, receiving a
seventy-five month sentence.
In January 2014, DCS received a referral that Mother was using drugs. Mother
had previously been in a drug rehab program, and she agreed to return to the program.
On February 6, 2014, DCS contacted a rehab program on Mother’s behalf. That same
day, Mother was arrested on charges of public intoxication, simple possession of a
schedule IV drug, and the manufacture, delivery, and sale of methamphetamine.
Following Mother’s arrest, DCS filed a petition to declare the Children dependent
and neglected and for emergency temporary legal custody. The trial court entered a
protective custody order and placed the children in the custody of DCS due to
dependency and neglect. The Children were placed with a foster family and have been
with that family since their placement.
2
DCS created multiple permanency plans for Mother and Father. The trial court
ratified permanency plans on May 23, 2014, October 3, 2014, and January 9, 2015. Each
plan had as its goal return to parents/adoption. These plans sought to ensure that, if the
Children returned to Mother or Father, they would have a stable home environment, drug
free parents, an environment free from legal stressors, and appropriate parenting.
On December 17, 2014, DCS filed a petition to terminate the parental rights of
both parents. In its petition, DCS alleged the following grounds for termination of
Mother’s rights: (1) abandonment due to her failure to support the Children pursuant to
Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A); (2) abandonment as a result of
Mother’s failure to provide a suitable home pursuant to Tenn. Code Ann. §§ 36-1-
113(g)(1) and 36-1-102(1)(A)(ii); (3) Mother’s substantial noncompliance with
permanency plans pursuant to Tenn. Code Ann. § 36-1-113(g)(2); and (4) persistence of
conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3). In the same petition, DCS
alleged grounds for termination of Father’s rights: (1) failure to establish paternity
pursuant to Tenn. Code Ann. § 36-1-113(g)(9); (2) abandonment by wanton disregard
pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and 36-1-102(1)(A)(iv); (3) substantial
noncompliance with permanency plans pursuant to Tenn. Code Ann. § 36-1-113(g)(2);
and (4) persistence of conditions pursuant to Tenn. Code Ann. § 36-1-113(g)(3). DCS
asserted that termination of the parents’ rights is in the best interest of the Children.
On February 10, 2016, the trial court entered its order terminating Mother’s
parental rights after finding clear and convincing evidence supporting three grounds
alleged by DCS. In addition, the trial court held that there was clear and convincing
evidence that termination of Mother’s rights was in the Children’s best interest. As to
Father, the trial court held that DCS failed to prove by clear and convincing evidence that
one or more grounds existed to terminate his rights. Mother and DCS appeal.
II.
DCS filed a notice of appeal on March 8, 2016 raising the following issues, as
taken verbatim from its brief:
1. Whether the juvenile court erred in finding that the
Department of Children’s Services had not proven by clear
and convincing evidence that grounds exist to terminate
Father’s parental rights.
2. Whether the Department of Children’s Services presented
clear and convincing evidence that termination of Father’s
parental rights is in the best interest of the Children[.]
3
Mother filed a notice of appeal on March 9, 2016 raising the following issues, as taken
verbatim from her brief:
1. Whether the juvenile court erred in finding that the
Department of Children’s Services had proven by clear and
convincing evidence that grounds exist to terminate Mother’s
parental rights.
2. Whether the juvenile court erred by finding clear and
convincing evidence that termination of Mother’s parental
rights was in the Children’s best interest.
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
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
4
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,
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.
This court has previously stated that,
[t]he ultimate goal of every proceeding involving the care and
custody of a child is to ascertain and promote the child’s best
5
interests. However, as important as these interests are, they
do not dominate every phase of a termination of parental
rights proceeding. The best interests of the child do not
become the paramount consideration until the trial court has
determined that the parent is unfit based on clear and
convincing evidence of one or more of the grounds for
termination listed in Tenn. Code Ann. § 36-1-113(g).
In re Audrey S., 182 S.W.3d at 877. In the present action, the trial court found, by clear
and convincing evidence, three grounds to terminate Mother’s rights. The trial court,
however, determined that DCS failed to prove by clear and convincing evidence that
Father’s rights should be terminated. As previously stated in this opinion, we are
required to review all of the trial court’s findings with respect to grounds and best interest
―regardless of whether the parent challenges the findings on appeal.‖ In re Carrington,
483 S.W.3d at 525-26.
V.
