In Re Trinity H. ( 2020 )

08/28/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs August 3, 2020
IN RE TRINITY H.
Appeal from the Juvenile Court for Macon County
No. 2019-JV-203 Ken Witcher, Judge
No. M2020-00440-COA-R3-PT
This appeal concerns the termination of a father’s parental rights. The Tennessee
Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for Macon
County (“the Juvenile Court”) seeking to terminate the parental rights of James H.
(“Father”) to his minor daughter Trinity H. (“the Child”). After a trial, the Juvenile Court
entered an order terminating Father’s parental rights on the grounds of wanton disregard,
severe child abuse, and failure to manifest an ability and willingness to assume custody.
The Juvenile Court found also that termination of Father’s parental rights is in the Child’s
best interest. Father appeals. With respect to wanton disregard, the Juvenile Court found
only that Father committed criminal acts resulting in his incarceration, which by itself is
insufficient to establish the ground. We, therefore, vacate the ground of wanton disregard.
However, we find that the other two grounds were proven by clear and convincing evidence
and, by the same standard, that termination of Father’s parental rights is in the Child’s best
interest. We vacate, in part, and affirm, as modified.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
Vacated, in Part, and Affirmed, as Modified
D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D. BENNETT
and CARMA DENNIS MCGEE, JJ., joined.
Michael J. Rocco, Sparta, Tennessee, for the appellant, James H.
Herbert H. Slatery, III, Attorney General and Reporter, and Amber L. Seymour, Assistant
Attorney General, for the Tennessee Department of Children’s Services.
OPINION
Background
In March 2019, the Juvenile Court entered an order finding that Father committed
severe child abuse against two of the Child’s siblings stemming from Father’s failure to
protect these children from drug exposure while their mother was pregnant. The Juvenile
Court found, in part: “[S]pecifically that [Father] made admissions that he knew the mother
was using opiates, he has spent extended periods of time in jail with the reasons based upon
drug use, and while the children lived with him the children were exposed to the drugs that
[the children] had in their system; therefore, he knowingly failed to protect the [children]
from abuse.”
The Child, subject of this present appeal, was born in June 2019. DCS received a
referral that she, too, was drug-exposed. The Child tested positive for amphetamine and
methamphetamine. On June 11, 2019, the Child was removed into DCS custody. On June
27, 2019, Father was arrested and charged with probation violation, possession of a
Schedule II controlled substance, possession of a Schedule VI controlled substance, and
possession of drug paraphernalia. On November 7, 2019, the Child was adjudicated
dependent and neglected due to her drug exposure and Father’s lack of housing.
On November 25, 2019, DCS filed a petition in the Juvenile Court seeking to
terminate Father’s parental rights.1 DCS alleged grounds of abandonment by wanton
disregard, severe child abuse, and failure to manifest an ability and willingness to assume
custody. The petition was tried in February 2020.
Before hearing testimony, the Juvenile Court noted Father’s absence. Father had
been released from jail the day before trial. The Juvenile Court stated that, at a December
court appearance, it personally had informed Father of his February court date. Father’s
counsel stated that he had not heard from Father since his last court date and asked for a
continuance, which was denied. Trial proceeded, and DCS called two witnesses to testify.
Father called none.
First to testify was Lindsay Kenyon (“Ms. Kenyon”), the Child’s case manager.
According to Ms. Kenyon, Father committed crimes knowing that he would end up in jail
and thus be unable to parent the Child. In February 2019, Father pled guilty to assault and
violation of probation. In June 2019, he was arrested again. Ms. Kenyon testified:
“[Father] has not completed anything identified on the permanency plan. It’s unknown
1
The Child’s mother surrendered her parental rights to the Child. This appeal concerns only Father’s
parental rights.
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about his drug abuse or continuation of, he’s not had any alcohol and drug treatment. His
mental health has been a concern with domestic violence issues and no mental health
treatment.” Ms. Kenyon testified further: “To my knowledge, [Father] does not have
housing or a way to support himself or the child.”
Continuing her testimony, Ms. Kenyon stated that Father saw the Child in the
hospital and later saw a photograph of the Child. Ms. Kenyon testified that in August 2019,
Father was advised of and given a copy of the criteria and procedure for termination of
parental rights. In January 2020, Ms. Kenyon visited Father in jail and gave him another
copy, as well. Asked whether Father had made any adjustment of circumstance, Ms.
