                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                           Assigned on Briefs April 14, 2014

                                IN RE KASON C. ET AL.

                Appeal from the Juvenile Court for Rutherford County
                  No. TC 1945T      Donna Scott Davenport, Judge


                  No. M2013-02624-COA-R3-PT- Filed June 17, 2014


Father appeals the termination of his parental rights to his two children. The juvenile court
found the Department of Children’s Services established four grounds for termination of
father’s parental rights: 1) parent sentenced to ten or more years for any criminal act and the
children are under eight years of age pursuant to Tenn. Code Ann. § 36-1-113(g)(6); 2)
parent sentenced to more than two years for conduct against a child or sibling/half-sibling
of the child who is the subject of the petition pursuant to Tenn. Code Ann. § 36-1-113(g)(5);
3) abandonment by wanton disregard pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and
36-1-102(1)(A)(iv); and 4) substantial noncompliance with the permanency plan pursuant
to Tenn. Code Ann. § 36-1-113(g)(2). The juvenile court also found that termination of
Father’s rights was in the children’s best interest. Father appealed. We affirm.

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

F RANK G. C LEMENT, J R., P.J., M.S., delivered the opinion of the Court, in which A NDY D.
B ENNETT and R ICHARD H. D INKINS, J.J., joined.

Mark J. Downton, Nashville, Tennessee, for the appellant, Glenn C.

Robert E. Cooper, Jr., Attorney General and Reporter, Alexander S. Rieger, Assistant
Attorney General, Mary Byrd Ferrara, and Matthew Franciscus Wright, Nashville,
Tennessee, for the appellee, Tennessee Department of Children’s Services.
                                                OPINION

       This case involves the termination of the parental rights of Glenn C. (“Father”) to his
children Kason C.1 , born October 2010, and Kyley C., born June 2012.2

        Father has remained incarcerated since November 2011 serving a 26-year sentence
for attempted voluntary manslaughter and attempted aggravated child abuse and neglect; a
conviction which resulted from his actions against Kason on November 28, 2011. The
affidavit of complaint stated that when Father was confronted by the Murfreesboro Police
Department he attempted to twist Kason’s neck and said “if it is going to be like that.”
Subsequently, on the same day, Kason entered into the custody of the Department of
Children’s Services (“the Department”) and was placed in a foster home because no other
family members could be located. On November 6, 2012, the Rutherford County Circuit
Court found Kason to be dependent and neglected due to severe child abuse by Father.3

        While Father was incarcerated, Kyley was born in June 2012 and entered the
Department’s custody three days later; Kyley was placed in the same foster home as Kason.4
On December 12, 2012, Kyley was found to be dependent and neglected, and being “without
a parent” pursuant to Tenn. Code Ann. § 37-1-102(b)(12)(A), due to Father’s incarceration
at the time of removal.

       The Department filed a petition to terminate Father’s parental rights on February 15,
2013; a hearing for the termination took place on September 17, 2013. The juvenile court
entered an order which terminated Father’s parental rights on October 30, 2013. The court
found by clear and convincing evidence that four grounds for termination existed: 1) Father
was sentenced to ten or more years for a criminal act and the children were under 8 years of


        1
          This court has a policy of protecting the identity of children in parental termination cases by
initializing the last names of the parties.
        2
         The mother of the children surrendered her parental rights on March 8, 2013 and the parental rights
of the mother’s husband were terminated on August 14, 2013; neither are at issue in this appeal.
        3
         Father appealed the court’s finding that he knowingly used force upon the child, which was likely
to cause serious bodily injury. This court affirmed the trial court’s finding on May 7, 2014, in its opinion In
re Kason K.C., M2013-01607-COA-R3-JV, 2014 WL 1878767 (Tenn. Ct. App. May 7, 2014). However, this
ground was not relied upon by the Department in the parental termination hearing and is not at issue in this
appeal.
        4
        When Kyley was born, she tested positive for Opiates. The mother, while pregnant, and with
knowledge of her pregnancy, used Methamphetamine and Cocaine; therefore, Kyley was removed from the
mother’s home.

                                                     -2-
age pursuant to Tenn. Code Ann. § 36-1-113(g)(6); 2) Father was sentenced to more than two
years for conduct against a child or sibling/half-sibling of the child who is the subject of the
petition pursuant to Tenn. Code Ann. § 36-1-113(g)(5); 3) abandonment by wanton disregard
pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv); and 4) substantial
noncompliance with the permanency plan pursuant to Tenn. Code Ann. § 36-1-113(g)(2).
The juvenile court also found that termination of Father’s rights was in the best interests of
the children. Father appeals.