A.
When analyzing the first ground for terminating Mother’s rights — failure to
establish a suitable home — the trial court concluded the following:
[Mother] has abandoned [the Children] pursuant to Tenn.
Code Ann. § 36-1-113(g)(1) and Tenn. Code Ann. § 36-1-
102(1)(A)(ii) in that for a period of four (4) months following
the removal of the children from the parents, the Department
has made reasonable efforts to assist the mother . . . to
establish a suitable home for the children, but the mother has
made no reasonable efforts to provide a suitable home and
has demonstrated a lack of concern for the children to such a
degree that it appears unlikely that [Mother] will be able to
provide a suitable home for the children at an early date.
The reasonable efforts of the Department made in the first
four months include: . . . determining if the parent has
insurance or TNCare coverage for medical, mental health,
and alcohol and drug treatment; reviewing the Criteria and
Procedure for Termination of Parental Rights with parent; . . .
providing the parent with a monthly list of items the children
need such as food, clothing, and toys; . . . obtaining funding
for and scheduling therapeutic visitation; . . . assisting the
parent in scheduling an alcohol and drug consultation . . . ;
6
assisting the parent in scheduling a psychological evaluation
appointment; . . . [and] attempting and making visits to the
parent’s home. . . .
The mother’s lack of reasonable efforts include: failure to
maintain housing resulting in her being evicted and residing
with friends; . . . failing to obtain or provide a list of efforts to
obtain a legal means of income; . . . missing several visits
with the children and being late to others; . . . missing
appointments for alcohol and drug assessments that were
scheduled by case manager; testing positive on drug screens
for medication that was not prescribed to her; . . . and missing
the first scheduled psychological evaluation and refusing to
go . . . when . . . it was rescheduled.
Our review of the record demonstrates that the evidence does not preponderate
against these factual findings by the trial court. Tenn. Code Ann. § 36-1-102(1)(A)(ii)
explains that, for the purposes of terminating parental rights, ―abandonment‖ means:
The child has been removed from the home of the parent . . .
as the result of a petition filed in the juvenile court in which
the child was found to be a dependent and neglected child, . . .
and the child was placed in the custody of the department . . .
, that the . . . court where the termination of parental rights
petition is filed finds, that the department . . . made
reasonable efforts to prevent removal of the child . . . ; and for
a period of four (4) months following the removal, the
department . . . has made reasonable efforts to assist the
parent . . . to establish a suitable home for the child, but that
the parent . . . ha[s] made no reasonable efforts to provide a
suitable home and ha[s] demonstrated a lack of concern for
the child to such a degree that it appears unlikely that [she]
will be able to provide a suitable home for the child at an
early date.
In the present action, the Children were placed in DCS custody on February 6,
2014. As a result, the four-month period we must examine in order to establish
abandonment by a failure to provide a suitable home is February 7, 2014 to June 6, 2014.
The record reflects that during these four months, DCS (1) provided Mother with the
contact information for her case manager and team leader; (2) advised Mother of the
availability of assistance seeking employment; (3) scheduled and arranged transportation
and supervision for visitation with the Children; (4) discussed permanency plans with
Mother; (5) coordinated scheduling and attending an alcohol and drug consultation; (6)
7
observed and documented parenting problems and made recommendations for addressing
those problems; (7) administered drug screens and discussed positive results with
Mother; and (8) attempted to transport Mother to her psychological evaluation.
Meanwhile, during that same period, Mother (1) failed to maintain housing; (2) missed
appointments for drug and alcohol assessments; (3) failed to maintain legal means of
income; (4) failed or refused drug screens; and (5) missed psychological evaluations.
In light of the above facts, we hold, as a matter of law, that the evidence clearly
and convincingly establishes that Mother has abandoned the Children by failing to
provide a suitable home for them.
B.
The trial court made the following findings with respect to Mother’s substantial
noncompliance with permanency plans:
[Mother] has not substantially complied with the provisions
of the permanency plans, and therefore her parental rights
should be terminated pursuant to Tenn. Code Ann. § 36-1-
113(g)(2).