Kenyon stated that he had not: “Because of his incarceration. Also, he has not maintained
a relationship with the child, his mental health, his alcohol and drug, his housing, parenting
ability, and his income.” When asked about DCS’s efforts, Ms. Kenyon testified:
In the jail, we’re very limited. I did meet with him at the jail at least every
three months to go over the permanency plan with him. We discussed if he
were to get out for him to contact me within 24 hours, I would set up his
visitation, and also set up the identified assessments. The assessment that we
identify that he need [SIC], the full psychological, I don’t know of any
providers that would come into the jail. We have looked into that.
Ms. Kenyon stated that there was no meaningful relationship between Father and
the Child. Ms. Kenyon testified, on the other hand, that the Child was “very much” bonded
with her foster family. Ms. Kenyon stated that she was not aware of Father ever having
addressed his substance abuse issues. When asked why she believed Father required
mental health treatment, Ms. Kenyon answered: “Because there’s a long history with the
Department of Children’s Services in his previous case with the other children in which he
did not seek the help that he needed. He did have a mental health assessment in that
previous case, and he never followed up on the recommendations.” As to whether Father
had ever shown any genuine interest in the Child, Ms. Kenyon stated: “During the times
that I met with him at the jail, he spoke verbally of wanting to get to know her, and when
he got out, he would like a chance to parent her, but other than just verbal communication,
no.”
On cross-examination, Ms. Kenyon acknowledged that Father had only 16 or 17
days out of jail to work on his permanency plan. Ms. Kenyon acknowledged also that the
severe child abuse finding was based not on conduct against the Child, but rather her
siblings. Asked if Father could complete his permanency plan requirements while in jail,
Ms. Kenyon stated: “Not that I’m aware of.” Ms. Kenyon testified:
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A mental health assessment, he could have while he was in jail; however, he
had already previously had a mental health assessment. We identified that
that obviously did not help in the last case, so we felt like he needed a full
psychological in which they do more extensive testing, such as IQ. And so,
we do not have an assessor who could do a full psychological assessment on
him to come to the jail.
Ms. Kenyon testified also that Father had inquired about making video calls to the
Child. In the following exchange, Ms. Kenyon was asked about the relatively short amount
of time between the date the Child entered DCS custody and the date DCS filed its petition
to terminate parental rights:
Q. Okay. And we’ve already established that the child entered custody on
June the 11th, correct?
A. Yes.
Q. Okay. So, that means that the TPR petition was filed roughly five months
after the case opened, correct?
A. Yes.
Q. Okay. How long does DCS typically allow parents to work a permanency
plan prior to filing TPRs?
A. I know that we provide reasonable efforts for four months; however, in
some severe abuse cases, we file earlier than that.
Q. But isn’t it also true that the child typically has to be in the foster home
for six months prior to adoption?
A. Yes.
Q. Okay. So, then the TPR was filed prior to that six-month mark?
A. Yes.
Next and last to testify was Jennifer R. (“Foster Mother”), the Child’s maternal great
aunt and foster mother. Foster Mother testified that she wanted to adopt the Child. When
asked how she felt about the Child, Foster Mother testified: “I love her to death. She’s part
of my family.” According to Foster Mother, the Child called her “Ma-ma” and her husband
“Da-da.” Foster Mother testified that she had a strong bond with the Child and that the
Child needs permanency.
In February 2020, the Juvenile Court entered an order terminating Father’s parental
rights to the Child. The Juvenile Court found that all three grounds for termination alleged
by DCS had been proven by clear and convincing evidence: abandonment by wanton
disregard, severe child abuse, and failure to manifest an ability and willingness to assume
custody. The Juvenile Court found also by clear and convincing evidence that termination
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of Father’s parental rights is in the Child’s best interest. In its order, the Juvenile Court
stated, in part, as follows:
The Court found all of the State’s witnesses to be credible.
The Court finds that the State of Tennessee, Department of Children’s
Services has proven by clear and convincing evidence that grounds for
termination of parental rights exist based upon the following findings of fact.
The State has alleged three grounds for termination of parental rights,
the first of which is abandonment by wanton disregard. Tenn. Code Ann. §
36-1-113(g)(1) sets out abandonment as a ground for termination of parental
rights and abandonment is defined at Tenn. Code Ann. § 36-1-102(1)(A)(iv)
as a parent is incarcerated at the time of the institution of the action or
proceeding to declare a child abandoned. The proof has shown that [Father]
was incarcerated when the petition to terminate parental rights was filed on
November 25, 2019. He was incarcerated from June 27, 2019 until
yesterday, February 3, 2020. Then the statute goes on to say that the parent
has either failed to visit or failed to support, has engaged in conduct prior to
incarceration that exhibits a wanton disregard for the welfare of the child.
