                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                             Assigned on Briefs March 13, 2014

                                      IN RE KORY W. A.1

                   Appeal from the Juvenile Court for Sullivan County
                        No. J38653 Hon. Mark Toohey, Judge




                   No. E2013-02282-COA-R3-PT - Filed April 24, 2014


This is a termination of parental rights case in which the Tennessee Department of Children’s
Services filed a petition to terminate the parental rights of Father to the Child. Following a
bench trial, the trial court found that clear and convincing evidence existed to support the
termination of Father’s parental rights based upon his incarceration. The court likewise
found that termination of Father’s parental rights was in the Child’s best interest. Father
appeals. We affirm the decision of the trial court.

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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,
J R., C.J., and T HOMAS R. F RIERSON, II, J., joined.

Nicholas A. Schaefer, Kingsport, Tennessee, for the appellant, Percy H.

Robert E. Cooper, Jr., Attorney General and Reporter, and Jordan Scott, Assistant Attorney
General, General Civil Division, Nashville, Tennessee, for the appellee, State of Tennessee,
Department of Children’s Services.

Claire A. Addlestone, Kingsport, Tennessee, guardian ad litem for the minor, Kory W. A.




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.
                                                  OPINION

                                            I. BACKGROUND


        Kory W. A. (“the Child”) was born to Sharifah A. (“Mother”) in July 2007. Mother
failed to identify the Child’s father on the birth certificate but later attested that Percy H.
(“Father”) was the Child’s father. Percy H. never attempted to legitimate the Child as his
own. The Tennessee Department of Children’s Services (“DCS”) removed the Child from
Mother in December 2010. However, Father was not notified of any legal proceedings
because DCS could not locate Father with the information provided by Mother. The Child
was subsequently adjudicated as dependent and neglected.

        On August 14, 2012, DCS filed a petition to terminate Mother and Father’s parental
          2
rights. Relative to Father, DCS alleged that he had abandoned the Child by failing to
provide support and by failing to legitimate the Child. A few months later, DCS learned that
Father was incarcerated in Georgia. Father had been convicted of kidnaping with bodily
injury, family violence aggravated battery, and family violence aggravated assault and had
received a sentence of life imprisonment for the kidnaping conviction on May 31, 2011.
DCS allowed Father to participate in at least one permanency hearing until DCS amended
the termination petition, removing the initial grounds and alleging that termination of
Father’s parental rights was appropriate based upon his incarceration pursuant to Tennessee
Code Annotated section 36-1-113(g)(6).

        A hearing was held on the termination petition at which Father participated via
telephone conference. Priscilla Tiffany, the Child’s DCS case manager, testified that Mother
failed to list the Child’s father on the Child’s birth certificate and that she could not find a
listing concerning the Child on the putative father registry. She related that Mother
eventually identified Father and that Father admitted paternity when he was finally located.
She recalled that Father had received a sentence of life imprisonment on May 31, 2011, when
the Child was less than eight years old. She acknowledged that Father had appealed his
convictions.

        Relative to the Child, Ms. Tiffany testified that he had been placed in a foster home
that was willing to adopt him. She claimed that the Child was “doing really well” after his
foster parents addressed his educational and medical needs. She asserted that the Child did
not have a relationship with Father and had not visited with Father in approximately three
years. She conceded that Father was not located until after the Child had been in DCS


2
    Mother surrendered her parental rights to the Child and is not a party to this appeal.
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custody for approximately two years. She explained that DCS was unaware that Father was
incarcerated and that she investigated the locations that Mother provided. She related that
Father had not maintained contact with the Child prior to or since his incarceration and that
Father had not provided any support for the Child. She acknowledged a report in which
Mother alleged that she received weekly support from Father but insisted that Mother
asserted that she had never received support from Father. She claimed that Father had not
provided any support since his incarceration.

        Father testified that he first learned of his paternity of the Child in 2008. He related
that he visited with the Child from 2008 until 2010, when he moved to Georgia to care for
his father. He maintained contact with Mother after he moved and even offered to parent the
Child on at least one occasion. He recalled that Mother refused his offer. He conceded that
he never filed a petition to establish his paternity. He explained that he did not know how
to file such a petition and that he did not have any money. He acknowledged that he never
sought any information concerning the process of legitimatizing the Child.

       Following the presentation of the above evidence, the trial court held that termination
of Father’s parental rights was supported by the statutory ground of incarceration pursuant
to Tennessee Code Annotated section 36-1-113(g)(6). The court likewise found that
termination of Father’s parental rights was in the best interest of the Child. This timely
appeal followed.


