                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                    November 9, 2011 Session

                                     IN RE REBEKAH R.W.

                    Appeal from the Juvenile Court for Monroe County
                          No. J08-116    J. Reed Dixon, Judge




               No. E2010-01786-COA-R3-PT-FILED-FEBRUARY 24, 2012


Perley W. Jr., (“Father”) appeals the termination of his rights to his minor daughter, Rebekah
R.W. (DOB: Oct. 7, 2005) (“the Child”).1 The petition to terminate was filed by Arlin H. and
Emma H. (collectively “the Grandparents”), the Child’s maternal grandparents, who were the
Child’s temporary custodians. At the time of the bench trial, Father was serving an effective
40-year prison sentence pursuant to two convictions for attempted murder and a conviction
for attempted aggravated arson. The court terminated Father’s rights based upon the ground
that Father was incarcerated under a sentence of ten or more years while the Child was under
eight years of age, and its finding that termination was in the best interest of the Child.
Father appeals the trial court’s best interest determination. Finding no error, we affirm the
judgment.

        Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
                             Affirmed; Case Remanded

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.

Barry K. Maxwell, Madisonville, Tennessee, for the appellant, Perley W., Jr.

Peter Alliman, Madisonville, Tennessee, for the appellee, Arlin H. and Emma H.




        1
          The trial court also terminated the rights of the Child’s mother, Amy W., on the ground that she
willfully abandoned the Child. Mother was served with the termination petition, but did not appear at trial
and a default judgment was entered against her. She is not a party to this appeal, and we refer to her only
as necessary to present the relevant underlying facts.
John William Cleveland, Sr., Sweetwater, Tennessee, Guardian ad litem.2

                                               OPINION

                                                     I.

        Trial was held in May 2010. In addition to Father, who was transported from prison
to attend the hearing, the court heard testimony from the Grandparents, a parole officer, and
the Grandparents’ acquaintances. The Child, by then age four and a half, had lived with the
Grandparents since they were awarded temporary custody of her in 2007. Prior to then, the
Child first lived with Amy W. (“Mother”) for several months and then, after Father obtained
legal custody, with him3 for about a year. In April 2007, the Department of Children’s
Services (“DCS”) obtained custody of the Child after removing her from Father pursuant to
a protective custody order. After she was adjudicated dependent and neglected in Father’s
care, the Child entered foster care. In July 2007, DCS placed the Child in the temporary
custody of the Grandparents, with whom she was still living at the time of trial. In March
2008, the Grandparents filed their petition seeking to permanently sever both parents’ rights
to the Child.

        At trial, grandmother testified that she and grandfather had little to no contact with
either Father or Mother and had received no support for the Child since she came to live with
them. When they picked her up, they immediately took her to the hospital for treatment of
a large boil with a staph infection that took over a year to resolve. Grandmother said that
initially, the Child was “very frightened [of] men,” and “very withdrawn.” Grandmother said,
however, that by the time of trial, the Child was “wonderful” and physically “very healthy.”
In addition, the Child had recently completed counseling sessions for her emotional issues;
grandmother said she “saw a new child emerging.” The Grandparents lived on a farm and the
Child enjoyed riding her pony, swimming, and playing with the dog they had bought her. In
addition, she had started learning to use a computer. Grandmother noted that the Child had
four half-siblings with whom she regularly spent time during their visits to the Grandparents’
home and other “play dates.” Regarding the Child’s parents, grandmother stated that Mother,
her daughter, had a drug problem and had been in and out of the Child’s life before absenting
herself completely. Grandmother said she initially had a “good opinion” of Father, even after
he admitted to once assaulting Mother, until after he threatened in a telephone call “to get”
grandmother. Grandfather corroborated grandmother’s testimony. He added that he would
question the ability and desire of someone like Father, with a history of criminal activity, to


       2
           The Guardian ad litem has adopted the brief of the Grandparents.
       3
           Father and Mother were never married to each other.

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care for a child. Grandfather believed the Child had been exposed to violence in the past
because he had witnessed her waking in the night, “hollering, ‘[p]lease don’t hit me, don’t
hit me, don’t hit me.’ ”

       Long-time friends of the Grandparents characterized them as “the nicest people”
whose integrity was “beyond reproach.” The friends testified to the effect that the
Grandparents and the Child shared a loving relationship and described the Child as “always
smiling.” The Grandparents stated they intended to file for adoption in the event the
termination petition was granted.

       The pre-sentence investigation report for Father’s most recent convictions revealed
an extensive criminal history dating back to 1990. Among his offenses were multiple driving
under the influence convictions, various drug-related crimes, burglary, habitual motor vehicle
offender, weapons possession, and two counts of aggravated assault.

       Father briefly testified that he and the Child shared a “pretty good relationship,” and
concluded: “I love her. She loves me.” Father stated that when he was able, he had cared
for the Child and provided her with a suitable home. He enjoyed spending time with the
Child and requested that he be permitted to retain his parental rights.

       At the conclusion of the trial, the court found that, as to both parents, grounds for
termination were established, and that termination is in the best interest of the Child, all by
clear and convincing evidence. As to Father, the trial court found one ground for termination
– that Father “was convicted in the Criminal Court for Monroe County, Tennessee, on
January 25, 2008 of two offenses of attempted first degree murder . . . and sentenced for
those convictions to an effective sentence of forty (40) years.4 ” See Tenn. Code Ann. § 36-1-
113(g)(6) (providing for termination where the “parent has been confined in a correctional
or detention facility of any type, by order of the court as a result of a criminal act, under a
sentence of ten (10) or more years, and the child is under eight (8) years of age at the time
the sentence is entered. . . .”). Father timely filed a notice of appeal. He challenges only
the court’s best interest determination.