The Court finds that the State has established this ground of
abandonment by wanton disregard prior to incarceration. [Father]
voluntarily committed the criminal acts that he engaged in with the result that
he was incarcerated. His incarceration made him unavailable to parent his
child, showing a wanton disregard for the welfare of his child.
The second ground alleged by the State is found at Tenn. Code Ann.
§ 36-1-113(g)(4), and states that the parent has been found to have committed
severe child abuse under any prior order of a court. The State has submitted
a certified copy of the decree in the case involving [B. H.] and [P. D.]. That
is exhibit number nine filed on March 1, 2019. That order stated that the
Court finds by clear and convincing evidence that the children, [B. H.] and
[P. D.], are victims of sever[e] child abuse as defined by Tenn. Code Ann. §
37-1-102. It goes on more specifically and sets out that the children tested
positive for various drugs and finds that [Father] made admissions that he
knew that the mother was using opiates. Therefore, the order clearly
establishes that [Father] committed severe child abuse upon two other
children that are siblings to the child in question. So the Court finds that
ground is established by clear and convincing evidence.
The third ground alleged is failure to manifest an ability and
willingness to assume custody found at Tenn. Code Ann. § 36-1-113(g)(14).
The Court finds, based upon the proof, that the state has established that
ground by clear and convincing evidence. [Father] basically has done
nothing to show an ability or willingness to assume legal and physical
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custody of the child and placing the child in his custody would pose a risk of
substantial harm to the physical or psychological welfare of the child.
The Court finds that the State of Tennessee, Department of Children’s
Services has proven by clear and convincing evidence that termination of
parental rights is in the best interest of the [child] based upon the following
findings of fact.
Tenn. Code Ann. § 36-1-113(i) requires that the Court look at all of
the best interest factors listed. The first factor is whether the parent has made
an adjustment of circumstances to make it safe and in the child’s best interest
to be in the parent’s home. [Father] has done nothing, he has been in jail the
whole time that the child has been in foster care. He has no home for this
child to go to. This factor weighs in favor of terminating parental rights.
As to the second factor, whether the parent has made a lasting
adjustment, the proof is that [Father] has done nothing but stay in jail for the
entire time that the child has been in foster care. This factor weighs in favor
of terminating parental rights.
The third factor deals with visitation. The proof is that the father has
had no visitation with the child. This factor weighs in favor of terminating
parental rights.
The fourth factor looks to whether there is a meaningful relationship
between the father and the child. The Court finds that there is no relationship
between the father and the child. This factor weighs in favor of terminating
parental rights.
The fifth factor considers the effect a change in caretakers would have
on the child. The proof is that the child is in a good and loving home. The
child is very bonded to the foster parents. Changing caretakers at this point
would have a very detrimental effect on this child. This factor weighs in
favor of terminating parental rights.
The sixth factor considers whether the parent has shown neglect or
abuse toward the child or other children in the family or household. The
Court has already found that the father committed severe child abuse towards
the child’s siblings. This factor weighs in favor of terminating parental
rights.
The seventh factor looks to the whether the parent’s home is healthy
and safe. The father was released from jail yesterday and he has not provided
any proof to anyone that he has a home for the child. This factor weighs in
favor of terminating parental rights.
The eighth factor looks at whether the parent’s mental or emotional
status would be detrimental to the child. There has been testimony that the
father needs mental health treatment that he has not yet received. This factor
weighs in favor of terminating parental rights.
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The last factor is whether the parent has paid child support. The proof
is that the father has paid no child support. This factor weighs in favor of
terminating parental rights.
Thus the Court finds that the Tennessee Department of Children’s
Services has proven by clear and convincing evidence that grounds for
termination of parental rights exist and has proven by clear and convincing
evidence that it is in the best interest of the child that all the parental rights
of [Father] to [the Child] be forever terminated; and therefore the complete
custody, control, and guardianship of said child be awarded to the State of
Tennessee, Department of Children’s Services, with the right to place said
child for adoption and to consent to said adoption in loco parentis.
Father timely appealed to this Court.
