                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                             Assigned on Briefs August 10, 2012

                                    IN RE: CHYNA L.M.D.

                     Appeal from the Juvenile Court for Knox County
                             No. 94713    Tim Irwin, Judge


                   No. E2012-00661-COA-R3-PT - Filed August 31, 2012




The State of Tennessee Department of Children’s Services (“DCS”) filed a petition seeking
to terminate the parental rights of Anthony P.D. (“Father”)1 to the minor child Chyna L.M.D.
(“the Child”). After a trial, the Trial Court entered its judgment finding and holding that
clear and convincing evidence of grounds existed to terminate Father’s parental rights
pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-102(1)(A)(iv), and that the
termination was in the Child’s best interest. Father appeals to this Court. We affirm.


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


D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which H ERSCHEL P. F RANKS,
P.J., and J OHN W. M CC LARTY, J., joined.

Gregory E. Bennett, Seymour, Tennessee, for the appellant, Anthony P.D.

Robert E. Cooper, Jr., Attorney General and Reporter; and Mary Byrd Ferrara, Assistant
Attorney General for the appellee, State of Tennessee Department of Children’s Services.




        1
         The Child’s biological mother surrendered her parental rights to the Child and is not involved in
this appeal.
                                          OPINION

                                         Background

              DCS sought to terminate Father’s parental rights to the Child upon the ground
of abandonment by exhibiting wanton disregard for the welfare of the Child. The case
proceeded to trial and Father, who was incarcerated at the time, took part in the proceedings
by telephone.

              Father admitted during his testimony that he was in prison serving a sentence
for aggravated assault as a result of his shooting a minor three times in April of 2007. Father
served one year in prison and then in September of 2008 was released on probation. While
on probation, Father began a relationship with the Child’s mother who became pregnant with
the Child.

              Father admitted that he violated his probation by failing to appear in court in
February of 2009 on a charge of driving without a license. Father also admitted that when
tested in March of 2009, he tested positive for cocaine and marijuana.

               After Father violated his probation, although not technically eligible due to the
violent nature of his assault crime, Father was approved to participate in the Community
Alternatives to Prison Program (“CAPP”). In order to participate in CAPP, Father had to
agree to certain conditions, which included living in a halfway house and getting substance
abuse and mental health treatment. Father testified at trial that he agreed that he would do
the things required by CAPP. The enhanced probation through CAPP would have allowed
Father to remain out of prison.

              Father appeared in Knox County Criminal Court in July of 2009, and his
behavior in court caused CAPP to withdraw the offer of enhanced probation. In July of
2009, Father’s probation was revoked, and he was sent to prison to serve the remainder of
the sentence on his assault charge. The Child was born approximately two months later.

               After trial, the Trial Court entered its Termination of Parental Rights and Final
Decree of Guardianship on April 3, 2012 terminating Father’s parental rights to the Child
after finding and holding, inter alia:

       1. On April 18, 2007, [Father] shot [T. M.], then a minor, three times. He was
       arrested a few days later. On December 10, 2007, he submitted to a plea of
       aggravated assault (reduced from a charge of attempted first degree murder)
       and received a sentence of eight years split confinement. He was to serve one

                                              -2-
year in the Knox County Detention Facility and the remaining seven years on
probation.

2. [Father] was released back into the community on September 20, 2008.
About a month later he began a relationship with [the Child’s mother]. He
recalls that her son, … was about two weeks old. He engaged in unprotected
sexual intercourse with her until he was arrested for violation of probation on
March 29, 2009. He had been arrested a month earlier for failure to appear on
a charge of driving without a license, he had failed to maintain employment as
required, and he had tested positive for marijuana and cocaine on March 10,
2009.

3. [Father] was referred for consideration by Enhanced Probation and the
Community Alternatives to Prison Program (CAPP). He reported that he had
used marijuana and cocaine until his arrest, and identified them as his drugs of
choice. He admitted that he needed “some serious help”. He was advised that
although he was not technically eligible for these programs due to the violent
nature of his offense, he would be accepted upon condition that he first
complete an inpatient substance abuse program and then reside in an approved
halfway house, and that he participate in mental health treatment. He agreed
to those conditions.

4. While [Father] was held at the Knox County Detention Facility waiting for
hearing on the warrant to violate probation he learned that [the Child’s mother]
was pregnant with his child.

