                                                                                         04/26/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                          Assigned on Briefs January 7, 2019

                                   IN RE O.M. ET AL.

                Appeal from the Juvenile Court for Claiborne County
                 No. 2016-JV-1902         Robert M. Estep, Judge
                     ___________________________________

                            No. E2018-01463-COA-R3-PT
                       ___________________________________

Department of Children’s Services filed a petition to terminate the parental rights of
father, J.M., with respect to his children, O.M. and K.M. The court held clear and
convincing evidence exists to terminate father’s parent rights on the ground of
abandonment by an incarcerated parent, pursuant to Tenn. Code Ann. § 36-1-113(g)(1),
and for failure to manifest an ability to parent, pursuant to Tenn. Code Ann. § 36-1-
113(g)(14). By the same quantum of proof, the court held that termination is in the
children’s best interest. Father appeals. We affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and ANDY D. BENNETT, J., joined.

Jordan Long, Knoxville, Tennessee, for the appellant father of O.M. and K.M., J.M.

No appearance by or on behalf of mother, S.M.

Herbert H. Slatery III, Attorney General and Reporter, and Jordan K. Crews, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.

                                       OPINION

                                            I.

       Father’s extensive criminal conduct and drug abuse has led to frequent
incarcerations. The exact dates of all of his incarcerations remain unclear. However, it is


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undisputed that father is currently serving a twenty-four year prison sentence, in
Kentucky. His earliest eligibility for parole is February 2022.

       On November 7, 2016, DCS investigated a report of drug-exposed children and
sexual abuse. A DCS caseworker located the children at their paternal grandmother’s
house. The children stated that they had “lived with their grandmother for years because
their mother wouldn’t take care of them.”

      At the time of removal, DCS reported that the children were:

             extremely filthy. Their fingernails were caked with dirt. It
             was cold obviously. It was the wintertime. One of them was
             in sandals. Her toenails were extremely dirty. They had a
             smell of urine that came from them. Their hair was pretty
             nasty as far as it didn’t look like it had been washed in a
             while.

While the children were dirty, the DCS caseworker noted that they did not have head lice
or any other known ailments. The children were not malnourished. DCS determined that,
due to her criminal history, the paternal grandmother was ineligible to have custody of
the children. DCS sought, but was unable to find, a suitable relative to care for the
children. The children were instead placed into state custody.

      On November 9, 2016, DCS filed a petition alleging that the children were
dependent and neglected. It was alleged that the children were drug exposed, lived in
deplorable conditions, and that father was on the run from law enforcement and his
whereabouts were unknown. On December 7, 2016, the children were adjudicated
dependent and neglected.

       DCS was eventually able to locate father; he was in jail in Bell County, Kentucky.
During this custodial episode, he was incarcerated from around December 2016 to
February 2017. During that period, a DCS caseworker mailed father a copy of the
permanency plan and a copy of the criteria and procedures for the termination of parental
rights. The caseworker spoke with father on the phone and reviewed the provided
materials with him. On February 9, 2017, father signed the permanency plan and criteria
and mailed them to DCS.

        After his release, father was next incarcerated in Claiborne County, Tennessee. A
DCS caseworker visited father and again reviewed the permanency plan and termination
criteria with him. Father was told to contact the caseworker when he was released. He did
not. Father never visited the children, and never contacted DCS to arrange a visit. Father
also failed to provide financial support for the children.


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       The children have resided in their current foster home since July 3, 2017. The
children are purportedly happy and doing well in their current placement. They
participate in extracurricular activities and have bonded with their foster family. The
children have expressed their desire to be adopted by the foster parents, and the foster
parents wish to adopt the children.

       On March 27, 2018, DCS filed a petition to terminate father’s parental rights. On
July 16, 2018, a hearing on the petition was held. The trial court heard in-person
testimony from two DCS caseworkers and the foster parent, and telephonic testimony
from father.

      The court held that DCS had proven, by clear and convincing evidence,
abandonment by an incarcerated parent for wanton disregard, pursuant to Tenn. Code
Ann. § 36-1-113(g)(1). The court held that

             [Tenn. Code Ann. §] 36-1-102(1)(A)(iv) includes within that
             long sentence, comma, then ‘or the parent or guardian has
             engaged in conduct prior to incarceration that exhibits a
             wanton disregard for the welfare of the child.’ Clearly,
             [father’s] conduct of criminal activity that has led him to
             many incarcerations, including a current sentence of 24 years,
             is wanton disregard for the [children].