Discussion
Although not stated exactly as such, Father raises the following issues on appeal: 1)
whether the Juvenile Court erred in finding the ground of abandonment by wanton
disregard; 2) whether the Juvenile Court erred in finding the ground of failure to manifest
an ability and willingness to assume custody; and, 3) whether the Juvenile Court erred in
finding that termination of Father’s parental rights is in the Child’s best interest.
As our Supreme Court has instructed regarding the standard of review in parental
rights termination cases:
A parent’s right to the care and custody of her child is among the
oldest of the judicially recognized fundamental liberty interests protected by
the Due Process Clauses of the federal and state constitutions.2 Troxel v.
Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000); Stanley
v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); In re
Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female
Child, 896 S.W.2d 546, 547-48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d
573, 578-79 (Tenn. 1993). But parental rights, although fundamental and
constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at
250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors .
. . .’ Tennessee law, thus, upholds the [S]tate’s authority as parens patriae
2
U.S. Const. amend. XIV § 1 (“[N]or shall any State deprive any person of life, liberty, or property, without
due process of law . . . .”). Similarly, article 1, section 8 of the Tennessee Constitution states “[t]hat no
man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled,
or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or
the law of the land.”
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when interference with parenting is necessary to prevent serious harm to a
child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d 425,
429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S. 745, 747,
102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982); In re Angela E., 303 S.W.3d at 250.
“When the State initiates a parental rights termination proceeding, it seeks
not merely to infringe that fundamental liberty interest, but to end it.”
Santosky, 455 U.S. at 759, 102 S. Ct. 1388. “Few consequences of judicial
action are so grave as the severance of natural family ties.” Id. at 787, 102
S.Ct. 1388; see also M.L.B. v. S.L.J., 519 U.S. 102, 119, 117 S. Ct. 555, 136
L. Ed. 2d 473 (1996). The parental rights at stake are “far more precious than
any property right.” Santosky, 455 U.S. at 758-59, 102 S. Ct. 1388.
Termination of parental rights has the legal effect of reducing the parent to
the role of a complete stranger and of “severing forever all legal rights and
obligations of the parent or guardian of the child.” Tenn. Code Ann. § 36-1-
113(l)(1); see also Santosky, 455 U.S. at 759, 102 S. Ct. 1388 (recognizing
that a decision terminating parental rights is “final and irrevocable”). In light
of the interests and consequences at stake, parents are constitutionally
entitled to “fundamentally fair procedures” in termination proceedings.
Santosky, 455 U.S. at 754, 102 S. Ct. 1388; see also Lassiter v. Dep’t of Soc.
Servs. of Durham Cnty., N.C., 452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d
640 (1981) (discussing the due process right of parents to fundamentally fair
procedures).
Among the constitutionally mandated “fundamentally fair
procedures” is a heightened standard of proof – clear and convincing
evidence. Santosky, 455 U.S. at 769, 102 S. Ct. 1388. This standard
minimizes the risk of unnecessary or erroneous governmental interference
with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 596
(Tenn. 2010). “Clear and convincing evidence enables the fact-finder to
form a firm belief or conviction regarding the truth of the facts, and
eliminates any serious or substantial doubt about the correctness of these
factual findings.” In re Bernard T., 319 S.W.3d at 596 (citations omitted).
The clear-and-convincing-evidence standard ensures that the facts are
established as highly probable, rather than as simply more probable than not.
In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re M.A.R.,
183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).
Tennessee statutes governing parental termination proceedings
incorporate this constitutionally mandated standard of proof. Tennessee
Code Annotated section 36-1-113(c) provides:
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Termination of parental or guardianship rights must be based
upon:
(1) A finding by the court by clear and convincing evidence that
the grounds for termination of parental or guardianship rights
have been established; and
(2) That termination of the parent’s or guardian’s rights is in the
best interests of the child.
This statute requires the State to establish by clear and convincing proof that
at least one of the enumerated statutory grounds3 for termination exists and
that termination is in the child’s best interests. In re Angela E., 303 S.W.3d
at 250; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002). “The best interests analysis is separate
from and subsequent to the determination that there is clear and convincing
evidence of grounds for termination.” In re Angela E., 303 S.W.3d at 254.