* * *
The requirements of the permanency plans are all reasonably
related to remedying the conditions that necessitate foster
care. All of the permanency plans clearly identify in writing
the parent’s statement of responsibilities as being both the
desired outcomes and action steps listed in the plan.
[Mother] has not completed the following requirements in the
permanency plan: she has . . . not provided monthly receipts
of rent and utilities, she has not obtained a legal means of
income or provided a list of employment efforts, she did not
complete the application process with Vocational
Rehabilitation, she has missed several visits with the children
and was late to many more, . . . she missed several
appointments scheduled for an alcohol and drug consultation
and has not followed up with any alcohol and drug treatment,
she has tested positive for medications which were not
prescribed, . . . she has appeared at visitation with visible
track marks on her arms, . . . she missed her appointment for a
psychological evaluation and refused to attend the
8
rescheduled appointment, [and] she has incurred new legal
charges in September 2014.
The Department made reasonable efforts to assist [Mother] in
complying with the requirements in the permanency plan by
providing to parent case manager and team leader’s business
cards with name, office address, office telephone number,
state cell phone number, and email address and instructing
parent to contact case manager or team leader if case manager
cannot be reached at any time the parent needs assistance; . . .
scheduling visitation between the parent and making sure the
parent knows the time, date, and place of the visitation; . . .
arranging transportation to the visitation for the child; . . .
arranging a regular day and time for telephone visitation
between the parent and the child; . . . offering, providing, and
confirming the parent has reliable transportation to an alcohol
and drug consultation; . . . completing walk-throughs of the
parent’s home, identifying and documenting health and safety
hazards for the child in the parent’s home; . . . providing the
parent with contact information for Public Transportation . . .
; . . . and leaving messages with relatives asking them to ask
the parent to contact DCS.
Based on our review of the record in this case, we hold that the evidence does not
preponderate against the trial court’s factual findings with respect to Mother’s substantial
noncompliance with permanency plans. Tenn. Code Ann. § 36-1-113(g)(2) allows a
court to terminate a parent’s rights when ―[t]here has been substantial noncompliance by
the parent . . . with the statement of responsibilities in a permanency plan.‖ On the topic
of substantial noncompliance, the Supreme Court has explained as follows:
Substantial noncompliance is not defined in the termination
statute. The statute is clear, however, that noncompliance is
not enough to justify termination of parental rights; the
noncompliance must be substantial. Black’s Law Dictionary
defines ―substantial‖ as ―[o]f real worth and importance.‖
Black’s Law Dictionary 1428 (6th ed. 1990). In the context of
the requirements of a permanency plan, the real worth and
importance of noncompliance should be measured by both the
degree of noncompliance and the weight assigned to the
requirement.
In re Valentine, 79 S.W.3d at 548 (emphasis added).
9
DCS created three separate permanency plans, and all three essentially shared the
same requirements. Mother was required to maintain appropriate housing, obtain a legal
means of income, visit the Children regularly, refrain from illegal activity, avoid using
medication not prescribed to her, and attend mental health appointments. The record
reflects that Mother failed to meet these requirements, all of which bear on her ability to
provide a stable home for the Children. Mother has not maintained appropriate housing,
has not obtained a legal means of income, missed multiple visits with the Children,
incurred new legal charges, tested positive for medications that were not prescribed to
her, and has refused to submit to a psychological evaluation. In our view, Mother has
failed to comply with a number of the requirements that are crucial for allowing the
Children to be returned to her. Accordingly, we hold, as a matter of law, that the
evidence clearly and convincingly demonstrates that Mother has not substantially
complied with the permanency plans.
C.
When reviewing persistence of conditions as a ground for terminating Mother’s
rights, the trial court held as follows:
The children have been removed from the custody of their
parents for more than six (6) months; the conditions which
led to removal of the children from the home of [Mother] still
exist and other conditions exist which in all probability would
cause the children to be subject to further abuse and/or
neglect, making it unlikely that the children could be returned
to [Mother] in the near future; there is little likelihood that
these conditions will be remedied at an early date so that the
children can be returned to [Mother] in the near future; the
continuation of the parent . . . and child relationship greatly
diminishes the child’s chance of an early integration into a
stable and permanent home, and therefore, her parental rights
should be terminated pursuant to Tenn. Code Ann. § 36-1-
113(g)(3).
