                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                             Assigned on Briefs September 5, 2013

                                       IN RE JEREMIAH I.R.

                       Appeal from the Juvenile Court for Knox County
                               No. 124672    Tim Irwin, Judge




              No. E2013-00899-COA-R3-PT-FILED-SEPTEMBER 30, 2013


Spenser R.S. (“Father”) appeals the termination of his parental rights to his minor son,
Jeremiah I.R. (“the Child”). The Department of Children’s Services (“DCS”) removed the
Child from his mother’s custody after a babysitter took the Child and two siblings to the
emergency room for injuries to the siblings.1 Father’s whereabouts were then unknown and
his paternity of the Child had not yet been established. The Child’s mother entered into an
agreed order with DCS stipulating that the Child was dependent and neglected in her care.
Thereafter, the mother voluntarily relinquished her parental rights.2 Some 18 months later,
DCS filed a petition to terminate Father’s rights. The trial court granted the petition based
on its findings, by clear and convincing evidence, that multiple grounds for termination exist
and that termination is in the best interest of the Child. Father appeals. We affirm.

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

C HARLES D. S USANO, J R., P.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.

Gregory E. Bennett, Seymour, Tennessee, for the appellant, Spenser R.S.




        1
         Father is not the biological parent of the other two children, who are the Child’s half-brothers. The
two are not a subject of the termination order in the present case.
        2
          The record indicates that Jamie R. (“Mother”), the Child’s mother, voluntarily relinquished her
rights to the Child before DCS initiated termination proceedings. She is not a party to this appeal. We refer
to her only as necessary to present the facts relevant to Father’s case.
Robert E. Cooper, Jr., Attorney General and Reporter, and Alexander S. Rieger, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.

                                        OPINION

                                             I.

       DCS filed its petition to terminate Father’s rights on October 5, 2012. At the time of
the March 2013 bench trial that followed, the Child was two. He had been in foster care, in
the home of T.L.R., his former babysitter (hereinafter “Foster Mother”), and her family since
he was four months old. Father was incarcerated at the time of trial and chose to participate
by telephone. Father explained that he preferred not to be transported to the courthouse
because he would miss his G.E.D. classes. We summarize the proof.

       Father and Mother met in high school. Three years later, when Father had just been
released from jail, they met again at a grocery store. They slept together that same day. In
April 2010, Father learned that Mother was pregnant. That Fall, Father began living with
Mother at her grandmother’s house. Father testified that Mother used drugs while she was
pregnant “on and off” during their relationship. He broke up with Mother before the Child
was born after warning her that he would leave if she kept using drugs. Father conceded that,
before he left, he did not provide Mother any support or give her any money for the Child.
He testified, “I knew she would spend it on drugs.”

       Foster Mother testified that her goddaughter introduced her to Mother while Mother
was pregnant. Foster Mother, herself a mother of three, said she “just stepped in to kind of
help her and . . . [the Child].” Foster Mother took Mother to her doctor appointments, bought
her food, and purchased all the items she would need for a newborn. The day before the
Child was born, Foster Mother took Mother to the hospital, but Mother was not then
admitted. Mother telephoned Father, and he came to the hospital. According to Foster
Mother, Father was “very intoxicated” when he arrived with two other women, one of whom
was also intoxicated. Father and Mother argued for the next three hours. Foster Mother took
Mother home after a nurse declined to let Mother leave with Father. The next morning,
Mother went into labor. She returned to the hospital where she was met by Foster Mother.
The Child was born drug exposed. Father arrived after the Child’s delivery. According to
Foster Mother, he was “excited and bubbly, saying that . . . he had a new baby.” Foster
Mother noted that Father still smelled of alcohol. Father stayed with Mother in her hospital
room during part of her four-day stay. Foster Mother and her husband provided supplies and
furnishings for the Child. Almost immediately, from the time Mother took the Child home,
she began calling Foster Mother to babysit.

                                             -2-
        Father saw the Child twice before he was jailed – for a second time – for failing to pay
child support for another child, a six-year-old daughter. He was incarcerated from February
2011 to May 2011. Father testified he did not check on the Child after he was released
because he did not know where the Child was living. Father conceded that, although he was
at the hospital, he did not ensure that he was named as the Child’s father on the birth
certificate. He made no other effort to establish himself as the Child’s father. He further
admitted he did nothing to make sure the Child was safe after he left the hospital.

