                                                                                                      08/30/2019
                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                             Assigned on Briefs February 1, 2019

                                 IN RE MATASIA R., ET AL.1

                   Appeal from the Juvenile Court for Hamblen County
                        No. 14870J    Janice Hope Snider, Judge


                                 No. E2018-01834-COA-R3-PT


This action involves the termination of a father’s parental rights to his minor children.
Following a bench trial, the trial court found that clear and convincing evidence existed
to support the statutory ground of abandonment by an incarcerated parent. The court
further found that termination was in the best interest of the children. We affirm.

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

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which RICHARD H.
DINKINS and ARNOLD B. GOLDIN, JJ., joined.

Russell S. Veldman, Chuckey, Tennessee, for the appellant, Robert R.

Herbert H. Slatery, III, Attorney General & Reporter, and Erin A. Shackelford, Assistant
Attorney General, for the appellee, State of Tennessee, Department of Children’s
Services.

                                             OPINION

                                     I.      BACKGROUND

       Matasia R. and KyJuan T. (collectively “the Children”) were born to Cissy S.
(“Mother”) in November 2006 and October 2010. Robert R. (“Father”) has been
adjudicated as the legal father of the Children, and he has evidenced this fact by his care
and attention to them. In 2007 and again in 2010, Father was awarded legal custody of
Matasia as a result of Mother’s history of drug abuse and child neglect. KyJuan was

1
  This court has a policy of protecting the identity of children in parental rights termination cases by
initializing the last name of the parties.
placed into the custody of the Tennessee Department of Children’s Services (“DCS”)
following his birth as a result of Mother’s drug use while pregnant. He was returned to
her on January 11, 2012, after Mother’s completion of a permanency plan and a trial
home placement.

        Matasia remained with Father, while Mother’s visitation rights were restricted to
supervised visitation by court order. Father maintained a nice home and lifestyle for
Matasia until he engaged in conduct that led to his arrest in February 2014 for theft. He
later pled guilty and was incarcerated on November 2015 for theft and the violation of a
prior community corrections sentence.2 Prior to his incarceration, he entrusted the care of
Matasia to his friend, Terra R. Father later authorized Mother to engage in unsupervised
visitation. However, Mother then refused to return Matasia to Terra R. at the appointed
time. Matasia remained with Mother until February 2016, when the Children were
removed due to allegations concerning Mother’s drug abuse and Father’s inability to care
for them while incarcerated.

       The Children were adjudicated as dependent and neglected and placed in a foster
home, where they have remained since that time. A permanency plan was created on
March 1, 2016, and revised on September 1, 2016. Both plans were ratified by the trial
court. Father was tasked with a number of requirements that were impossible to
complete while incarcerated. Further, DCS was unable to assist him in completing said
requirements because of the distance between the prison and DCS’s caseworker assigned
to represent the Children.

       DCS filed a petition to terminate Father’s parental rights on May 2, 2017, based
upon the statutory grounds of abandonment; substantial noncompliance with the
permanency plan; the persistence of conditions which led to removal; and Father’s
sentence of ten or more years.3 The case proceeded to a hearing on November 20, 2017,
at which DCS withdrew its request for termination based upon Father’s sentence.

       Father testified that he was charged with theft after he worked on his aunt’s car.
He explained that he put a new motor in her van at her request but that he put the old
motor back in when she refused to pay him for his work. She retrieved the van and
reported him for theft. He was charged with theft because the police could not find the
van. He stated that he was scheduled for a parole hearing on March 23, 2018. He
believed that he will have completed his sentence by that time and will be released.