                                       S TANDARD OF R EVIEW

        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 best interest of the child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of Angela E.,
402 S.W.3d 636, 639 (Tenn. 2013) (citing In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002)). When a trial court has made findings of fact, we review the findings de novo on the
record with a presumption of correctness unless the preponderance of the evidence is
otherwise. Tenn. R. App. P. 13(d); In re Adoption of Angela E., 402 S.W.3d at 639 (citing
In re Taylor B.W., 397 S.W.3d 105, 112 (Tenn. 2013)). We next review the trial court’s order
de novo to determine whether the facts amount to clear and convincing evidence that one of
the statutory grounds for termination exists and if so whether the termination of parental
rights is in the best interests of the children. Id. Clear and convincing evidence is “evidence
in which there is no serious or substantial doubt about the correctness of the conclusions
drawn from the evidence.” Id. (citing In re Valentine, 79 S.W.3d at 546 (quoting Hodges v.
S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn. 1992)) (internal quotation marks omitted).

                                              A NALYSIS

       Father asserts the juvenile court erred in finding several grounds for termination based
entirely upon his convictions for attempted voluntary manslaughter and attempted aggravated
child abuse/neglect of a child under 8 years of age which were on direct appeal to the
Tennessee Court of Criminal Appeals.5

     I. P ARENT S ENTENCED TO T EN OR M ORE Y EARS FOR ANY C RIMINAL A CT AND THE
                         C HILDREN ARE U NDER 8 Y EARS OF A GE

       Tennessee Code Annotated § 36-1-113(g)(6) is a ground for the termination of
parental rights and applies when “the parent has been confined in a correctional or detention


        5
          The Tennessee Court of Criminal Appeals has not yet issued an opinion in Father’s pending appeal
of his criminal convictions and sentences.

                                                   -3-
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 by the court[.]” Tenn. Code Ann. § 36-1-113(g)(6).

       At the parental termination hearing, Father testified that he is currently serving a 26-
year prison sentence for a conviction of attempted voluntary manslaughter and attempted
aggravated child abuse and neglect of a child under 8 years of age. A certified copy of the
convictions and sentence were entered into evidence. The juvenile court found that at the
time Father’s criminal sentence was entered on June 27, 2012 and both children were less
than 8 years of age.6

       Counsel for Father presented argument at the termination hearing that a finding of this
ground should be denied as Father’s criminal conviction and sentence were on direct appeal
to the Criminal Court of Appeals. The juvenile court addressed this issue in its final order
stating:

        [A parent’s] convictions . . . are entitled to a presumption of correctness unless
        and until they have been set aside by a court of competent jurisdiction. Thus
        we have repeatedly recognized that a court considering a Petition for
        Termination of Parental Rights based on T.C.A. § 36-1-113(g)(6) need not
        look beyond the judgment of conviction and the sentence imposed by the
        criminal court in order to determine whether this ground applies. . . . If the
        mere possibility that a conviction might be reversed, or a sentence reduced, at
        some point in the future were sufficient to defeat the application of this ground
        for termination of parental rights, then T.C.A. § 36-1-113(g)(6) would be a
        dead letter. . . .

        ****
        We have consistently held that a trial court should not consider appeals and
        postconviction relief proceedings in deciding whether grounds for termination
        of parental rights exists pursuant to T.C.A. § 36-1-113(g)(6).

In re M.L.P., 228 S.W.3d 139 (Tenn. Ct. App. 2007)(quoting In re Audrey S., 182 S.W.3d
838, 876 (Tenn. Ct. App. 2005)).7


        6
            Kason was 22 months old and Kyley, born June 26, 2012, was one day old.
        7
        The juvenile court’s direct quote from In re M.L.P. was an internal quote from In re Audrey S., 182
S.W.3d 838, 876 (Tenn. Ct. App. 2005). The juvenile court referred to Jamie. F. as the “parent in the M.L.P.
                                                                                              (continued...)

                                                    -4-
      The juvenile court stated the authority supra is “very persuasive, clear and . . .
supports the court’s position that [Father’s] pending criminal appeal is not a bar to this
termination ground being granted.” The juvenile court found Father had been sentenced to
10 or more years, and at the time of sentencing the children were under 8 years of age.
Accordingly, the juvenile court found that the ground codified at Tenn. Code Ann. §
36-1-113(g)(6) had been proven by clear and convincing evidence.