The conditions that led to the removal of the children from
the home of [Mother] . . . are the . . . mother’s drug abuse and
criminal activity.
The conditions that prevent the children’s return to the
mother’s home are her failure to comply with alcohol and
drug treatment and continued abuse of drugs, continued
criminal behavior, and her lack of stable housing and legal
means of income.
10
The Department made reasonable efforts to assist the parents
in remedying the conditions that necessitate foster care.
The evidence in this case does not preponderate against the trial court’s factual
findings on this ground. Tenn. Code Ann. § 36-1-113(g)(3) authorizes termination of
parental rights when:
(A) The child has been removed from the home of the parent
. . . by order of a court for a period of six (6) months and;
(i) 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;
(ii) There is little likelihood that these
conditions will be remedied at an early date so
that the child can be safely returned to the
parent(s) . . . in the near future; and
(iii) The continuation of the parent or guardian
and child relationship greatly diminishes the
child’s chances of early integration into a safe,
stable and permanent home.
Mother struggles with drug abuse. DCS has made repeated efforts to assist
Mother with this problem, but Mother has neglected to do her part. The conditions
leading to removal of the Children are Mother’s drug abuse and criminal activity.
Mother has not remedied the problems that led to the termination of her parental rights.
She has tested positive for medications not prescribed to her and showed up for visitation
with track marks on her arms. She has refused to attend drug and alcohol treatment.
Mother has also incurred new legal charges. It is clear that Mother’s drug abuse and
criminal activity continue. We hold, as a matter of law, that the evidence clearly and
convincingly establishes persistence of conditions as to Mother.
D.
Turning now to Father, the trial court stated the following with respect to the
ground of substantial noncompliance with permanency plans:
11
[DCS] has failed to prove by clear and convincing evidence
that [Father] has not substantially complied with the
provisions of the permanency plans pursuant to Tenn. Code
Ann. § 36-1-113(g)(2).
The initial permanency plan . . . requires [Father] to speak to
the social worker at the prison to find out what parenting
classes are offered to him and to complete any and all classes,
submitting documentation of same to case manager when
completed; maintain weekly contact with the children through
letters to be delivered to the case manager; resolve pending
criminal charges and be in compliance with rules of current or
future probationary rules, and refrain from illegal activity. . . .
* * *
The requirements in the permanency plans are all reasonably
related to remedying the conditions that necessitate foster
care . . . .
The Court does not find that [Father] has failed to
substantially comply with the requirements in the permanency
plan. Specifically, the Court finds that there is nothing
[Father] could have done while incarcerated that he has not
done . . . . The Court finds specifically that [Father] did
complete over 385 hours of combined classes in the areas of
career development and planning, carpentry level 1, parenting
classes, psychology and self-awareness, and alcoholics
anonymous. Additionally, [Father] works five days a week at
the prison making clothing for the military, and he is saving
money received from this employment.
We conclude, based on our review of the record, that the evidence does not
preponderate against these findings by the trial court. The permanency plans required
Father to complete classes while incarcerated and to maintain contact with the children.
Father has completed a great number of classes during his time in jail and continues to
attend classes. The record also indicates that Father made attempts to stay in contact
with the Children but that there were some barriers to communicating with them. We
hold, as a matter of law, that the evidence does not clearly and convincingly demonstrate
that Father has failed to substantially comply with permanency plans. The trial court was
correct in failing to terminate on the allegation of substantial noncompliance with the
permanency plans.
12
E.
Tenn. Code Ann. § 36-1-113(g)(1) authorizes a court to terminate parental rights
when abandonment occurs as defined by Tenn. Code Ann. § 36-1-102(1)(A).
Abandonment by an incarcerated parent occurs when:
(iv) 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 . . .
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).
The trial court concluded the following with respect to the ground of conduct prior
to incarceration that exhibits a wanton disregard by an incarcerated parent for the welfare
of the Children:
[Father] has been incarcerated during the four consecutive
months prior to filing of this petition. [Father] has been
incarcerated from 4-5-2010 to the present and is currently in
Federal Prison in Talladega, Alabama.
[Father] has been convicted of Sale of a Schedule II
Controlled Substance in February 2009. In July 2009 and
again in May 2010, he was found guilty of violating his
probation. On 10-8-2010, [Father] pled guilty to theft of
property over $1,000 and Possession of Oxycodone, A
Schedule II Controlled Substance for Sale and Possession of
Oxycodone, A Schedule II Controlled Substance for Delivery.