5. On July 1, 2009, [Father] appeared in Knox County Criminal Court. His
behavior during that hearing resulted in both Enhanced Probation and CAPP
withdrawing their acceptance upon finding that his behavior did not reflect
amenability to supervision. The Court revoked his probation and [Father] was
immediately transferred to the Tennessee State Penitentiary to serve his full
sentence (with jail credit being given for 283 days). He has been in the
custody of the Tennessee Department of Correction continuously since then.

6. [Father] may not have known that his girlfriend was pregnant with his child
prior to his arrest for violation of probation in March 2009. He certainly knew
that this was possible. He was well aware of the natural consequences of
unprotected sex and the likely outcome. On July 1, 2009, the day of his
hearing in Criminal Court, he certainly knew that [the Child’s mother] was
carrying his child. He remembers talking to the infant and patting the child

                                      -3-
while “in the mother’s stomach.” He knew that he was facing a sentence of
more than seven years imprisonment (taking into account his previous jail
credits) and that any opportunity he might have to participate in raising his
child depended upon remaining in the community. He nevertheless behaved
in such a manner that he lost his acceptance into Enhanced Probation, he lost
his acceptance into CAPP, and he was sent directly [to] prison.

7. … On July 1, 2009, [Father] willfully acted in such a manner that he was
sent to prison, where he remains. He engaged in those acts when he admits he
knew that the child’s mother was pregnant with his child. [The Child] was
born only two months later.

8. Upon these facts, the Court finds that prior to incarceration, [Father]
engaged in conduct which exhibits a wanton disregard for the welfare of the
child.

                                      ***

1. Due to his own conduct, [Father] has not been able to maintain regular
visitation or other contact with the child and no meaningful relationship has
otherwise been established between [Father] and the child. A change of
caretakers and physical environment from the prospective adoptive home
where she is being raised with her half-brother is likely to have a detrimental
effect on the child’s emotional, psychological and medical condition. [Father]
is currently imprisoned for a violent act and for the use of illegal drugs. Due
to his imprisonment, [Father] has never contributed anything toward the
support of this child.

2. The child’s mother has surrendered her parental rights.

3. The Department of Children’s Services has made reasonable efforts toward
achieving permanency for this child.

4. The child is entitled to a safe, secure and loving home. She is thriving in
a prospective adoptive home where she is being raised with her older half-
brother. She has been in this home since she entered foster care more than a
year ago. She is doing so well that she has been discharged from therapy.

5. It is, therefore, in the best interest of [the Child] and the public that all of
[Father’s] parental rights to this child be terminated and the complete custody,

                                        -4-
       control, and full guardianship of the child be awarded to the State of
       Tennessee, Department of Children’s Services, with the right to place her for
       adoption and to consent to such adoption in loco parentis.

Father appeals to this Court.

                                          Discussion

              Although not stated exactly as such, Father raises two issues on appeal: 1)
whether the Trial Court erred in finding that clear and convincing evidence existed of
grounds to terminate his parental rights to the Child pursuant to Tenn. Code Ann. § 36-1-
113(g)(1) and § 36-1-102(1)(A)(iv); and 2) whether the Trial Court erred in finding that the
termination of Father’s parental rights to the Child was in the Child’s best interests.

              Our Supreme Court reiterated the standard of review for cases involving
termination of parental rights stating:

              This Court must review findings of fact made by the trial court de novo
       upon the record “accompanied by a presumption of the correctness of the
       finding, unless the preponderance of the evidence is otherwise.” Tenn. R.
       App. P. 13(d). To terminate parental rights, a trial court must determine by
       clear and convincing evidence not only the existence of at least one of the
       statutory grounds for termination but also that termination is in the child's best
       interest. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Tenn. Code
       Ann. § 36-1-113(c)). Upon reviewing a termination of parental rights, this
       Court's duty, then, is to determine whether the trial court's findings, made
       under a clear and convincing standard, are supported by a preponderance of the
       evidence.

In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006).

              In Department of Children’s Services v. D.G.S.L., this Court discussed the
relevant burden of proof in cases involving termination of parental rights stating:

       It is well established 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 parental
       rights may be terminated if there is clear and convincing evidence justifying



                                              -5-
       such termination under the applicable statute.” Id. (citing Santosky v. Kramer,
       455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982)).