       On appeal, Father contends the juvenile court erred in finding this ground existed
because his appeal of the conviction and sentence had not been exhausted and, therefore, are
not final judgments. In making this argument Father relies on Creech v. Addington, 281
S.W.3d 363, 377-78 (Tenn. 2009), which held that a judgment cannot be deemed final until
the time to appeal the judgment has passed, or all appeals are resolved.

        An argument similar to Father’s was presented in In re C.M.R., No. M2001-00638-
COA-R3-JV, 2002 WL 192562 (Tenn. Ct. App. Feb. 7, 2002). The father in that case was
not asking the court to fashion a rule that required termination proceedings to await the final
conclusion of the appellate process; instead, he argued the termination proceeding should
have been continued pending disposition of his motion for a new trial in his criminal case.
Id. at *4. This court found his argument “unavailing,” stating: “Statutory grounds may be
proved by evidence of conviction, and we find no basis for a requirement that a child remain
ineligible for adoption and the possibility of a permanent home while her parent pursues
reversal of the conviction.” Id.

        It is well established that a trial court should not consider appeals and postconviction
relief proceedings in deciding whether grounds for termination of parental rights exist
pursuant to Tenn. Code Ann. § 36-1-113(g)(6). See, e.g., In re M.L.P., 228 S.W.3d at 145;
In re Audrey S., 182 S.W.3d at 876; M.P.P. v. D.L.K., No. E2001-00706-COA-R3-CV, 2002
WL 459010, at *4-5 (Tenn. Ct. App. Mar. 26, 2002); In re C.M.R., 2002 WL 192562, at *4;
In re Adoption of Copeland, 43 S.W.3d 483, 489 (Tenn. Ct. App. 2000). “If the mere
possibility that a conviction might be reversed, or a sentence reduced, at some point in the
future were sufficient to defeat the application of this ground for termination of parental
rights, then Tenn. Code Ann. § 36-1-113(g)(6) would be a dead letter.” In re Audrey S., 182
S.W.3d at 876.

      The evidence in the record clearly and convincingly established that Father has been
confined in a correctional or detention facility by order of the court as a result of a criminal


        7
         (...continued)
action;” however, this reference is incorrect as Jamie F. was the mother in In re Audrey S. Nevertheless, the
juvenile court’s error in citation has no effect on the authority quoted.

                                                    -5-
act, under a sentence of 26 years, and at the time of sentencing the children were under 8
years of age. Therefore, we affirm the juvenile court’s finding that the Department proved
incarceration under a sentence of 10 years or more imposed when the child was less than 8
years old as a ground for termination of Father’s parental rights pursuant to Tennessee Code
Annotated § 36-1-113(g)(6).

        Although parental rights may be terminated when only one statutorily defined ground
is established, Tennessee Code Annotated § 36-1-113(c)(1); Jones v. Garrett, 92 S.W.3d 835,
838 (Tenn. 2002); In re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998), we shall
address the other grounds for termination of Father’s parental rights.

II. P ARENT S ENTENCED TO M ORE THAN T WO Y EARS FOR C ONDUCT A GAINST A C HILD OR
       S IBLING/H ALF-S IBLING OF THE C HILD WHO IS THE S UBJECT OF THE P ETITION

       Tennessee Code Annotated § 36-1-113(g)(5) is a ground for the termination of
parental rights and applies when:

       The parent or guardian has been sentenced to more than two (2) years’
       imprisonment for conduct against the child who is the subject of the petition,
       or for conduct against any sibling or half-sibling of the child or any other child
       residing temporarily or permanently in the home of such parent or guardian,
       that has been found under any prior order of a court or that is found by the
       court hearing the petition to be severe child abuse, as defined in § 37-1-102.
       Unless otherwise stated . . . “sentenced” shall not be construed to mean that the
       parent or guardian must have actually served more than two (2) years in
       confinement, but shall only be construed to mean that the court had imposed
       a sentence of two (2) or more years upon the parent or guardian.

Tenn. Code Ann. § 36-1-113(g)(5) (emphasis added).