Although several factors relevant to the best interests analysis are statutorily
enumerated,4 the list is illustrative, not exclusive. The parties are free to offer
proof of other relevant factors. In re Audrey S., 182 S.W.3d at 878. The trial
court must then determine whether the combined weight of the facts
“amount[s] to clear and convincing evidence that termination is in the child’s
best interest.” In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015). These
requirements ensure that each parent receives the constitutionally required
“individualized determination that a parent is either unfit or will cause
substantial harm to his or her child before the fundamental right to the care
and custody of the child can be taken away.” In re Swanson, 2 S.W.3d 180,
188 (Tenn. 1999).
Furthermore, other statutes impose certain requirements upon trial
courts hearing termination petitions. A trial court must “ensure that the
hearing on the petition takes place within six (6) months of the date that the
petition is filed, unless the court determines an extension is in the best
interests of the child.” Tenn. Code Ann. § 36-1-113(k). A trial court must
“enter an order that makes specific findings of fact and conclusions of law
within thirty (30) days of the conclusion of the hearing.” Id. This portion of
the statute requires a trial court to make “findings of fact and conclusions of
law as to whether clear and convincing evidence establishes the existence of
each of the grounds asserted for terminating [parental] rights.” In re Angela
3
Tenn. Code Ann. § 36-1-113(g)(1)-(13).
4
Tenn. Code Ann. § 36-1-113(i).
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E., 303 S.W.3d at 255. “Should the trial court conclude that clear and
convincing evidence of ground(s) for termination does exist, then the trial
court must also make a written finding whether clear and convincing
evidence establishes that termination of [parental] rights is in the [child’s]
best interests.” Id. If the trial court’s best interests analysis “is based on
additional factual findings besides the ones made in conjunction with the
grounds for termination, the trial court must also include these findings in the
written order.” Id. Appellate courts “may not conduct de novo review of the
termination decision in the absence of such findings.” Id. (citing Adoption
Place, Inc. v. Doe, 273 S.W.3d 142, 151 & n.15 (Tenn. Ct. App. 2007)).
B. Standards of Appellate Review
An appellate court reviews a trial court’s findings of fact in
termination proceedings using the standard of review in Tenn. R. App. P.
13(d). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at
246. Under Rule 13(d), appellate courts review factual findings de novo on
the record and accord these findings a presumption of correctness unless the
evidence preponderates otherwise. In re Bernard T., 319 S.W.3d at 596; In
re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H., 215
S.W.3d 793, 809 (Tenn. 2007). In light of the heightened burden of proof in
termination proceedings, however, the reviewing court must make its own
determination as to whether the facts, either as found by the trial court or as
supported by a preponderance of the evidence, amount to clear and
convincing evidence of the elements necessary to terminate parental rights.
In re Bernard T., 319 S.W.3d at 596-97. The trial court’s ruling that the
evidence sufficiently supports termination of parental rights is a conclusion
of law, which appellate courts review de novo with no presumption of
correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re Adoption of
A.M.H., 215 S.W.3d at 810). Additionally, all other questions of law in
parental termination appeals, as in other appeals, are reviewed de novo with
no presumption of correctness. In re Angela E., 303 S.W.3d at 246.
In re Carrington H., 483 S.W.3d 507, 521-24 (Tenn. 2016) (footnotes in original but
renumbered). Clear and convincing evidence supporting any single ground will justify a
termination order. E.g., In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
Father has not challenged one of the grounds found against him—that of severe
child abuse. Our Supreme Court, however, has instructed “that in an appeal from an order
terminating parental rights the Court of Appeals must review the trial court’s findings as
to each ground for termination and as to whether termination is in the child’s best interests,
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regardless of whether the parent challenges these findings on appeal.” In re Carrington
H., 483 S.W.3d at 525-26 (footnote omitted). Therefore, we will review the ground of
severe child abuse, as well.
We first address whether the Juvenile Court erred in finding the ground of wanton
disregard. Wanton disregard is a type of abandonment. Tenn. Code Ann. § 36-1-113 states,
as pertinent:
(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following grounds
are cumulative and nonexclusive, so that listing conditions, acts or omissions
in one ground does not prevent them from coming within another ground:
(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
occurred; …
Tenn. Code Ann. § 36-1-113(g)(1) (Supp. 2019).5
Tenn. Code Ann. § 36-1-102 sets forth the relevant definition of abandonment as
follows:
As used in this part, unless the context otherwise requires:
(1)(A) For purposes of terminating the parental or guardian rights of a parent
or parents or a guardian or guardians of a child to that child in order to make
that child available for adoption, “abandonment” means that:
***
(iv) A parent or guardian is incarcerated at the time of the institution of an
action or proceeding to declare a child to be an abandoned child, or the parent
or guardian has been incarcerated during all or part of the four (4) months
immediately preceding the institution of such action or proceeding, and either
has failed to visit or has failed to support or has 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….