2
 Father had been convicted of the sale and delivery of cocaine in 2004, for which he received a sentence
of community corrections prior to either child’s birth.
3
    Mother’s parental rights were also terminated. She is not a party to this appeal.
                                                     -2-
        Father stated that prior to his incarceration, he was granted 15 days to make
arrangements for Matasia. He found a notary and relinquished custody to Terra R. during
that time. He helped Matasia transition to her new home and then reported to jail as
directed. He later allowed Matasia to visit Mother; however, he called the police and
DCS when Mother refused to return Matasia. He claimed that the police refused to
remove Matasia because she was with her biological mother. DCS also refused to take
action, despite his frequent requests for assistance in removing Matasia from Mother. He
then asked Mother’s neighbor to report Mother for neglect and drug abuse. He claimed
that the Children were finally removed by DCS as a result of the neighbor’s allegations.

       Father identified a plethora of correspondence between himself and the Children.
He stated that he spoke with them on a weekly basis, when possible. He also made them
leather belts and purses to give to them as gifts. He expressed love for them and claimed
that he cared for KyJuan in Mother’s absence even though she technically had legal
custody of him. He explained that Mother would disappear for months prior to his
incarceration. He provided that he also reported Mother for her drug use while pregnant
but that DCS failed to take action. He alleged that KyJuan was born with spina bifida as
a result of Mother’s drug use while pregnant.

        April Turner, the family case worker, testified that the Children last came into
custody in February 2016 based upon allegations of Mother’s drug abuse and Father’s
inability to care for them as a result of his incarceration. She advised Father of the
Criteria and Procedures for Termination of his parental rights by telephone due to his
incarceration. She explained that he has been incarcerated for the entire time the
Children have been custody. She conceded that he was eligible for parole in March 2018
but claimed that his official release date was not until 2022.

        Ms. Turner testified that Father attempted to complete some permanency plan
requirements and was able to maintain regular contact with the Children by telephone,
despite his incarceration. She explained that the classes and workshops he attended while
incarcerated would not fulfill the plan requirements because the classes were not certified
through DCS. She acknowledged that she also could not facilitate other necessary
services in compliance with the permanency plans due to Father’s incarceration. She
agreed that she was not even authorized to meet with Father at the prison due to travel
restrictions placed upon her by DCS.

       Ms. Turner stated that she arranged a visit for the Children with Terra R., a family
friend. She did not observe a bond between Terra and the Children. She claimed that
Matasia advised her that she was not comfortable with Terra and did not know her well.
She stated that the Children were placed in the same foster home and each had prior

                                           -3-
involvement with the same foster family during prior periods of removal. She believed
the Children had adjusted well and expressed excitement about their future in the home.

       Foster Mother testified that the Children have been in her home since February
2016 and are doing well. She believed they were bonded to the other children in the
home. She expressed love and concern for them and indicated a desire to adopt them.
She evidenced knowledge of KyJuan’s medical condition and a willingness to assist him
in his long-term care. She provided that he was eligible for surgery to better his
condition but that his doctor would not perform the procedure until his family life was
stable. She confirmed that Father had provided some gifts for the Children and
maintained regular telephone contact.

       Terra R. testified that she indicated her willingness to take foster classes and
qualify as a placement for the Children. She also visited with the Children when
permitted by DCS. She was later advised that there was no need to become a certified
foster parent because Matasia did not want to reside with her.

        On January 11, 2018, the trial court found that termination was not in the best
interest of the Children at that time based upon Father’s upcoming parole hearing and
possible release. Father’s parole hearing did not occur as scheduled due to his failure to
complete the proper paperwork. Thereafter, DCS moved for an order terminating
Father’s parental rights as a result of his failure to obtain parole. The trial court reopened
the proof to consider the fact that parole had been denied. The court then granted the
termination petition, sustaining only one of the three grounds alleged, namely
abandonment based upon Father’s conduct prior to incarceration. The court further found
that termination was in the best interest of the Children. This timely appeal followed.