        Father was convicted on May 3, 2012, of the crimes of attempted voluntary
manslaughter and attempted aggravated child abuse/neglect of a child under 8 years of age;
the criminal conviction noted, and Father admitted at the termination hearing, that the victim
was Father’s child, Kason. Father was sentenced on June 27, 2012, to 26 years of
incarceration, which greatly exceeds the two year requirement; Kason was the victim of the
convictions and is the subject of the petition to terminate; Kyley is a full sibling of Kason,
a fact Father does not dispute. Accordingly, the juvenile court found by clear and convincing
evidence that Father’s parental rights should be terminated pursuant to Tenn. Code Ann. §
36-1-113(g)(5).



                                              -6-
      Father presents the same argument as stated previously; the finding of a ground for
termination pursuant to Tenn. Code Ann. § 36-1-113(g)(5) was in error due to Father’s
conviction being on direct appeal to the Tennessee Criminal Court of Appeals.

        For reasons already addressed, we find Father’s argument ineffective. The evidence
in the record clearly and convincingly established that Father has been sentenced to more
than two years imprisonment for conduct against Kason, a child who is the subject of the
petition and the sibling of Kyley. Therefore, we affirm the juvenile court’s finding that the
Department proved a ground for termination of Father’s parental rights pursuant to
Tennessee Code Annotated § 36-1-113(g)(5).

                        III. A BANDONMENT - W ANTON D ISREGARD

      Termination of parental rights on the ground of abandonment by wanton disregard,
pursuant to Tennessee Code Annotated § 36-1-102(1)(A)(iv) is found when:

       A parent or guardian is incarcerated at the time of the institution of an action
       or proceeding to declare a child to be an abandoned child, or the parent or
       guardian has been incarcerated during all or part of the four (4) months
       immediately preceding the institution of such action or proceeding, and either
       has willfully failed to visit or has willfully failed to support or has willfully
       failed to make reasonable payments toward the support of the child for four (4)
       consecutive months immediately preceding such parent’s or guardian’s
       incarceration, or the parent or guardian has engaged in conduct prior to
       incarceration that exhibits a wanton disregard for the welfare of the child[.]

Tenn. Code Ann. §§ 36-1-113(g)(1); 36-1-102(1)(A)(iv) (emphasis added).

       “Parental conduct exhibiting wanton disregard for a child’s welfare may occur at any
time prior to incarceration and is not limited to acts occurring during the four-month period
immediately preceding the parent’s incarceration.” State of Tennessee, Dept. of Children’s
Servs. v. Hood, 338 S.W.3d 917, 926 (Tenn. Ct. App. 2009) (citing In re Jeremiah T., No.
E2008-02099-COA-R3-PT, 2009 WL 1162860, *8 (Tenn. Ct. App. April 30, 2009); In re
Audrey S., 182 S.W.3d at 871). Moreover, “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.” In re Audrey S., 182 S.W.3d at
867-68 (emphasis added) (citations omitted).




                                              -7-
       Father has remained incarcerated since his arrest on November 28, 2011, for actions
against his child, Kason. Prior to his current incarceration, Father testified that he had a
probation violation in the spring of 2011 and, as a result, was incarcerated for a short time.
Father also testified that he plead guilty to theft in October 2009 and vandalism in February
2011.

        The juvenile court found Father was incarcerated during four months prior to the
Department’s filing of the petition to terminate parental rights on February 15, 2013, and
prior to his November incarceration he engaged in conduct that exhibited a wanton disregard
for the welfare of the children. Accordingly, the juvenile court found that the ground of
wanton disregard for the welfare of the children had been proven by clear and convincing
evidence.

        In this case, the evidence clearly and convincingly establishes that more than one of
the elements set forth by In re Audrey S., constituting conduct that exhibits a wanton
disregard for the welfare of a child, have been proven. Id. at 867-68. Thus, the juvenile court
did not err in finding that Father’s pre-incarceration conduct displayed a wanton disregard
for the welfare of the children. We affirm the juvenile court’s finding that the Department
proved a ground for termination of Father’s parental rights pursuant to Tennessee Code
Annotated §§ 36-1-113(g)(1); 36-1-102(1)(A)(iv).

             IV. S UBSTANTIAL N ONCOMPLIANCE WITH A P ERMANENCY P LAN

        The juvenile court found Father failed to take necessary steps to provide an
appropriate home for his children, specifically, “[Father], of his own free will, committed
crimes that led to his current incarceration and his home, a jail cell, [which] is not an
appropriate home for the children . . . and further [Father] has failed to comply with the
goals, tasks and responsibilities of the permanency plan.”