[Father] testified that he retained an attorney and was advised
to plead to the last of the charges in 2010 because they would
run concurrent and he could not get approved for parole while
a charge was pending. [Father] maintains his innocence in
regards to the conduct which ultimately resulted in his present
incarceration. [Father] was employed at the time . . . [and]
had custody of his daughter . . . . This Court finds [Father’s]
testimony highly credible, especially given the evidence
submitted showing the courses he completed while
13
incarcerated. He is currently finishing the last of his
sentence, and he has shown a strong desire to return to society
as a productive citizen.
Therefore, the Court fails to find that [Father] has engaged in
conduct prior to incarceration that exhibits a wanton disregard
for the welfare of the children pursuant to Tenn. Code Ann.
§[§] 36-1-113(g)(1) and Tenn. [Code Ann.] 36-1-
102(1)(A)(iv).
On this ground, we hold that the evidence preponderates against the trial court’s
finding that Father did not engage in conduct prior to incarceration that exhibits a wanton
disregard for the welfare of the Children. Rather than addressing Father’s conduct prior
to incarceration, the trial court focused, instead, on Father’s conduct while he has been
incarcerated. The court’s findings that ―[Father’s] testimony was highly credible,
especially given the evidence submitted showing the courses he has completed while
incarcerated . . . [and] has shown a strong desire to return to society as a productive
citizen[]‖ do not properly analyze the ground of abandonment by an incarcerated parent.
The conduct we must analyze is the conduct prior to incarceration.
―Parental conduct exhibiting wanton disregard for a child’s welfare may occur at
any time prior to incarceration[.]‖ In re Kason C., No. M2013-02624-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.
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)).
In this case, Father’s conduct prior to incarceration demonstrates a pattern of
conduct that exhibits a wanton disregard for the welfare of the Children. In 2009, Father
was on probation for a prior drug charge. On July 6, 2009, his probation was partially
revoked when he was found guilty of violating his probation due to a battery charge
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against him. Father’s probation was later fully revoked on May 7, 2010 after he pleaded
guilty to a violation of community corrections. Additionally, Father pleaded guilty to
theft of property over $1,000 that occurred on January 25, 2010.
This pattern continued in March 2010 when officers arrested Father for driving on
a suspended license. After Father bonded out of jail, officers arrested Father for the
possession of Oxycodone, a schedule II controlled substance for sale. Father pleaded
guilty to this offense but now claims that his attorney misled him to plead guilty to that
charge. Father’s untimely assertion of his innocence does not relieve him of this charge
or discharge the actions that led to the charge. ―A plea of guilty . . . is generally not
conclusive on the issues in a subsequent civil action, but is competent evidence as an
admission against interest.‖ Grange Mut. Cas. Co. v. Walker, 652 S.W.2d 908, 910
(Tenn. Ct. App. 1983) (internal citations omitted). Thus, while it is not conclusive on the
issue of guilt, we find the guilty plea as competent evidence that Father continued his
pattern of behavior that exhibits a wanton disregard for the welfare of the Children. We
will not relitigate Father’s 2010 guilty plea. We are not trying him for the offense, but
rather are looking at his pattern of conduct that demonstrates a wanton disregard for the
welfare of the Children. Subsequent to this charge, Federal authorities indicted Father for
conspiracy to transport and delivery and trafficking of Oxycodone, Alprazolam, and
Hydrocodone. Father also pleaded guilty to those charges.
―Our courts have consistently held that an incarcerated parent who has multiple
drug offenses and wastes the opportunity to rehabilitate themselves by continuing to
abuse drugs, resulting in revocation of their parole and reincarceration, constitutes
abandonment of the child, and demonstrates a wanton disregard for the welfare of the
child.‖ In re DNG, No. M2003-02810-COA-R3-PT, 2004 WL 2314534, at *2 (Tenn. Ct.
App., filed Oct. 13, 2004) (citing In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct. App.