        On May 18, 2011, DCS took the Child into protective custody following a hospital
visit and allegations of physical abuse. Foster Mother, who had been babysitting the Child
and his siblings, took all three children to the emergency room after observing severe
bruising and other injuries to the siblings. DCS’s investigation indicated that the children
had been physically abused by a boyfriend of Mother’s, and that Mother had failed to protect
them. At the time of the Child’s removal, Mother was arrested on drug-related charges.
Mother and Foster Mother identified Father as the Child’s biological father, but they were
unaware of his whereabouts and had no contact information. DCS was unable to locate
Father until he was incarcerated in August 2011. Once Father was located in prison, DCS
secured DNA testing that confirmed Father’s paternity. Thereafter, DCS obtained an order
requiring Father to pay child support.

        In August 2011, Father was incarcerated on a charge of felony theft over $10,000 in
connection with his fraudulent use of a stolen credit card. He was convicted as charged
pursuant to his guilty plea. In October 2011, he was sentenced to six years in prison. At
trial, Father testified he used the credit card to buy “clothes, shoes, a little bit of everything”
for himself. He did not buy anything for the Child.

        Foster Mother, as someone who knew the Child before he came into foster care,
agreed to become the Child’s “kinship” foster parent. As a result of the Child’s exposure to
drugs, he required occupational therapy during his infancy. In addition, he wore a helmet to
reshape his head that was flat on one side. Foster Mother testified that, since coming into her
care, the Child had undergone “a lot of therapy, in-home and outside of the home, and he
ha[d] overcome his issues with the help of the doctors and us being persistent.” After six
months, the Child was no longer required to wear his corrective helmet. Foster Mother was
“absolutely” ready to adopt the Child if given the opportunity. The Child’s DCS case
manager testified that the Child was doing “very, very well” in the custody of his foster
family.

      Father was eligible for parole in August 2013. In prison, he took classes five days
a week in an effort to obtain his G.E.D. He also completed required anger management

                                                -3-
classes. Asked why his parental rights should not be terminated, Father testified that he
loved the Child. He continued: “I know I ain’t been there for him, but I’ve been
incarcerated.” Father said he wanted to “make it right” after he was released. He intended
to find a house and a job and become a positive influence in the Child’s life.

        The trial court terminated Father’s parental rights based on its finding of abandonment
by failure to support Mother in the months before the Child’s birth; abandonment by conduct
exhibiting a wanton disregard for the Child’s welfare; and a persistence of the conditions that
led to the Child’s removal. Also, by clear and convincing evidence, the court found it is in
the Child’s best interest to permanently sever Father’s parental rights. Father filed a timely
notice of appeal.

                                              II.

       Father presents issues for our review that we restate as follows:

              1. Did the trial court err in finding, by clear and convincing
              evidence, that Father abandoned the Child by wilfully failing to
              support the Child’s mother in the four consecutive months
              immediately preceding the birth of the Child?

              2. Did the trial court err in finding, by clear and convincing
              evidence, that Father, prior to his incarceration, abandoned the
              Child by engaging in conduct which exhibited a wanton
              disregard for the Child’s welfare?

              3. Did the trial court err in terminating Father’s rights based on
              its finding, by clear and convincing evidence, that conditions
              persisted that would subject the Child to further abuse or
              neglect?

              4. Did the trial court err in finding, by clear and convincing
              evidence, that termination of Father’s parental rights is in the
              best interest of the Child?

On appeal, DCS states that it will not defend the trial court’s finding of “persistence of
conditions.” It takes this position because the Child was not removed from Father’s home,
Father’s whereabouts were unknown at the time of the Child’s removal, and Father did not
participate in the dependency and neglect hearing or hold himself out as a placement option.
DCS moves this court to affirm the trial court’s judgment based on its finding of other

                                              -4-
grounds warranting termination. In view of DCS’s position, we will only review the issues
Father raises as to the remaining grounds as well as the best interest determination.

                                             III.

       We employ the following standard of review in cases involving the termination of
parental rights:

              [T]his Court’s duty. . . 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). The trial court’s findings of fact are
reviewed de novo upon the record accompanied by a presumption of correctness unless the
preponderance of the evidence is otherwise. Id.; Tenn. R. App. P. 13(d). In weighing the
preponderance of the evidence, great weight is accorded the trial court’s determinations of
witness credibility, which shall not be reversed absent clear and convincing evidence to the
contrary. See Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002). “This is true because the
trial court alone has the opportunity to observe the appearance and the demeanor of the
witnesses.” Tenn-Tex Properties v. Brownell Electro., 778 S.W.2d 423, 426 (Tenn. 1989).
Questions of law are reviewed de novo with no presumption of correctness. Langschmidt
v. Langschmidt, 81 S.W.3d 741, 744-45 (Tenn. 2002).