                                              II.      ISSUES

        We consolidate and restate the issues on appeal as follows:

        A.     Whether clear and convincing evidence supports the court’s
        termination based upon a finding of abandonment related to Father’s
        conduct prior to incarceration pursuant to Tennessee Code Annotated
        section 36-1-102(1)(A)(iv).4




4
  Father claims that the court erred in terminating his rights based upon his sentence of ten years or more
pursuant to Tennessee Code Annotated section 36-1-113(g)(6). The record reflects that DCS withdrew
this ground prior to the hearing and that the court did not consider this ground as a basis for termination.
                                                     -4-
       B.     Whether clear and convincing evidence supports the court’s finding
       that termination was in the best interest of the Children pursuant to
       Tennessee Code Annotated section 36-1-113(i).

                             III.   STANDARD OF REVIEW

       Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988). This right “is among the oldest of the judicially recognized liberty interests
protected by the Due Process Clauses of the federal and state constitutions.” In re M.J.B.,
140 S.W.3d 643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a
parent is a grave and final decision, irrevocably altering the lives of the parent and child
involved and ‘severing forever all legal rights and obligations’ of the parent.” Means v.
Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-
113(I)(1)). “‘[F]ew consequences of judicial action are so grave as the severance of
natural family ties.’” M.L.B. v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v.
Kramer, 455 U.S. 745, 787 (1982)).

       While parental rights are superior to the claims of other persons and the
government, they are not absolute and may be terminated upon appropriate statutory
grounds. See Blair v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process
requires clear and convincing evidence of the existence of the grounds for termination.
In re Drinnon, 776 S.W.2d at 97. A parent’s rights may be terminated only 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)    [t]hat termination of the parent’s or guardian’s rights is in the best
       interest[] of the child.

Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing
evidence proves not only that statutory grounds exist [for the termination] but also that
termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The existence of at least one statutory basis for termination of parental rights will
support the trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467,
473 (Tenn. Ct. App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d
838 (Tenn. Ct. App. 2005).

      The heightened burden of proof in parental termination cases minimizes the risk of
erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,
                                            -5-
622 (Tenn. Ct. App. 1998). 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.
Aug. 13, 2003). This evidence also 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); In re J.J.C., 148 S.W.3d
919, 925 (Tenn. Ct. App. 2004). It produces in a fact-finder’s mind a firm belief or
conviction regarding the truth of the facts sought to be established. In re A.D.A., 84
S.W.3d 592, 596 (Tenn. Ct. App. 2002); Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App.
2001); In re C.W.W., 37 S.W.3d at 474.

      In 2016, the Tennessee Supreme Court provided guidance to this court in
reviewing cases involving the termination of parental rights:

      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.

In re Carrington H., 483 S.W.3d 507, 523-24 (Tenn. 2016) (internal citations omitted).

                                 IV.     DISCUSSION

                                            A.

       Parental rights may be terminated if the parent has been incarcerated during all or
part of the four months immediately preceding the filing of the termination petition and
has engaged in conduct prior to incarceration that exhibits a wanton disregard for the
child’s welfare. Tenn. Code Ann. § 36-1-102(1)(A)(iv). To prove this ground, DCS
must establish that (1) Father was incarcerated at the time the termination petition was
filed or within the preceding four-month period and that (2) he engaged in conduct prior
                                           -6-
to incarceration that exhibits a wanton disregard for the welfare of the child. Tenn. Code
Ann. § 36-1-102(1)(A)(iv); In re Kason C., No. M2013-02624-COA-R3-PT, 2014 WL
2768003, *5 (Tenn. Ct. App. June 17, 2014).

        Here, Father was incarcerated for the entirety of the four months preceding the
filing of the termination petition. The applicable four-month window was from July 12,
2015, through November 11, 2015.5 This court has held that such conduct may occur at
any time prior to incarceration and is not limited to acts occurring during the four-month
period immediately preceding the incarceration. State of Tenn., Dep’t. of Children’s
Servs. v. Hood, 338 S.W.3d 917, 926 (Tenn. Ct. App. 2009). We have held on numerous
occasions 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.

