                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                                   Assigned on Briefs July 26, 2004

                                         H.M.R., ET AL. v. J.K.F.

                      Appeal from the Chancery Court for Washington County
                          No. 34457 G. Richard Johnson, Chancellor



                  No. E2004-00497-COA-R3-PT - FILED SEPTEMBER 1, 2004


The trial court terminated the parental rights of J.K.F. (“Father”) with respect to his minor child,
S.B.R. (DOB: September 16, 1996), and granted the petition of the child’s maternal grandparents,
H.M.R. and S.M.R. (“the grandparents”) to pursue adoption of the child. Father appeals, arguing,
inter alia, that the evidence preponderates against the trial court’s dual findings by clear and
convincing evidence that grounds for terminating Father’s parental rights exist and that termination
is in the best interest of the child. We affirm.1

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

CHARLES D. SUSANO , JR., J., delivered the opinion of the court, in which D. MICHAEL SWINEY and
SHARON G. LEE, JJ., joined.

J.K.F., Whiteville, Tennessee, Pro Se.

H.M.R. and S.M.R., Fall Branch, Tennessee, Pro Se.


                                                     OPINION




         1
           Father filed a motion in this Court seeking to limit the grandparents to their original brief. This motion is
granted and the Court will not consider any further filings by the grandparents. Father also filed a motion asking that
we consider photographs filed with the motion. This motion is denied as our consideration is limited to the record
certified to us by the trial court.
                                                           I.

        On September 16, 1996, the child was born out of wedlock to Father and T.M.R.
(“Mother”)2. From the time of her birth, the child resided in the home of the grandparents and was
raised by them.

        On November 16, 2001, the grandparents filed a petition to adopt the child and to terminate
Father’s parental rights, based upon the ground of abandonment. The grandparents later filed an
amended petition that included, as an additional ground for termination, that Father is confined in
a correctional facility and is under a sentence of ten or more years. Father answered both the petition
and the amended petition, denying the existence of grounds for termination.

         The case was heard on September 16, 2003. On January 26, 2004, the trial court entered its
order, finding, by clear and convincing evidence, that grounds for terminating Father’s parental rights
existed and that termination was in the best interest of the child. Specifically, the court made the
following findings:

                  This Court has determined, by clear and convincing evidence, that:

                  [Father] has willfully abandoned said child within the meaning of
                  [Tenn. Code Ann.] § 36-1-102, in that [Father] was incarcerated at
                  the time of the initiation of this action to declare the child an
                  abandoned child; [Father] has been incarcerated during all, or part of,
                  the four (4) months preceding the initiation of this action; [Father] has
                  willfully failed to visit and has willfully failed to support or make
                  reasonable payments toward the support of the child for four (4)
                  consecutive months immediately preceding [Father’s] incarceration;
                  and, in spite of [Father’s] ability to work and support his child,
                  [Father] willfully and intentionally failed to do so.

                  [Father] has willfully abandoned said child within the meaning of
                  [Tenn. Code Ann.] § 36-1-102, in that [Father] was incarcerated at
                  the time of the initiation of this action to declare the child an
                  abandoned child; [Father] has been incarcerated during all, or part of,
                  the four (4) months preceding the institution of this action, and
                  [Father] has engaged in conduct prior to his incarceration which
                  exhibits a wanton disregard for the welfare of the child;

                  [Father] has been confined in a correctional or detention facility by
                  order of the Court, as a result of a criminal act, under a sentence of


         2
         Mother voluntarily relinquished her parental rights to the child and agreed to the adoption of the child by the
grandparents. Mother’s parental rights were terminated by the trial court’s order of January 26, 2004.

                                                          -2-
               ten (10) or more years, and the child was under eight (8) years of age
               at the time the sentence was entered by the Court.

               Termination of [Father’s] parental rights to the child is in the best
               interest of the child.

(Numbering and lettering of paragraphs in original omitted). In addition, the trial court granted the
grandparents’ petition for adoption and established “the relationship of parent and child” between
the grandparents and the child. From this order, Father appeals.

                                                  II.

        Our review of this non-jury case is de novo; however, the record comes to us accompanied
by a presumption of correctness that we must honor unless the evidence preponderates against the
trial court’s findings. Tenn. R. App. P. 13(d). No presumption of correctness attaches to the lower
court’s conclusions of law. Jahn v. Jahn, 932 S.W.2d 939, 941 (Tenn. Ct. App. 1996).