       It is well established that parents have a fundamental right to the care, custody, and
control of their children. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551
(1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988). While parental rights are
superior to the claims of other persons and also the government, they are not absolute, and
they may be terminated upon a showing of an appropriate statutory ground. See Blair v.
Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). 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 interests of the child.” T.C.A.
§ 36-1-113(c); In re F.R.R., III, 193 S.W.3d at 530. Both of these elements must be
established by clear and convincing evidence. See T.C.A. § 36-1-113(c)(1); In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002). 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. M.S., filed
August 13, 2003), and 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
S.W.3d 632, 639 (Tenn. Ct. App. 2004).

                                              -5-
       On our review, we proceed mindful that only a single ground must be clearly and
convincingly proven to justify a basis for termination. In re Audrey S., 182 S.W.3d 838, 862
(Tenn. Ct. App. 2005).

                                            IV.

       The trial court found that Father abandoned the Child pursuant to Tenn. Code Ann.
§ 36-1-102(1)(A)(iii). The statute provides that “abandonment” occurs when “[a] biological
or legal father has either willfully failed to visit or willfully failed to make reasonable
payments toward the support of the child’s mother during the four (4) months immediately
preceding the birth of the child. . . .” The court found as follows:

              [Father] could have supported the mother during her pregnancy
              and in the first few weeks since this child’s birth when [he] was
              not incarcerated. He testified that he did not give her any money
              because he knew she would spend it on drugs. While the Court
              agrees that it would have been inadvisable to give the mother
              cash, he could have supported her by ensuring that her expenses
              for food and housing, medical care, transportation, and supplies
              and furnishings for the baby were covered. He failed to do that.
              And the Court, therefore, finds that [Father] abandoned this
              child in that he willfully failed to support the child’s mother
              during the four months immediately preceding the birth of the
              child.

        The testimony showed that Father was aware that Mother was using drugs when she
was pregnant. Before the Child was born, he admittedly refused to give her any money
because, in his words, she was continuing to use drugs. At trial, the court was somewhat
sympathetic to Father’s argument to the effect that “it would have been ill-advised to give
a drug-using mother money to support her habit during her pregnancy.” We think, however,
that the trial court correctly concluded that Father could have found other ways – aside from
handing Mother cash – to support her financially in the months leading to the Child’s birth.
To this end, it does not escape notice that Foster Mother did just that. She provided Mother
with meals, transportation to medical appointments, and baby supplies in preparation for the
Child’s arrival. In contrast, Father did nothing. He essentially left Mother in her pregnant
condition and never looked back.

       The evidence preponderates overwhelmingly in favor of the trial court’s finding that
Father willfully failed to support Mother during the four months immediately preceding the
Child’s birth. The trial court did not err in terminating Father’s rights on the ground of

                                             -6-
abandonment pursuant to Tenn. Code Ann. § 36-1-113(g)(1)(2010), as defined in Tenn. Code
Ann. § 36-1-102(1)(A)(iii)(2010).

                                              V.

       Next, the trial court found that Father abandoned the Child as defined in Tenn. Code
Ann. § 36-1-102(1)(A)(iv). As relevant in the present case, “abandonment” under subsection
(iv) means that “[a] parent . . . 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 . . . has been
incarcerated during all or part of the four (4) months immediately preceding the institution
of such action or proceeding, and . . . the parent or guardian has engaged in conduct prior to
incarceration that exhibits a wanton disregard for the welfare of the child . . . .” The trial
court succinctly stated its finding:

              [Father’s] conduct prior to incarceration [] exhibits a wanton
              disregard for the welfare of the [C]hild. He left the [C]hild’s
              mother while she was pregnant, knowing she was using drugs,
              and took no action to protect the [C]hild. After the [C]hild’s
              birth, he did nothing to establish paternity or to become an
              active part of the [C]hild’s life. He made no effort to locate or
              check on his child or ensure the [C]hild’s welfare and safety.
              He did nothing. He was in jail and then out of jail and then in
              jail again. He committed crimes likely to lead to extended
              incarceration. And he didn’t even use any of the proceeds from
              those crimes for the benefit of the [C]hild. He did nothing to
              demonstrate that he cared at all.