                                                   II.

        Father presents one issue for our review:



        4
         The record reflects that, in addition, Father was convicted of one count of attempted aggravated
arson and sentenced to fifteen years to be served concurrently with the sentences for the attempted murder
convictions.

                                                   -3-
              Petitioners failed to meet their burden of proving that it was in
              the Child’s best interest to terminate Father’s parental rights.

                                               III.

       We employ the following standard of review in cases involving the termination of
parental rights:

              [T]his Court’s duty. . . is to determine whether the trial court’s
              findings, made under a clear and convincing standard, are
              supported by a preponderance of the evidence.

In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The trial court’s findings of fact are
reviewed de novo upon the record accompanied by a presumption of correctness unless the
preponderance of the evidence is against those findings. Id.; Tenn. R. App. P. 13(d). In
weighing the preponderance of the evidence, great weight is accorded to the trial court’s
determinations of witness credibility, which shall not be disturbed absent clear and
convincing evidence to the contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002).
Questions of law are reviewed de novo with no presumption of correctness. Langschmidt
v. Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).

       It is well established that parents have a fundamental right to the care, custody, and
control of their children. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551
(1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988). While parental rights are
superior to the claims of other persons and the government, they are not absolute, and they
may be terminated upon appropriate statutory grounds. See Blair v. Badenhope, 77 S.W.3d
137, 141 (Tenn. 2002).

       This Court has observed:

              In order to terminate a parent’s rights to his or her child, the trial
              court must make two findings. The court first must find . . . by
              clear and convincing evidence, that one of the asserted grounds
              for termination has been established. See Tenn. Code Ann. §
              36-1-113(c)(1) (Supp. 1998). Once the court has made this
              finding, the court additionally must find that termination of the
              parent’s rights is in the child’s best interests. See Tenn. Code
              Ann. § 36-1-113(c)(2) (Supp. 1998).




                                               -4-
In re C.W.W., 37 S.W.3d 467, 475-76, (Tenn. Ct. App. 2000). Both of these elements must
be established by clear and convincing evidence. See T.C.A. § 36-1-113(c)(1); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Evidence satisfying the clear and convincing
evidence standard establishes that the truth of the facts asserted is highly probable, State v.
Demarr, No. M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App. M.S.,
filed August 13, 2003), and eliminates any serious or substantial doubt about the correctness
of the conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at 546; In re S.M.,
149 S.W.3d 632, 639 (Tenn. Ct. App. 2004).

                                                      IV.

        Father does not challenge the trial court’s finding of a ground to terminate his parental
rights; nor could he have done so successfully. The judgments of conviction indisputably
establish a basis for terminating his rights pursuant to Tenn. Code Ann. § 36-1-113(g)(6).
Accordingly, we next consider whether there is clear and convincing evidence to support the
trial court’s best interest determination. Guided by the relevant statutory factors set forth in
Tenn. Code Ann. § 36-1-113(i),5 we conclude there is.


       5
           The factors are as follows:

                  (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;

                  (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;
                                                                                                 (continued...)

                                                      -5-
      In a nutshell, Father asserts that it is not in the Child’s best interest to terminate “the
one parent she had” because it gains her nothing; the Child is already in the Grandparents’
custody and Father will be unavailable to her for the foreseeable future.

       Regarding the Child’s best interest, the trial court stated:

                  [T]his is simply saying that this [C]hild, because of the
                  circumstances of both parents and her – where she finds herself
                  is in need of some permanency, some parents that can
                  participate, some parents that can be there, some parents that can
                  take her swimming and horseback riding, and make sure she
                  goes to school and does those things, provides for her in ways
                  that a
                  parent and only a parent that’s present can do.

                  And . . . it’s for another court to decide whether those parents
                  are [the Grandparents] on their petition for adoption. I certainly
                  find that it is in the best interest of the [C]hild to have a
                  permanency, and . . . that cannot [happen] – unless the [C]hild
                  is made available for adoption, which will happen, . . . as soon
                  as this case becomes final.

        In short, nothing in our review of the evidence undermines the court’s conclusion that
terminating Father’s rights is in the Child’s best interest. The proof showed that, as a result
of his continuing criminal behavior, Father had failed to adjust his circumstances or conduct


       5
           (...continued)
                   (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 or controlled substances 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.



                                                       -6-
to enable him to parent the Child. He is unavailable to support the Child’s basic needs or
build a meaningful presence in her life. Moreover, the Child had lived with the Grandparents
for some two and a half years by the time of trial and she was, by all accounts, healthy,
happy, and well-provided for with them. It appears that her emotional state has improved
with counseling and she is well-adjusted. Looking at the situation from the Child’s
perspective, as we must, the evidence preponderates overwhelmingly in favor of the court’s
finding that she needs and deserves the permanency that the Grandparents intend to provide.

        The evidence does not preponderate against the trial court’s finding, by clear and
convincing evidence, that it is in the Child’s best interest to terminate Father’s parental
rights.

                                              V.

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,
Perley W., Jr. This case is remanded to the trial court, pursuant to applicable law, for
enforcement of the trial court’s judgment and the collection of costs assessed below.




                                                    _______________________________
                                                    CHARLES D. SUSANO, JR., JUDGE




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