5
DCS filed its petition on November 25, 2019. We apply the version of the statute, and the others cited
herein, as they were in effect on that date.
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Tenn. Code Ann. § 36-1-102(1)(A)(iv) (Supp. 2019).
In In re Audrey S., this Court discussed and elaborated upon what sort of conduct
constitutes wanton disregard:
Tenn. Code Ann. § 36-1-102(1)(A)(iv) also reflects the commonsense
notion that parental incarceration is a strong indicator that there may be
problems in the home that threaten the welfare of the child. Incarceration
severely compromises a parent’s ability to perform his or her parental duties.
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. Taxonomy of Children’s Rights, 11 WM. & MARY BILL RTS. J. at 958.
However, parental incarceration is not an infallible predictor of parental
unfitness. Accordingly, Tenn. Code Ann. § 36-1-102(1)(A)(iv)’s second test
for abandonment does not make incarceration alone a ground for the
termination of parental rights. An incarcerated or recently incarcerated
parent can be found guilty 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. Thus, the parent’s
incarceration serves only 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.
***
We 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. See, e.g.,
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. Jan.11, 2005), perm. app. denied
(Tenn. Mar. 21, 2005); In re C. LaC., No. M2003-02164-COA-R3-PT, 2004
WL 533937, at *7 (Tenn. Ct. App. Mar. 17, 2004) (No Tenn. R. App. P. 11
application filed); In re C.T.S., 156 S.W.3d 18, 25 (Tenn. Ct. App. 2004); In
re C.W.W., 37 S.W.3d at 474-75.
In re Audrey S., 182 S.W.3d 838, 866-68 (Tenn. Ct. App. 2005) (footnote omitted).
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In his appellate brief, Father points out correctly that incarceration alone is an
insufficient basis for establishing the ground of wanton disregard. To recap, the Juvenile
Court found as to this ground: “[Father] voluntarily committed the criminal acts that he
engaged in with the result that he was incarcerated. His incarceration made him
unavailable to parent his child, showing a wanton disregard for the welfare of his child.”
Father would appear to have a good point as to the insufficiency of the Juvenile Court’s
findings as to this ground.
Nevertheless, DCS points to the case of In re Chyna L.M.D., No. E2012-00661-
COA-R3-PT, 2012 WL 3776699 (Tenn. Ct. App. Aug. 31, 2012), Rule 11 appl. perm.
appeal denied Nov. 14, 2012 for the proposition that a parent’s voluntary behavior that
leads to incarceration, and thus unavailability to parent, can form a basis for finding wanton
disregard. In In re Chyna L.M.D., a father facing prison was under consideration for
Enhanced Probation and the Community Alternatives to Prison Program (CAPP). Id. at
*2. However, the father behaved in a such a way at a court appearance that his offers were
withdrawn. Id. The trial court, in finding the ground of wanton disregard, stated in part:
6. [Father] may not have known that his girlfriend was pregnant with his
child prior to his arrest for violation of probation in March 2009. He certainly
knew that this was possible. He was well aware of the natural consequences
of unprotected sex and the likely outcome. On July 1, 2009, the day of his
hearing in Criminal Court, he certainly knew that [the Child’s mother] was
carrying his child. He remembers talking to the infant and patting the child
while “in the mother’s stomach.” He knew that he was facing a sentence of
more than seven years imprisonment (taking into account his previous jail
credits) and that any opportunity he might have to participate in raising his
child depended upon remaining in the community. He nevertheless behaved
in such a manner that he lost his acceptance into Enhanced Probation, he lost
his acceptance into CAPP, and he was sent directly [to] prison.
In re Chyna L.M.D., 2012 WL 3776699, at *2. On appeal to this Court, the father
challenged the trial court’s finding of wanton disregard. Id. at *3. In affirming, we stated:
The Trial Court found by clear and convincing evidence that Father
had exhibited a wanton disregard for the welfare of the Child when he
behaved in a manner during a court hearing that caused him to lose his
acceptance into CAPP and resulted in his being sent back to prison. The
evidence in the record on appeal shows that Father was out on probation prior
to the birth of the Child. The evidence also shows that Father violated his
probation, but was offered an alternative to being sent back to prison, which
would have allowed Father to remain in the community where he could
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participate in the Child’s life. The record further reveals that Father’s own
actions taken while Father knew that the Child’s mother was pregnant with
his baby insured that the offer of enhanced probation would be withdrawn
and that Father would be sent back to prison. Such behavior exhibits a
wanton disregard for the welfare of the Child. The evidence does not
preponderate against the Trial Court’s finding by clear and convincing
evidence that grounds existed to terminate Father’s parental rights to the
Child pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-
102(1)(A)(iv).