         The court accurately summarized and properly considered the evidence demonstrating
Father’s wanton disregard for the Child’s welfare. As the trial court observed, Father was
incarcerated within weeks after the Child’s birth – for failure to support another child. A few
months later, he went on a $10,000 shopping spree with a stolen credit card and purchased
“a little bit of everything” he wanted for himself. Even when the money he had wasn’t his
own, Father chose not to spend any of it on the Child. Moreover, his conduct landed him
back in jail, this time for a six-year term. In all, by the time of trial, Father had been
incarcerated for one crime or another for all but four months of the Child’s life. Father
expressly admitted that, as a result of his actions, he had never “been there” for the Child.

       This Court has held that “probation violations, repeated incarceration, criminal
behavior, substance abuse, and failure to provide adequate support or supervision for a child
can, alone, or in combination, constitute conduct that exhibits a wanton disregard for the

                                              -7-
welfare of a child.” In re Audrey S., 182 S.W.3d at 867-68. All of these factors are present
in the instant case. Accordingly, we conclude that the trial court properly terminated Father’s
rights based on his conduct evidencing a wanton disregard for the Child’s welfare.

                                                      VI.

        “The ultimate goal of every proceeding involving the care and custody of a child is
to ascertain and promote the child’s best interests.” In re Marr, 194 S.W.3d 490, 498 (Tenn.
Ct. App. 2005). Once grounds for termination have been found, the focus of the proceedings
shifts to the best interest of the child. Id. Having concluded that the trial court properly
terminated Father’s rights, we next consider whether the decision is in the Child’s best
interest. We are guided in our review by the relevant statutory factors set forth in Tenn. Code
Ann. § 36-1-113(i).3



       3
           The factors are as follows:

                  (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;

                  (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
                                                                                                 (continued...)

                                                      -8-
       The trial court set out its “best interest” analysis as follows:

                  [Father] has not made such an adjustment of circumstance,
                  conduct, or conditions as to make it safe and in the [C]hild’s
                  best interest to be in his home. [Father] did not maintain regular
                  visitation or other contact with the [C]hild while he had the
                  opportunity to do so and, now, due to his incarceration, is unable
                  to maintain regular visitation. . . . As a result, no relationship
                  at all has otherwise been established between [Father] and [the
                  Child]. A change of caretakers and physical environment from
                  the only home the [C]hild had really known is likely to have a
                  detrimental effect on the [C]hild’s emotional, psychological and
                  medical condition. [Father] has shown neglect toward this child.
                  He is incarcerated, without a healthy and safe physical
                  environment to offer the [C]hild.. And he failed to pay child
                  support . . .

       The evidence shows that the Child was doing well in his foster home. He was being
loved and cared for by Foster Mother, who began taking care of him as a newborn and was
the only real “parent” the Child had ever known. Foster Mother expressed her and her
husband’s certain intention to adopt the Child if the opportunity arose. For his part, Father
remained incarcerated for a crime he committed soon after the Child was born. He had an
expectation, but no guarantee, that he would be paroled and available to take custody of the
Child within the next six months. Asked what assurances he could offer to indicate that he
was capable of caring for the Child, Father responded that he planned to find a job and get
a house. Father testified, “I really can’t tell you offhand cause I really don’t know.” In our
view, Father’s efforts to obtain his G.E.D. in prison, and his plans to become a productive


       3
           (...continued)
                   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.



                                                        -9-
citizen on his release, are commendable. The question of what is best for the Child, however,
must be viewed from the perspective of the Child and not that of the parent. White v.
Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 1994). In short, we agree with the trial court’s
closing remarks at trial:

              [The court] [is] clearly convinced that this child staying in his
              current home where he is thriving, where he’s loved, where he
              has a chance at permanency, a home that wants him forever
              would be in his best interest [rather] than to be returned to this
              unstable potential parent.

The evidence does not preponderate against the trial court’s determination that the Child’s
interests are best served by terminating Father’s rights and allowing the Child a real “chance
at permanency” instead of, at best, uncertainty.

                                            VII.

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


                                     __________________________________________
                                     CHARLES D. SUSANO, JR., PRESIDING JUDGE




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