2000)). The above incidents demonstrate a pattern. The record makes it clear that Father
has engaged in a course of conduct in which he was involved with drugs and other
violations of the law. Father’s numerous drug charges and probation violations
demonstrate that he has engaged in a pattern of conduct. This pattern has caused Father
to be incarcerated continuously since April 2010. Prior to that, Father was in and out of
jail. Father’s conduct prior to incarceration exhibits a clear wanton disregard for the
welfare of the Children.
For a child in utero, we primarily have found wanton disregard where a parent,
after learning of the pregnancy, commits the crime for which he or she is subsequently
incarcerated. In re Jamazin H.M., 2014 WL 2442548, at *9; In re Maria B.S., No.
E2012-01295-COA-R3-PT, 2013 WL 1304616, at *1 (Tenn. Ct. App., filed Apr. 1,
2013). Here, the conduct that led to Father’s most recent incarceration occurred on
March 9, 2010. Child 1 was born on February 10, 2009, and Child 2 was born on July 9,
2010. Thus, while Father’s pattern of conduct began prior to the Children’s birth, the
conduct extends beyond the time period that Father would have been aware that Child 2
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had been conceived. Father testified that, when he was incarcerated on April 5, 2010,
Mother was pregnant with Child 2. Thus, when Father committed the offenses prior to
his current incarceration, he had learned that Mother was pregnant with Child 2.
Accordingly, his conduct exhibiting a wanton disregard for the welfare of the Children
extends to all relevant periods in this case. We hold, as a matter of law, that Father
engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare
of the Children.
F.
As to termination of Father’s parental rights on putative father grounds, the trial
court addressed the issue as follows:
The Court . . . refuses to terminate [Father]’s parental rights
to [Child 2] on the grounds that he does not meet the
definition of ―legal parent‖ found at Tenn. Code Ann. § 36-1-
102(28), which is controlling law for this ground for
termination of parental rights. Specifically, the Court finds
that [Father] has never denied being the child’s father and
testified that he requested DNA testing in an email to the
Department, after receiving no response to previous emails,
which he was instructed to send by the Department. There is
no reliable indication in the record that he was ever provided
instructions on how to get on the Putative Father Registry, nor
that he was even aware of it.
We hold that the evidence does not preponderate against the trial court’s factual
findings as to this ground. Tenn. Code Ann. § 36-1-113(g)(9)(iv) allows a court to
terminate the rights of a putative father if ―[t]he person has failed to manifest an ability
and willingness to assume legal and physical custody of the child[.]‖ The evidence does
not demonstrate that Father was aware of the Putative Father Registry or had access to
the internet to register as Child 2’s putative father. We hold, as a matter of law, that the
evidence does not clearly and convincingly demonstrate that Father has failed to manifest
an ability and willingness to assume legal and physical custody of Child 2. The trial
court was correct in failing to terminate Father’s rights on this ground.
VI.
Since we have found statutory grounds warranting the termination of Mother’s and
Father’s parental rights, we now focus on whether termination is in the Children’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), which provides:
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In determining whether termination of parental or
guardianship rights is in the best interest of the child pursuant
to this part, the court shall consider, but is not limited to, the
following:
(1) Whether the parent or guardian has made such an
adjustment of circumstance, conduct, or conditions as to
make it safe and in the child’s best interests to be in the home
of the parent or guardian;
(2) Whether the parent or guardian has failed to effect a
lasting adjustment after reasonable efforts by available social
services agencies for such duration of time that lasting
adjustment does not reasonably appear possible;
(3) Whether the parent or guardian has maintained regular
visitation or other contact with the child;
(4) Whether a meaningful relationship has otherwise been
established between the parent or guardian and the child;
(5) The effect a change of caretakers and physical
environment is likely to have on the child’s emotional,
psychological and medical condition;
(6) Whether the parent or guardian, or other person residing
with the parent or guardian, has shown brutality, physical,
sexual, emotional or psychological abuse, or neglect toward
the child, or another child or adult in the family or household;
(7) Whether the physical environment of the parent’s or
guardian’s home is healthy and safe, whether there is criminal
activity in the home, or whether there is such use of alcohol,
controlled substances or controlled substance analogues as
may render the parent or guardian consistently unable to care
for the child in a safe and stable manner;
(8) Whether the parent’s or guardian’s mental and/or
emotional status would be detrimental to the child or prevent
the parent or guardian from effectively providing safe and
stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support
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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
addition, ―[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 490, 499 (Tenn. Ct. App. 2005) (citing
White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004)).
