                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                          Assigned on Briefs, March 8, 2011

                                   IN RE: ZADA M.

                  Appeal from the Juvenile Court for Greene County
                  No. J22232    Hon. Kenneth N. Bailey, Jr., Judge


                 No. E2010-02207-COA-R3-PT - Filed April 11, 2011




In this parental termination case the Trial Court, upon hearing evidence, terminated the
mother's parental rights upon finding grounds of abandonment and that it is in the best
interest of the child. The mother has appealed and we conclude from the record that the
statutory grounds for abandonment were established by clear and convincing evidence, and
we affirm the Judgment of the Trial Court.


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


H ERSCHEL P ICKENS F RANKS, P.J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., J., and D. M ICHAEL S WINEY, J., joined.


Jennifer Luther and Leslie Douthat, Greeneville, Tennessee, for the appellant, D.M., and the
Guardian Ad Litem.

Robert E. Cooper, Jr., Attorney General and Reporter, and Joshua Davis Baker, Assistant
Attorney General, Nashville, Tennessee, for the appellee, The Tennessee Department of
children's Services.


                                        OPINION

       The Department of Children’s Services filed a Petition to Terminate Parental Rights
of D.M. and Unknown Fathers, to the minor child, Zada M, (d.o.b. 12/6/06). The Petition
alleged that the child had been adjudicated dependent and neglected by the Court on October
31, 2007, after the child had been taken into emergency state custody on September 5, 2007.
The Petition alleges that respondent D.M., the child’s mother, is incarcerated at Swannanoa
Correctional Institute in North Carolina, and that the child’s father is unknown. Further, that
the putative father registry has been consulted and that no claims of paternity exist. The
Petition alleges that the mother has abandoned the child due to her incarceration, and that she
has been incarcerated for four months before the Petition was filed, and is serving a five year
sentence for robbery with a dangerous weapon. The Petition further alleges that mother
exhibited a wanton disregard for the child’s welfare by engaging in criminal activity. The
Petition also alleges that the unknown father has failed to establish paternity, to seek
visitation, or to pay child support, and that termination is in the child’s best interest. The
Petition alleges that respondents have shown little or no interest in the child, and that her
foster parents are bonded with her and wish to adopt her.

      The mother filed an Answer to the Petition, and denied that her rights should be
terminated, and asked for a continuance due to her incarceration.

       The Court held a hearing on August 3, 2010. Mother’s deposition (taken from prison
with both attorneys and the guardian ad litem participating) was filed and the mother testified
that she was 26 years old, and that the child was taken into custody when she was 9 months
old. The mother testified that she had a good life with the child before the child was taken
into custody, and that she and the child lived with Timothy Gass, who was the mother’s
boyfriend, but not the child's father. Further, that she had no prior criminal record.

        The mother testified about the circumstances around her criminal conviction, and that
she had spent her time in prison bettering herself, and had received a GED, completed a
parenting skills class, and completed a Choices for Change Class, which was a drug
education course. Finally, the mother testified that she pled guilty because she was told that
if she didn't she could get 7 to 15 years, and that 3.5 to 5 years sounded better. She admitted
that on the day of the robbery she took oxycontin given to her by Gass. Several other
witnesses testified and at the conclusion of the evidentiary hearing, the Guardian Ad Litem
made a recommendation against terminating the mother's parental rights, because she said
she thought it was sad that the mother never had the chance to reunite with the child.

       The Court ruled from the bench, finding that the termination was appropriate and
made very specific factual findings regarding the grounds for termination and the best
interest analysis.

       A Final Decree of Guardianship and Order Terminating Parental Rights was entered
on October 19, 2010. The Court found that the child had been in State custody continuously
since September 5, 2007, and that the mother was incarcerated in another state and due to be

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released in March 2011. The Court found that the child had already been in custody 35
months, during the most formative years of her life for bonding purposes. The Court said
that “statistics and studies tell us that a child that doesn’t bond with a parent or a parent-like
figure in the first three (3) years of their life grows up to have all kinds of emotional
disorders, including the lack of the ability to bond and relate to other people.” The Court
found that the child could not bond with her mother due to her mother’s incarceration, and
that it was “irrational . . . to expect the Department to wave a magic wand and get this child
to bond with the mother.”

        The Court observed that the mother admitted that she had the child (then 9 months
old) in the car with her when the armed robbery was committed, and that two men who were
in the car went into a gas station, stole the money, ran back to the car, and sped off. The
mother and another lady who was in the car (also with her child) did not go to the police
either in North Carolina or Tennessee. The Court found the mother admitted that she was
addicted to oxycodone at that time, and was taking it every day.