The court then held, by clear and convincing evidence, that father has failed to manifest
an ability to parent the children, “because he has engaged in so much criminal activity
that he cannot even argue that he has been out for four months to be able to parent his
children.” In reference to Tenn. Code Ann. § 36-1-113(g)(14), which states that
termination of parental rights may be based upon a parent’s failure:

             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[,]

the court stated that “[i]f ever there was a sentence that was written by the Tennessee
Legislature that applied to anybody, it applies to [father].”

       By clear and convincing evidence, and pursuant to Tenn. Code Ann. § 36-1-113(i),
the court also held that it is in the best interest of the children to terminate father’s
parental rights. Father appeals.


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                                            II.

       Father raises the following issues on appeal:

              Whether the trial court erred in holding that grounds exist to
              terminate father’s parental rights.

              Whether the trial court properly determined that termination
              of father’s parental rights is in the children’s best interest.

                                            III.

       A parent has a fundamental right, based on both the federal and state constitutions,
to the care, custody, and control of his or her child. Stanley v. Ill., 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud,
921 S.W.2d 170, 174-75 (Tenn. 1996). While this right is fundamental, it is not absolute.
The State may interfere with a parent’s rights in certain circumstances. In re Angela E.,
303 S.W.3d at 250. Our legislature has listed the grounds upon which termination
proceedings may be brought. Tenn. Code Ann. § 36-1-113(g)(2018). Termination
proceedings are statutory, In re Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127
S.W.3d 737, 739 (Tenn. 2004), and a parent’s rights may be terminated only where a
statutory basis exists. Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In the Matter
of M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).

        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 child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “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 586, 596 (Tenn. 2010) (citations omitted).
Unlike the preponderance of the evidence standard, “[e]vidence satisfying the clear and
convincing standard establishes that the truth of the facts asserted is highly probable.” In
re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).

        Once a ground for termination is established by clear and convincing evidence, the
trial court conducts a best interest analysis. In re Angela E., 303 S.W.3d at 251 (citing In
re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)). “The best interest[ ] analysis is
separate from and subsequent to the determination that there is clear and convincing
evidence of grounds for termination.” Id. at 254. The existence of a ground for
termination “does not inexorably lead to the conclusion that termination of a parent’s
rights is in the best interest of the child.” In re C.B.W., No. M2005-01817-COA-R3-PT,
2006 WL 1749534, at *6 (Tenn. Ct. App., filed June 26, 2006).

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       We are required to review all of the trial court’s findings with respect to grounds
and best interest. In re Carrington, 483 S.W.3d 507, 525-26 (Tenn. 2016) (“[W]e hold
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 interest[ ], regardless of whether the parent challenges
these findings on appeal.”)

      The Supreme Court has stated our standard of 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). 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.

Id. at 523-24 (internal citations omitted). “When a trial court has seen and heard
witnesses, especially where issues of credibility and weight of oral testimony are
involved, considerable deference must be accorded to . . . the trial court’s factual
findings.” In re Adoption of S.T.D., No. E2007-01240-COA-R3-PT, 2007 WL 3171034,
at *4 (Tenn. Ct. App., filed Oct. 30, 2007) (citing Seals v. England/Corsair Upholstery
Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999)).

                                           IV.

       Tenn. Code Ann. § 36-1-113(g)(1) provides that termination of parental rights
may be based upon abandonment by the parent, as defined in Tenn. Code Ann. § 36-1-
102. In relevant excerpt, section 36-1-102 provides that abandonment exists when “the
parent or guardian has engaged in conduct prior to incarceration that exhibits a wanton
disregard for the welfare of the child….”

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       Father argues that before “DCS was involved in the case, the children lived with
their grandparents, where [father] would visit them every day, provide for his children
financially, and was appropriate for the children.” Father testified that, when he was not
incarcerated, he visited the children at his parents’ house regularly. Father admitted that
his current lengthy incarceration renders him unable to visit the children.

       At trial, when father was asked how he obtained money to provide for the
children, as he alleges he did, he responded that:

              I’m not going to sugarcoat nothing. If I couldn’t make money
              the honest way, I went to the only thing I knew and that was
              selling drugs.

He alleged that any money he made legitimately went towards the children; however,
there is no evidence to suggest that father has earned a legitimate income since 2008.