A.
In the present action, the trial court held that DCS has proven by clear and
convincing evidence that termination of Mother’s rights is in the Children’s best interest.
The trial court made the following factual findings when analyzing the best interest of the
Children:
[Mother] has not made an adjustment of circumstances,
conduct or conditions as to make it safe and in the children’s
best interest to be in the home of the mother. . . .
[Mother] has failed to effect a lasting adjustment after
reasonable efforts by available social agencies for such
duration of time that lasting adjustment does not reasonably
appear possible. . . .
[Mother’s] use of alcohol or controlled substances renders her
consistently unable to care for the children on a safe and
stable manner. . . .
* * *
[Mother] continues to make lifestyle choices that prevent her
from being able to parent the children or to provide a home
for the children.
On appeal, Mother notes that she has visited the Children regularly and maintained
contact with them. She also argues that she has a meaningful relationship with the
Children and that terminating her rights would have a negative impact on the Children.
Mother argues that ―a change in caretakers may not have a negative impact on the
children.‖
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We are not persuaded by Mother’s arguments. While maintaining contact with the
Children was a productive step in building a relationship with the Children, we find that
Mother has failed to make the adjustments that would make it safe for the Children to
return to her home. Mother has continued to abuse drugs and failed to take steps to
demonstrate her willingness to make the appropriate changes needed to render her home
safe. The record shows that Mother lacks stable housing, continues to have issues with
drugs and alcohol, and has failed to address her mental health issues. The Children have
developed a relationship with their foster family, and changing caretakers would likely
have a negative effect on the Children’s emotional and psychological condition. We
hold, as a matter of law, that the trial court was correct in holding that there is clear and
convincing evidence that termination of Mother’s parental rights is in the Children’s best
interest.
B.
In regard to Father, the trial court addressed the Children’s best interest as follows:
As the Court failed to find that [DCS] has proven by clear and
convincing evidence that grounds for termination of the
parental rights of [Father] exist, the Court is not required to
make findings regarding whether the termination of parental
rights of [Father] is in the best interest of the children.
Because we hold, as a matter of law, that DCS has proven by clear and convincing
evidence that a ground for termination of Father’s parental rights exists, we must now
address the issue of whether termination of his rights is in the best interest of the
Children. Tenn. Code Ann. § 36-1-113(c)(2). The record contains all facts necessary to
make this determination. We are guided by the same factors discussed above. On
appeal, Father argues that ―[n]o evidence was presented that child support was ever
ordered by the trial court, such that [that] factor . . . should be weighted either way . . . .‖
Father asserts that he pled with the trial court not to terminate his rights because ―he had
been a good caregiver before incarceration, had a home, had completed classes and was
willing to support the children.‖
The record before us presents an individual who has been continually in violation
of the law and has failed to abide by the terms of his probation. Through the course of
Father’s criminal history, Father has demonstrated that he cannot provide a safe home for
the Children. While he has attended classes during his incarceration, these classes do not
make up for the fact that Father refused to make adjustments to his circumstance,
conduct, or conditions to provide a safe home for the Children. Father has not had
regular contact with the Children. He has been incarcerated for a majority of Child 1’s
life and all of Child 2’s life, making it impossible for him to establish a meaningful
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relationship with the Children. Placing the Children with Father would be akin to placing
them with a stranger. The Children have been with a foster family for years, and
removing them from that family now and placing them with Father would likely have a
negative effect emotionally and psychologically on the Children. We hold, as a matter of
law, that there is clear and convincing evidence that termination of Father’s parental
rights is in the best interest of the Children.
VII.
The judgment of the trial court finding that DCS failed to prove a ground to
terminate Father’s rights is reversed. The result of our reversal is that Father’s parental
rights are hereby terminated on the sole ground of conduct prior to incarceration
exhibiting ―wanton disregard for the welfare of the child.‖ The judgment of the trial
court terminating Mother’s parental rights is affirmed. The costs on appeal are assessed
one-half to the appellee, M.L.F, and one-half to the appellee, H.W.B. This case is
remanded to the trial court for enforcement of the trial court’s judgment as changed by us
and for the collection of costs assessed below.
_______________________________
CHARLES D. SUSANO, JR., JUDGE
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