       The Court found that the mother deserved some credit for completing a class called
Choices for Change, which met once a week for eight weeks. The Court noted that it dealt
with people with addictions on a daily basis, and was very familiar with addiction. The Court
stated that when asked if she attended NA or AA meetings, the mother said she did
“sometimes”, “maybe once a month.” The Court found the mother had been in prison for 35
months and had thus attended at most 35 meetings, which “does not symbolize a mother who
has turned it around.” The Court noted the mother also had two older children who were in
the custody of her ex-husband’s grandmother at the time all of these events occurred.

        The Court found that there was nothing to show the mother had made a significant
change, and that when she was released in March 2011, she would need time to get a job,
stable housing, etc, which would take several months. The Court found that by that time the
child would have been in custody for 50 months, and that for a young child who was
adoptable to be allowed to languish in foster care for over four years was doing the child a
disservice. The Court found that no one forced the mother to drive the car when a robbery
was committed, to take her child along, to fail to turn herself into authorities, or to fail to
notify DCS about family resources, and that the situation was of the mother’s own making.

       The Court found by clear and convincing evidence the mother was incarcerated for
four months before the Petition was filed, that she was serving a five year sentence for aiding
and abetting robbery with a dangerous weapon, and that she engaged in conduct that
exhibited a wanton disregard for the child’s welfare. The Court found by clear and
convincing evidence the mother’s parental rights should be terminated due to the wanton
disregard for the safety and welfare of the child. The Court also terminated the parental

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rights of the unknown father.

       Further, the Court terminated the mother’s parental rights on the ground that the
conditions leading to removal still persisted, and were unlikely to be remedied at an early
date so that the child could be returned to the mother. The Court held the mother had failed
to demonstrate that she understood what was necessary to parent a child, or that she could
maintain a safe, consistent and stable home environment for the child. Thus, the Court found
that multiple grounds existed for the termination of the mother's parental rights.

       Regarding the best interests of the child, the Court found that clear and convincing
evidence demonstrated that it was in the child’s best interests to terminate the mother’s
parental rights, because there had not been an adjustment of circumstance, conduct or
conditions in the mother’s life to make it safe for the child to be with the mother. The Court
found that at the time of the robbery, the mother was living with her boyfriend, who was also
involved in the robbery, and the mother was addicted to oxycodone. She did not have stable
housing before her incarceration, and had not maintained regular contact with the child even
though she could have sent letters through DCS or her attorney. The Court found there was
no meaningful relationship between the mother and the child, and that the only valuable
relationship the child had was with her foster parents.

        The Court found the child was well-adjusted in her foster home, was involved in
gymnastics, ballet, etc., and that the mother had not paid any child support. The Court found
that it was in the child’s best interests to terminate the mother’s parental rights, and that the
foster parents were committed to the child and intended to pursue adoption.

       Finally, the Court found that DCS had made reasonable efforts to find permanency
for the child by preparing permanency plans, attending court hearings, locating a suitable
foster placement, conducting staffings and team meetings, and exploring suitable relative
resources through ICPC. The mother and the child’s guardian ad litem jointly filed a Notice
of Appeal.

       The issues presented are:

       1.     Whether the Juvenile Court erred in finding by clear and convincing evidence
              that DCS employed reasonable efforts to reunite the mother with the child?

       2.     Whether the Juvenile Court erred in finding by clear and convincing evidence
              that the mother abandoned her child through wanton disregard?

       3.     Whether the Juvenile Court erred in finding by clear and convincing evidence

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                that persistent conditions existed?

        4.      Whether the Juvenile Court erred by failing to enter findings of fact and
                conclusions of law within the statutorily required 30-day time frame following
                termination of the mother’s parental rights?

       The Trial Court terminated the mother’s parental rights based on abandonment and
persistence of conditions. DCS has stated in its brief, however, that since persistence of
conditions was not alleged in the original Petition, and the pleadings were never amended
to conform to the evidence, DCS waived this ground on appeal.1

        DCS was required to prove, by clear and convincing evidence, that at least one of the
statutory grounds for termination existed, and that termination was in the child’s best interest.
In re: C.A.H., 2009 WL 5064953 (Tenn. Ct. App. Dec. 22, 2009). Clear and convincing
evidence “establishes that the truth of the facts asserted is highly probable, and eliminates
any serious or substantial doubt about the correctness of the conclusions drawn from the
evidence”, as it “produces in a fact-finder’s mind a firm belief or conviction regarding the
truth of the facts sought to be established.” Id., quoting In re: M.J.B., 140 S.W.3d 643
(Tenn. Ct. App. 2004). This Court's rule requires us to review findings of fact de novo with
a presumption of correctness, but we also must determine “if the facts, as found by the trial
court or as supported by the preponderance of the evidence, clearly and convincingly
establish the elements necessary to terminate parental rights.” Id.