       Noncompliance with the permanency plan is a statutory ground for termination of a
parent’s rights. Tenn. Code Ann. § 36-1-113(g)(2). For noncompliance to justify the
termination of parental rights, it must be “substantial” noncompliance. In re S.H., No.
M2007-01718-COA-R3-PT, 2008 WL 1901118, at *7 (Tenn. Ct. App. Apr. 30, 2008). To
prove grounds for termination pursuant to Tenn. Code Ann. § 36-1-113(g)(2), the
Department was required to demonstrate that: “(1) the requirements of the permanency plan
were reasonable and related to remedying the conditions that caused the child to be removed
from the parent’s custody in the first place, and (2) the parent’s noncompliance was
substantial in light of the degree of noncompliance and the importance of the particular
requirement that has not been met.” State Dept. of Children’s Serv. v. T.M.B.K., 197 S.W.3d
282, 293 (Tenn. Ct. App. 2006).

                                              -8-
        Father does not challenge the requirements of the permanency plan or deny the fact
that, due to his incarceration, he failed to comply with important requirements. He admitted
that several requirements of his permanency plan remained incomplete including providing
a suitable home, securing a legal means of income, and providing a transportation plan and
budget. Father contends he performed all the tasks on the plan that he could perform while
incarcerated, including a mental evaluation and alcohol and drug orientation. Although
Father did complete some requirements of the permanency plan, the fact remains, however,
that his continued incarceration prevented him from obtaining safe housing and a source of
income to provide for the children. Father presents the same argument for this ground of
termination; his failure to comply with the permanency plans was not due to his lack of desire
or effort but rather his incarceration for a conviction that was on direct appeal and, thus, the
juvenile court erred in finding this ground for termination. Father does not cite to any
authority in support of his argument.

       This court has held that a parent’s substantial noncompliance with a permanency plan
does not have to be willful to justify termination of parental rights on this ground. In re
Joseph L., M2011-02058-COA-R3-PT, 2012 WL 2389609, *9 (Tenn. Ct. App. June 25,
2012), perm to appeal denied, (Sept. 14, 2012). From the record as a whole, there is clear and
convincing evidence to support the juvenile court’s finding that Father failed to substantially
comply with the reasonable responsibilities contained in the plans. Accordingly, we affirm
the termination of Father’s parental rights pursuant to Tennessee Code Annotated § 36-1-
113(g)(2).

                           V. B EST INTERESTS OF THE C HILDREN

       The General Assembly has provided a list of factors for the court to consider when
conducting an analysis of the best interests of the children. See Tenn. Code Ann. § 36-1-
113(i)(1)-(9). The nine statutory factors, which are well known and need not be repeated
here, are not exclusive or exhaustive, and other factors may be considered by the court. In
re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Moreover, not every statutory factor
need apply; depending upon the circumstances of a particular child and a particular parent,
the consideration of one factor may dictate the outcome of the analysis. In re Audrey S., 182
S.W.3d at 878 (citing White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004)). The
children’s best interests are to be determined from the perspective of the children rather than
the parent. See State Dep’t of Children’s Servs. v. L.H., No. M2007-00170-COA-R3-PT,
2007 WL 2471500, at *7 (Tenn. Ct. App. Dec. 3, 2007) (citing White v. Moody, 171 S.W.3d
187, 194 (Tenn. Ct. App. 2004)).

       The juvenile court found there was no meaningful relationship between Father and
children; at the time of the hearing, he had not seen Kason in over 22 months, with the last

                                              -9-
contact being when Kason was around 14 months of age, and he has never met his daughter,
Kyley. The court further found that termination of Father’s rights would be in the children’s
best interests because the children are entitled to a safe, secure, and permanent home, further
stating: “[A] lengthy delay in the return of a child to the custody of his/her biological parents
is a strong indication that termination of the parent’s rights is in the child’s best interests.”
The juvenile court also noted that Father’s sentence to 26 years of incarceration was due to
his own criminal conduct and actions.

       Considering these and many other relevant factors from the children's perspective, the
evidence clearly and convincingly demonstrates that it is in the children's best interests that
the parental rights of Mother be terminated. Therefore, we also affirm this finding.

                                       I N C ONCLUSION

       The judgment of the juvenile court is affirmed, and this matter is remanded with costs
of appeal assessed against the Department of Children’s Services due to Father’s indigency
and lengthy incarceration.

                                                        ______________________________
                                                        FRANK G. CLEMENT, JR., JUDGE




                                              -10-