        Here, Father was charged and ultimately pled guilty to theft for his involvement in
a dispute with his aunt concerning his repair of her van. While this conduct alone may
not rise to the level of wanton disregard, Father was serving a sentence of community
corrections when he engaged in such criminal behavior. He was also aware that violating
the terms of his conditional release would result in an extended period of confinement,
leaving the Children without adequate supervision given Mother’s inability to care for
them as a result of her drug use. Further, he entrusted Matasia to the care of Terra R.
prior to his incarceration and then later authorized Mother to have unsupervised visitation
with Matasia while he was incarcerated. Terra R. was then unable to retrieve Matasia
when Mother refused to return her at the appointed time, thereby resulting in the
Children’s removal by DCS and placement in foster care. In terminating his parental
rights, the trial court relied upon Father’s conduct prior to incarceration that led to the
violation of his community corrections sentence, along with his authorization of Mother
to engage in unsupervised visitation, despite his concerns with her ability to care for the
Children and a prior court order limiting her to supervised visitation with Matasia. We
agree with the trial court that the totality of the circumstances presented in this case
support a finding of wanton disregard for the welfare of the Children. Accordingly, we
affirm the court’s finding of abandonment.




5
  Father’s period of incarceration prior to the filing of termination petition began on November 12, 2015.
“The applicable four-month window . . . includes the four months preceding the day the petition to
terminate parental rights is filed but excludes the day the petition is filed.” In re Jacob C.H., No. E2013-
00587-COA-R3-PT, 2014 WL 689085, at *6 (Tenn. Ct. App. Feb. 20, 2014). We reason the same holds
true for the start date of the parent’s incarceration.
                                                       -7-
                                                     B.

       Having concluded that there was clear and convincing evidence supporting at least
one statutory ground of termination, we must consider whether termination was in the
best interest of the Children. In making this determination, we are guided by the
following non-exhaustive list of factors:

        (i)     In determining whether termination of parental or guardianship
        rights is in the best interest of the child . . . 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;6

            (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 or controlled substances as may


6
  In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015) (“[I]n a termination proceeding, the extent of
DCS’s efforts to reunify the family is weighed in the court’s best-interest analysis, but proof of reasonable
efforts is not a precondition to termination of the parental rights of the respondent parent.”).
                                                     -8-
          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 [section] 36-5-101.

Tenn. Code Ann. § 36-1-113(i). “This list is not exhaustive, and the statute does not
require a trial court to find the existence of each enumerated factor before it may
conclude that terminating a parent’s parental rights is in the best interest of a child.” In re
M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). The General Assembly has also
stated that “when the best interest[] of the child and those of the adults are in conflict,
such conflict shall always be resolved to favor the rights and the best interest[] of the
child, which interests are hereby recognized as constitutionally protected.” Tenn. Code
Ann. § 36-1-101(d); see also White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App.
2004) (holding that when considering a child’s best interest, the court must take the
child’s perspective, rather than the parent’s).

       We acknowledge Father’s efforts to maintain a relationship with the Children
while incarcerated and his completion of classes and programs to aid him in his eventual
release. However, the fact remains that Father is still incarcerated, leaving him unable to
care for the Children. Tenn. Code Ann. § 36-1-113(i)(1), (7), (9). Meanwhile, the
Children have bonded to a foster family and are thriving. A change of caretakers at this
point in the Children’s life would be detrimental to their emotional condition and
KyJuan’s medical condition. Tenn. Code Ann. § 36-1-113(i)(5). The Children should be
allowed to achieve permanency and stability in their current home. KyJuan should also
be allowed to progress in the treatment of his condition with the support of a stable
family. With all of the above considerations in mind, we conclude that there was clear
and convincing evidence to establish that termination of Father’s parental rights was in
the best interest of the Children. We affirm the trial court.




                                             -9-
                                  V.    CONCLUSION

      The judgment of the trial court is affirmed. The case is remanded for such further
proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Robert
R.


                                                  _________________________________
                                                  JOHN W. McCLARTY, JUDGE




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