      Tenn. Code Ann. §36-1-113(g)(1) states that one ground for termination is based upon
abandonment, as defined in Tenn. Code Ann. §36-1-102. The statutory definitions of
abandonment including the following:

        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 . . . and . . . 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).



        1
          Following the Trial Court's announced Judgment from the bench, the Trial Court filed an Order to
Show Cause, stating the DCS's attorney was to have submitted an Order terminating the mother's parental
rights, but 61 days had passed and no Order had been filed. DCS's attorney was ordered to show cause why
she should not be held in contempt. The Court issued an Order dismissing the show cause, after DCS
submitted the Judgment on October 7, 2010.

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       We have previously recognized, parental incarceration “serves only as a triggering
mechanism that allows the court to take a closer look at the child’s situation to determine
whether the parental behavior that resulted in incarceration is part of a broader pattern of
conduct that renders the parent unfit or poses a risk of substantial harm to the welfare of the
child.” In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005). This Court has also stated:

       The statutory language governing abandonment due to a parent’s wanton disregard
       for the welfare of a child “reflects the commonsense notion that a parental
       incarceration is a strong indicator that there may be problems in the home that
       threaten the welfare of the child” and recognizes that a “parent’s decision to engage
       in conduct that carries with it the risk of incarceration is itself indicative that the
       parent may not be fit to care for the child.”

In re: C.A.H., 2009 WL 5064953 (Tenn. Ct. App. Dec. 22, 2009).

       Thus, when parental incarceration is coupled with “a broader pattern of conduct” prior
to incarceration that exhibits a wanton disregard for the welfare of the child, the statutory
ground has been met.

       This Court recognized in In re: C.A.H., that “[n]umerous cases have held that a
parent’s previous criminal conduct, coupled with a history of drug abuse, constitutes a
wanton disregard for the welfare of the child”, and 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.” Id., quoting In re Audrey S.

       In this case, as the Trial Court found, the mother had a history of drug use, and by her
own testimony, established that she was addicted to oxycontin at the time the child came into
custody. She was using it daily. She admitted that she started using oxycontin when the
child was only 3 months old, and that the child was with her at the time of the robbery, and
she was on oxycontin.

        The mother's reckless behavior with an infant clearly exhibits a wanton disregard for
the child’s welfare and safety, and this coupled with her three year incarceration, clearly and
convincingly establishes that the ground of abandonment, as discussed above, was proven.

      The mother argues the Department did not prove that it made reasonable efforts to
make it possible for the child to return to the mother. We have previously ruled, however,
that DCS has no obligation to make reasonable efforts when termination is based on the
ground of abandonment. In re: C.A.H. This issue is without merit.

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       The mother did not appeal the Trial Court’s finding that termination was in the child’s
best interest. Thus, having determined that the Trial Court’s termination based on
abandonment was proper, the Trial Court’s judgment will be affirmed.

       Finally, the mother argues that, pursuant to Tenn. Code Ann. §36-1-113(k), the Trial
Court is required to enter an order making specific findings of fact and conclusions of law
within thirty days of the hearing, but in this case, the Trial Court’s order was not entered for
76 days. DCS argues that while the delay in entering the order is “unfortunate”, it does not
warrant reversal of the Trial Court’s decision.

        The precise issue was decided by this Court in the case of In re: M.R.W., 2006 WL
1184010 (Tenn. Ct. App. May 3, 2006). In that case, the trial court did not issue its order
terminating parental rights and making specific fact findings for over 60 days. The appellant
argued that the statutory provision cited above was mandatory, and was akin to a
jurisdictional requirement. Id. We disagreed, stating that the statutory provision regarding
the time frame was directory, and merely evidenced the legislature’s intent that parental
termination cases be handled expeditiously. Id. That Court found that, where the trial court
failed to enter the order within thirty days, the order did not have to be vacated, and the
failure to comply with the time frame did not warrant reversal. We hold this issue is without
merit.

       The Trial Court’s judgment is affirmed and the cause remanded, with the cost of
the appeal assessed to the mother, D.M.




                                                    _________________________________
                                                    HERSCHEL PICKENS FRANKS, P.J.




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