                                         II. ISSUES


       We consolidate and restate the issues raised on appeal by Father as follows:

       A. Whether clear and convincing evidence supports the trial court’s
       termination of Father’s parental rights to the Child pursuant to Tennessee Code
       Annotated section 36-1-113(g)(6).

       B. Whether clear and convincing evidence supports the trial court’s ruling that
       termination of Father’s parental rights was in the Child’s best interest pursuant
       to Tennessee Code Annotated section 36-1-113(i).




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                              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 of the parent-child relationship. 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,
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

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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 2010, the Tennessee Supreme Court provided guidance to this court in reviewing
cases involving the termination of parental rights:

       A reviewing court must review the trial court’s findings of fact de novo with
       a presumption of correctness under [Rule 13(d) of the Tennessee Rules of
       Appellate Procedure]. See In re Adoption of A.M.H., 215 S.W.3d [793,] 809
       [(Tenn. 2007)]. In light of the heightened burden of proof in proceedings
       under [Tennessee Code Annotated section] 36-1-113, the reviewing court must
       then make its own determination regarding whether the facts, either as found
       by the trial court or as supported by a preponderance of the evidence, provide
       clear and convincing evidence that supports all the elements of the termination
       claim. State Dep’t of Children’s Servs. v. Mims, 285 S.W.3d [435,] 447-48
       [(Tenn. Ct. App. 2008)]; In re Giorgianna H., 205 S.W.3d 508, 516 (Tenn. Ct.
       App. 2006); In re S.M., 149 S.W.3d 632, 640 n. 13 (Tenn. Ct. App. 2004).
       Appellate courts conduct a de novo review of the trial court’s decisions
       regarding questions of law in termination proceedings. However, these
       decisions, unlike the trial court’s findings of fact, are not presumed to be
       correct. In re Angela E., 303 S.W.3d [240,] 246 [(Tenn. 2010)]; In re
       Adoption of A.M.H., 215 S.W.3d at 809.

In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010).

                                    IV. DISCUSSION

                                             A.

      Tennessee Code Annotated section 36-1-113(g)(6) provides the grounds for
termination of parental rights based upon a parent’s incarceration. The applicable provision
provides as follows:

       (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:



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                                              ***

       (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[.]

Father does not challenge the determination that a statutory ground existed to support the
termination of his parental rights. Indeed, Father received a life sentence when the Child was
under eight years of age. Accordingly, we hold that clear and convincing evidence exists in
the record to support the trial court’s termination of Father’s parental rights based upon his
incarceration.

                                                B.

       Having concluded that there was clear and convincing evidence supporting a statutory
ground to terminate Father’s parental rights, we must consider whether termination of
Father’s parental rights was in the best interest of the Child. 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;

       (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;




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       (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 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).

        A number of the best interest factors weigh against Father. He had not made the
adjustment of circumstances necessary to provide a stable home for the Child as evidenced
by his incarceration. Tenn. Code Ann. § 36-1-113(i)(1). He had not visited the Child since
2010. Tenn. Code Ann. § 36-1-113(i)(3). The Child had not maintained a meaningful
relationship with Father since 2010. Tenn. Code Ann. § 36-1-113(i)(4). The Child resides
in a safe and stable foster home that expressed a desire to adopt him. Removing the Child
would likely traumatize him. Tenn. Code Ann. § 36-1-113(i)(5). Father is currently
incarcerated and cannot provide a safe and stable home for the Child. It is unlikely that he
will be released before the Child reaches the age of majority. Tenn. Code Ann. § 36-1-



                                                 -7-
113(i)(7). Father had not paid child support consistent with the child support guidelines
since his incarceration. Tenn. Code Ann. § 36-1-113(i)(9).

       We do not wish to discount Father’s love for the Child or his understandable
reluctance in allowing the Child to proceed with adoption. However, the Child has
languished in custody for far too long and should be given the opportunity to thrive in his
adoptive placement. Although not raised as a separate issue on appeal, Father complains that
he was never provided notice of the dependency and neglect proceedings. This argument
must fail because “any previous lack of notice, even if error, was remedied by his
participation with counsel at the termination hearing.” In re Adoption of M.P.J., No. W2007-
00379-COA-R3-PT, 2007 WL 4181413, at *12 (Tenn. Ct. App. Nov. 28, 2007) (citing In re
Hoover-Crawford, No. M2000-01655-COA-R3-CV, 2001 WL 846044, at *5 (Tenn. Ct. App.
July 27, 2001), perm. app. denied (Tenn. Dec. 17, 2001)). 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 Child.
Accordingly, we affirm the decision of the trial court.


                                   V. CONCLUSION

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

                                           ______________________________________
                                           JOHN W. McCLARTY, JUDGE




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