                                                 III.

        It is well-settled that “parents have a fundamental right to the care, custody, and control of
their children.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Stanley v. Illinois,
405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)). However, this right is not absolute and may
be terminated if there is clear and convincing evidence justifying termination under the pertinent
statute. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982). Clear and
convincing evidence is evidence which “eliminates any serious or substantial doubt concerning the
correctness of the conclusions to be drawn from the evidence.” O’Daniel v. Messier, 905 S.W.2d
182, 188 (Tenn. Ct. App. 1995).

       The issues raised in the pleadings, and the trial court’s findings, cause us to focus on the
following statutory provisions:

                             Tenn. Code Ann. § 36-1-113 (Supp. 2003)

               (a) The chancery and circuit courts shall have concurrent jurisdiction
               with the juvenile court to terminate parental or guardianship rights to
               a child in a separate proceeding, . . . by utilizing any grounds for
               termination of parental or guardianship rights permitted in this part
               or in title 37, chapter 1, part 1 and title 37, chapter 2, part 4.

               (b) The prospective adoptive parent or parents of the child, including
               extended family members caring for related children, . . . shall have
               standing to file a petition pursuant to this part or pursuant to title 37
               to terminate parental or guardianship rights of a person alleged to be


                                                 -3-
a parent or guardian of such child. The prospective adoptive parents,
including extended family members caring for related children, shall
have standing to request termination of parental or guardianship
rights in the adoption petition filed by them pursuant to this part.

(c) 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.

                                 ***

(g) Initiation of termination of parental or guardianship rights may be
based upon any of the following grounds:

(1) Abandonment by the parent or guardian, as defined in [Tenn.
Code Ann.] § 36-1-102, has occurred;

                                 ***

(6) 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 by the court.

                                 ***

             Tenn. Code Ann. § 36-1-102 (Supp. 2003)

As used in this part, unless the context otherwise requires:

(1)(A) “Abandonment” means, for purposes of terminating the
parental or guardian rights of parent(s) or guardian(s) of a child to
that child in order to make that child available for adoption, 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,


                                  -4-
                 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 which exhibits a wanton disregard for the welfare of
                 the child; . . . .
                                                  ***

                 (D) For purposes of this subdivision (1), “willfully failed to support”
                 or “willfully failed to make reasonable payments toward such child’s
                 support” means the willful failure, for a period of four (4) consecutive
                 months, to provide monetary support or the willful failure to provide
                 more that token payments toward the support of the child;

                 (E) For purposes of this subdivision (1), “willfully failed to visit”
                 means the willful failure, for a period of four (4) consecutive months,
                 to visit or engage in more than token visitation; . . . .

                                                       IV.

        Father raises several issues on appeal. Father begins by taking the position that there was an
earlier proceeding in juvenile court in which Mother sought to terminate his parental rights. He
argues that this petition, in some unspecified way, precludes the maternal grandparents from
pursuing the petition to terminate in the trial court. There are three answers to this. First, there is
nothing in the record certified to us by the trial court that establishes a prior petition to terminate
being filed in the juvenile court by Mother.3 Second, even if such a petition had been filed, we have
no official document addressing its disposition. Finally, even if a petition had been filed at an earlier
time, there is no showing as to why such a filing would preclude a new petition by different parties
who are authorized to seek termination under Tenn. Code Ann. § 36-1-113(b).

        Father next contends that “no actual evidence was presented to clearly and convincingly
establish legal grounds for abandonment.” We disagree.

       In order to show that a parent has abandoned his or her child, pursuant to Tenn. Code Ann.
§ 36-1-102(1)(A)(iv), there must be proof that the parent was incarcerated at the time the petition
to terminate was filed, or that the parent was incarcerated during all or part of the four months


        3
          In support of his argument, Father relies upon documents attached to his brief as exhibits. However,
“[d]ocuments attached to a brief are not part of the official record on appeal.” Hunt v. Shaw, 946 S.W .2d 306, 309
(Tenn. Ct. App. 1996).