In re Chyna L.M.D., 2012 WL 3776699, at *5.
DCS is correct in that probation violations, criminal behavior, getting incarcerated
repeatedly, substance abuse, and other such conduct may give rise to wanton disregard. In
fact, we can well visualize a scenario where a parent’s one-time conduct is so egregious
that it could, by itself, constitute wanton disregard. However, we have cautioned that it is
necessary for courts to “to avoid making incarceration solely on its own into a de facto
ground for termination” as our General Assembly “has not deemed it appropriate to make
incarceration solely by itself a ground for termination.” In re Jonathan F., No. E2014-
01181-COA-R3-PT, 2015 WL 739638, at *13 (Tenn. Ct. App. Feb. 20, 2015), no appl.
perm. appeal filed. Although we made those statements in In re Jonathan F. as part of a
discussion about noncompliance with a permanency plan, they apply to wanton disregard,
as well.
In In re Chyna L.M.D., the trial court made specific factual findings as to how the
father’s behavior prior to his incarceration exhibited wanton disregard for the child’s
welfare. Here, the Juvenile Court made no specific findings. It found merely that Father
became incarcerated. We do not even know the status of his criminal charges. Here, as
opposed to the situation in In re Chyna L.M.D., the Juvenile Court’s findings as to wanton
disregard are based solely and exclusively on Father’s incarceration, without any additional
finding. Tennessee law requires more to sustain the ground of wanton disregard than just
incarceration. If a parent’s actions resulting in incarceration always are sufficient to show
wanton disregard, our General Assembly would just need to say incarceration alone is a
ground for termination of parental rights. It has not done so. This being so, we vacate the
ground of wanton disregard.
Although not raised by Father, we next address whether the Juvenile Court erred in
finding the ground of severe child abuse. This ground is defined as follows: “The parent
or guardian has been found to have committed severe child abuse, as defined in § 37-1-
102, under any prior order of a court or is found by the court hearing the petition to
terminate parental rights or the petition for adoption to have committed severe child abuse
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against any child[.]” Tenn. Code Ann. § 36-1-113(g)(4) (Supp. 2019). In a March 2019
order, the Juvenile Court found that Father committed severe child abuse, as defined at
Tenn. Code Ann. § 37-1-102, against two of the Child’s siblings for failure to protect them
from their mother’s drug exposure. We have previously determined that a prior finding by
a juvenile court in dependency and neglect proceedings can be res judicata in parental rights
termination proceedings. See In re Dakota C.R., 404 S.W.3d 484, 497 (Tenn. Ct. App.
2012). In those cases, the doctrine of res judicata prevents the issue from being re-litigated
in the subsequent parental rights termination proceeding. Id. The record contains no hint
that Father ever appealed the finding of severe child abuse. Father did not challenge the
finality or validity of the order finding severe child abuse either in the proceedings below
or on appeal. We find, as did the Juvenile Court, that the ground of severe child abuse was
proven by clear and convincing evidence.
The third issue we address is whether the Juvenile Court erred in finding the ground
of failure to manifest an ability and willingness to assume custody. This ground is defined
as follows: “A parent or guardian has failed to manifest, by act or omission, an ability and
willingness to personally assume legal and physical custody or financial responsibility of
the child, and placing the child in the person’s legal and physical custody would pose a risk
of substantial harm to the physical or psychological welfare of the child[.]” Tenn. Code
Ann. § 36-1-113(g)(14) (Supp. 2019). One panel of this Court has held that, to withstand
the first prong of this ground, a parent must manifest both ability and willingness to assume
legal and physical custody or financial responsibility of a child, not just one of the two.
See In re Amynn K., No. E2017-01866-COA-R3-PT, 2018 WL 3058280, at *12-14 (Tenn.