               Termination of parental or guardianship rights must be based upon a
       finding by the court that: (1) the grounds for termination of parental or
       guardianship rights have been established by clear and convincing evidence;
       and (2) termination of the parent’s or guardian’s rights is in the best interests
       of the child. Tenn. Code Ann. § 36-1-113(c). Before a parent’s rights can be
       terminated, it must be shown that the parent is unfit or substantial harm to the
       child will result if parental rights are not terminated. In re Swanson, 2 S.W.3d
       180, 188 (Tenn. 1999); In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn. Ct.
       App. 1998). Similarly, before the court may inquire as to whether termination
       of parental rights is in the best interests of the child, the court must first
       determine that the grounds for termination have been established by clear and
       convincing evidence. Tenn. Code Ann. § 36-1-113(c).

Dep’t of Children’s Servs. v. D.G.S.L., No. E2001-00742-COA-R3-JV, 2001 Tenn. App.
LEXIS 941, at **16-17 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed. Clear
and convincing evidence supporting any single ground will justify a termination order. E.g.,
In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

              We first consider whether the Trial Court erred in finding that clear and
convincing evidence existed of grounds to terminate Father’s parental rights to the Child
pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-102(1)(A)(iv). In pertinent part,
Tenn. Code Ann. § 36-1-113(g) provides:

       (g) Initiation of termination of parental or guardianship rights may be based
       upon any of the grounds listed in this subsection (g). The following grounds
       are cumulative and non-exclusive, so that listing conditions, acts or omissions
       in one ground does not prevent them from coming within another ground:

       (1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
       occurred;

Tenn. Code Ann. § 36-1-113(g)(1) (2010).

              Tennessee Code Annotated § 36-1-102(1)(A)(iv) provides:




                                              -6-
       (1)(A) 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, “abandonment” means 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, 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. § 36-1-102(1)(A)(iv) (2010).

               The Trial Court found by clear and convincing evidence that Father had
exhibited a wanton disregard for the welfare of the Child when he behaved in a manner
during a court hearing that caused him to lose his acceptance into CAPP and resulted in his
being sent back to prison. The evidence in the record on appeal shows that Father was out
on probation prior to the birth of the Child. The evidence also shows that Father violated his
probation, but was offered an alternative to being sent back to prison, which would have
allowed Father to remain in the community where he could participate in the Child’s life.
The record further reveals that Father’s own actions taken while Father knew that the Child’s
mother was pregnant with his baby insured that the offer of enhanced probation would be
withdrawn and that Father would be sent back to prison. Such behavior exhibits a wanton
disregard for the welfare of the Child. The evidence does not preponderate against the Trial
Court’s finding by clear and convincing evidence that grounds existed to terminate Father’s
parental rights to the Child pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and § 36-1-
102(1)(A)(iv).

               Next, we consider whether the Trial Court erred in finding that the termination
of Father’s parental rights to the Child was in the Child’s best interests. With regard to best
interest, the Trial Court specifically found by clear and convincing evidence that:

       Due to his own conduct, [Father] has not been able to maintain regular
       visitation or other contact with the child and no meaningful relationship has
       otherwise been established between [Father] and the child. A change of

                                              -7-
       caretakers and physical environment from the prospective adoptive home
       where she is being raised with her half-brother is likely to have a detrimental
       effect on the child’s emotional, psychological and medical condition. [Father]
       is currently imprisoned for a violent act and for the use of illegal drugs. Due
       to his imprisonment, [Father] has never contributed anything toward the
       support of this child.

                                            ***

       The child is entitled to a safe, secure and loving home. She is thriving in a
       prospective adoptive home where she is being raised with her older half-
       brother. She has been in this home since she entered foster care more than a
       year ago. She is doing so well that she has been discharged from therapy.

The evidence in the record on appeal does not preponderate against these findings made by
the Trial Court by clear and convincing evidence.

             Given all of the above, we find no error in the Trial Court’s termination of
Father’s parental rights to the Child, and we affirm the Trial Court’s April 3, 2012
Termination of Parental Rights and Final Decree of Guardianship.

                                        Conclusion

               The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
the appellant, Anthony P.D.




                                                   _________________________________
                                                   D. MICHAEL SWINEY, JUDGE




                                             -8-