                                                       -5-
immediately preceding the filing of the petition, and that the parent (1) “willfully failed to visit” the
child; or (2) “willfully failed to support” or “willfully failed to make reasonable payments toward
the support of the child” for four consecutive months just prior to the parent’s incarceration; or (3)
“engaged in conduct prior to incarceration which exhibits a wanton disregard for the welfare of the
child.” The trial court, in its memorandum opinion, found clear and convincing evidence of all three
grounds:

                This Court finds that prior to [Father’s] incarceration and after the
                birth of the child, he had many months, and many dates, and many
                times where he could have supported the child. But, in fact, [Father]
                has never paid any support for this child, including, from what I
                understand [of] the testimony, nothing toward the birth expenses,
                nothing towards the support – nothing, nothing. There were, as I said,
                many months after the birth of the child when [Father] had the
                opportunity to support the child, and he didn’t, and he had the
                opportunity to visit the child, and he didn’t. And he did not take
                advantage of any issue as to whether or not he could visit the child.
                He just mentally decided for his reasons that he gave today that he
                would not visit the child, and he didn’t press the issue. He has never
                paid any support for this child when he has not been incarcerated, and
                when he has been employed. He doesn’t pay any support today,
                although he’s only making 17 cents an hour. He doesn’t share any of
                those funds with this child. The Court does not accept his excuse that
                when he was out of jail after the child’s birth, and even after the
                child’s paternity was settled – I do not buy into this he did not have
                the ability to pay any child support. He had the ability to work, he
                had the ability to steal cars. He had the ability to buy drugs, he had
                the ability to spend money on other things. So I do not buy into his
                no ability to pay, or to – the fact of the matter is that this Court finds
                that [Father] has intentionally, purposefully, willfully failed to
                support his child, and failed to visit his child, and failed to take any
                means at his disposal to support or visit the child. This Court finds
                that for the purposes of the statute, prior to his incarceration, after the
                birth of the child, not only did he fail to pay, and not only did he fail
                to visit, as I’ve stated, but he acted in wanton disregard for this
                child’s best welfare, showed no interest in this child. He was
                interested in collecting misdemeanor and felony charges against him.
                He was interested in devoting most of his adult life to crime and to
                serving time for his crime. The evidence is clear and convincing.
                Again, not only did he willfully, intentionally, purposefully fail to
                visit and support, the evidence is clear and convincing that he acted
                in wanton disregard for this child’s best interest before his present
                incarceration.


                                                   -6-
Based upon this overwhelming evidence of abandonment, we find that the evidence does not
preponderate against the trial court’s finding that Father abandoned the child, which justified the
termination of his parental rights.

       Father next asserts that the trial court erred in finding, as an additional ground for termination
of Father’s parental rights, that Father is serving a sentence of 10 or more years. Again, we disagree.

         Tenn. Code Ann. § 36-1-113(g)(6) states that parental rights can be terminated upon a finding
that the parent has been confined in a correctional facility as the result of a criminal act under a
sentence of ten or more years, and that the child in question is under the age of 8 at the time the
parent was sentenced. On February 15, 2002, Father was convicted of a sixth DUI offense, a
violation of an habitual traffic offender (“HTO”) order, and criminal impersonation. Father received
a sentence of six years for the DUI, four years for the violation of the HTO order, and six months
for the criminal impersonation charge; the four-year sentence was to run consecutive to the six-year
sentence. As the child was born in September, 1996, she was under the age of eight when Father was
sentenced in February, 2002.

        In addition, Father’s probation on previous charges was revoked on February 29, 2000, and
he was order to serve eight years in a correctional facility, with 3 years credit for time served. The
February, 2002, sentencing documents specifically state that the eight-year sentence runs consecutive
to the four-year HTO violation sentence.

       It is clear that Father was under a sentence of more than 10 years and that the child was under
the age of eight at the time of the sentencing. Accordingly, we find that the evidence does not
preponderate against the trial court’s finding of this ground for termination by clear and convincing
evidence.

        Finally, Father argues that the evidence preponderates against the trial court’s findings that
termination was in the best interest of the child and that the grandparents were fit persons to adopt
the child. Our review of the record reveals an abundance of evidence to support both of these
findings, which the trial court found – in both instances – by clear and convincing evidence.
Accordingly, Father’s final issue is without merit.

                                                   V.

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



                                                        _______________________________
                                                        CHARLES D. SUSANO, JR., JUDGE


                                                  -7-