Ct. App. June 20, 2018), no appl. perm. appeal filed. Another panel of this Court has held
to the contrary, interpreting the statute to instead mean that a petitioner has to prove both
inability and unwillingness. See In re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL
2447044, at *7 (Tenn. Ct. App. May 31, 2018), no appl. perm. appeal filed. A split of
authority has since emerged.
Father appears to concede inability. However, Father asserts that he has manifested
willingness. Father argues that “he demonstrated a willingness to assume custody in that
he made the maximum effort to establish a relationship with [the Child] given the
circumstances of his incarceration and his inability to work the permanency plan put into
place for [the Child].” We note, first, that the ground of noncompliance with the
permanency plan neither was alleged nor found against Father. To that extent, Father is
pushing on an open door. As to Father’s “maximum effort,” from this record it appears to
consist of making some inquiries about video calls that led nowhere and saying that he
would like a chance to assume custody of the Child. However, mere words are a poor
substitute for actions. As this Court stated in In re Amynn K. with regard to willingness,
“Father’s actions, including his continued criminal activity and his failure to financially
support the Child, raise doubt as to Father’s actual willingness to assume custody or
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financial responsibility for the Child.” 2018 WL 3058280, at *15 (emphasis added). Here,
the Juvenile Court found that “[Father] basically has done nothing to show an ability or
willingness to assume legal and physical custody of the child….” Upon a careful review
of the record, the evidence does not preponderate against this finding. Indeed, Father did
not show up for trial even though he was released from jail and had notice of the
proceedings. We need not contend with the In re Amynn K./In re Ayden S. split of authority
because here, Father manifested neither the ability nor willingness to personally assume
legal and physical custody or financial responsibility of the Child.
The second prong of this ground requires us to determine whether “placing the child
in the person’s legal and physical custody would pose a risk of substantial harm to the
physical or psychological welfare of the child[.]” Tenn. Code Ann. § 36-1-113(g)(14)
(Supp. 2019). The evidence reflects that Father has unresolved substance abuse and mental
health issues. In addition, Father was found to have committed severe child abuse against
two of the Child’s siblings. Meanwhile, the Child is well-bonded in her foster family. The
Child has no relationship to speak of with Father. To remove the Child from a stable
environment and return her to Father’s custody poses a risk of substantial harm to the
Child’s physical as well as psychological welfare. We find, as did the Juvenile Court, that
the ground of failure to manifest an ability and willingness to assume custody was proven
by clear and convincing evidence.
The fourth and final issue we address is whether the Juvenile Court erred in finding
that termination of Father’s parental rights is in the Child’s best interest. The best interest
factors are set forth by statute as follows:
(i) 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
interest 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;
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(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 consistent with the
child support guidelines promulgated by the department pursuant to § 36-5-
101.
Tenn. Code Ann. § 36-1-113(i) (Supp. 2019).
Father argues that the Juvenile Court erred in its best interest analysis. Father states,
for instance, that he could not forge a relationship with the Child because of his
incarceration. However, the record largely is bereft of any actions on Father’s part to be a
parent, even bearing in mind the limits imposed by his incarceration. He did nothing of
substance. Father concedes that the Child is in a loving home but disputes how significant
a change of caretaker would be given the Child’s young age. However, we disagree with
Father’s speculation that no significant consequences would be had from removing the
Child from what undisputedly is a safe and loving home.
Perhaps the most crucial concern with respect to best interest is the fact that Father
was found to have committed severe child abuse against two of the Child’s siblings, which
stemmed from Father’s failure to protect them from drug exposure. That the underlying
conduct occurred against the Child’s siblings rather than the Child does not mean the Child
somehow would not face comparable danger were she to be placed in Father’s custody and
care, as the testimony from trial reflects that Father has not rectified his substance abuse or
mental health issues. Father’s substance abuse and mental health issues certainly are
relevant in considering the Child’s best interest, as is Father’s proclivity for going to jail.
The Juvenile Court made detailed findings in consideration of the statutory best interest
factors. Upon our careful review of the record, the evidence does not preponderate against
any of the relevant findings. We find, as did the Juvenile Court, the evidence to be clear
and convincing that termination of Father’s parental rights is in the Child’s best interest.
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Conclusion
The judgment of the Juvenile Court is vacated, in part, and affirmed, as modified,
resulting in our affirming the termination of Father’s parental rights, and this cause is
remanded to the Juvenile Court for collection of the costs below. The costs on appeal are
assessed against the Appellant, James H., and his surety, if any.
______________________________________
D. MICHAEL SWINEY, CHIEF JUDGE
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