       It is clear from the record that father’s history of incessant criminal behavior and
drug abuse evinces a pattern of conduct that renders him unfit to parent. Father has been
in and out of jail since 2008. His criminal activity and corresponding criminal
convictions, include: a guilty plea for felony trafficking in a controlled substance in or
near a school, in February 2009; a guilty plea for felony possession of a controlled
substance and misdemeanor possession of a controlled substance, in February 2012; and
a guilty plea for felony facilitation to commit burglary, in March 2014.

        In addition, in August 2017, after the children entered foster care, father pled
guilty to driving under the influence, felony assault, resisting arrest, and felony
fleeing/evading police in the second degree; that same day, father also pled guilty to
trafficking in a controlled substance in the first degree, convicted felon in possession of a
handgun, giving an officer a false name or address, persistent felony offender in the
second degree, possession of marijuana, and buying/possessing drug paraphernalia. In
February 2018, one month prior to the termination petition, father pled guilty to
trafficking in a controlled substance in the first degree and promoting contraband in the
first degree, and buying/possessing drug paraphernalia.

        Father’s persistent criminal conduct and drug abuse evinces a wanton disregard for
the welfare of the children. We hold, as a matter of law, that the evidence found by the
trial court amounts to clear and convincing evidence supporting termination of father’s
parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(1).




                                             -6-
                                             V.

       Tenn. Code Ann. § 36-1-113(g)(14) provides for termination of parental rights
when: (1) the parent fails to manifest “an ability or willingness to personally assume legal
and physical custody or financial responsibility of the child” and (2) “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.” This Court has held that, “placing a child
with a parent who ha[s] knowingly engaged ‘in repeated criminal conduct that
necessitated [the parent’s] re-incarceration’ would place the child at risk of physical or
psychological harm.” In re Amynn K. 2018 WL 3058280, at *15 (citations omitted).

       As outlined in this opinion, father has failed to demonstrate any ability or
willingness to personally assume legal and physical custody or financial responsibility of
the children. It is clear that placing the children in father’s legal custody would pose a
risk of substantial harm to the children. Father’s history is replete with drugs and crime.
As a result, he is currently serving a twenty-four year sentence.

       We hold, as a matter of law, that the evidence found by the trial court amounts to
clear and convincing evidence supporting termination of father’s parental rights, pursuant
to Tenn. Code Ann. § 36-1-113(g)(14).

                                             VI.

       We now focus on whether termination of father’s parental rights is in the
children’s best interest. When considering the issue of “best interest,” we are guided by
the statutory factors set forth in Tenn. Code. Ann. § 36-1-113(i), which provides as
follows:

              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 interests 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;


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             (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,
             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). “The above list is not exhaustive[,] and there is no
requirement that all of the factors must be present before a trial court can determine that
termination of parental rights is in a child’s best interest.” State Dep’t of Children’s
Servs. v. B.J.N., 242 S.W.3d 491, 502 (Tenn. Ct. App. 2007) (citing State Dep’t of
Children’s Servs. v. P.M.T., No. E2006- 00057-COA-R3-PT, 2006 WL 2644373, at *9
(Tenn. Ct. App., filed Sept. 15, 2006)). In addition, “[t]he child’s best interest must be
viewed from the child’s, rather than the parent’s, perspective.” In re Marr, 194 S.W.3d
490, 499 (Tenn. Ct. App. 2005) (citing White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct.
App. 2004)).

       None of the above enumerated factors were held by the trial court to favor father.
Father has made no adjustments to his lifestyle. As recently as one month before DCS

                                            -8-
filed its petition to terminate father’s parental rights, father pled guilty to several criminal
offenses. There are no indicia of a meaningful relationship between the children and
father.

      In addition, it is clear that removing the children from their current caretakers and
physical environment would have a profoundly detrimental effect on their wellbeing.
Regarding their current placement, the trial court stated that:

              [t]he [c]ourt is very impressed with the foster mother that has
              taken this stand and testified. She has done a wonderful job
              with these children. They are attached to her. They are
              bonded. She's taken care of their needs. She has provided a
              drug-free home, a safe home, and she's to be applauded. And,
              the [c]ourt appreciates the fact, that [father] even mentioned
              that and thanked her and her husband for taking care of the
              children.

       Accordingly, we hold, as a matter of law, that the evidence found by the trial court
to be credible amounts to clear and convincing evidence that termination of father’s
parental rights is in the children’s best interest.

                                             VII.

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the
appellant, J.M. Case remanded for enforcement of the trial court’s judgment and
collection of costs assessed below.



                                                      _______________________________
                                                      CHARLES D. SUSANO, JR., JUDGE




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