                      IN THE COURT OF APPEALS OF TENNESSEE
                                 AT KNOXVILLE
                                          April 17, 2013 Session

                                           IN RE JAMES C. E.1

                       Appeal from the Juvenile Court for Hawkins County
                          No. HJ120219 Hon. Daniel G. Boyd, Judge




                       No. E2012-02217-COA-R3-PT-FILED-MAY 6, 2013




This is a termination of parental rights case in which the Tennessee Department of Children’s
Services sought to terminate the parental rights of Robert E. and Susan E.2 to James C. E.
The trial court terminated Robert E.’s parental rights, finding that he had abandoned James
C. E. and that termination of his parental rights was in the best interest of James C. E. Robert
E. 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., P.J., and D. M ICHAEL S WINEY, J., joined.

William E. Phillips, II, Rogersville, Tennessee, for the appellant, Robert E.

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

Dana L. Scott, Kingsport, Tennessee, guardian ad litem for the minor, James C. E.




1
 This court has a policy of protecting the identity of children in parental rights termination cases by
initializing the last names of the parties.
2
    Susan E. voluntarily surrendered her parental rights and is not a party to this appeal.
                                                 OPINION

                                           I. BACKGROUND

       This appeal relates to the termination of Robert E’s parental rights. Therefore, the
factual background will mostly contain information pertaining to Robert E. (“Father”). On
January 20, 2010, Father was arrested and charged with theft and burglary, Class D felonies.
He was subsequently indicted on the charged felony offenses. James C. E. (“the Child”) was
born to Father and Susan E. (“Mother”) on July 2, 2010. Nine months later, the Child was
removed from the care of Father and Mother (collectively “the Parents”) based upon
allegations that the Child had been exposed to drugs. The Child was placed in the protective
custody of the Tennessee Department of Children’s Services (“DCS”). The Parents were not
present at the custody hearing because DCS could not locate them.

        On April 18, 2011, while on bond for the indicted felony offenses and after the Child
had been placed with DCS, Father was arrested for the initiation of a process intended to
result in the manufacture of methamphetamine, a Class B felony. Shortly thereafter, the
Child was adjudicated as dependent and neglected. Father eventually pled guilty to all three
felony offenses and was sentenced as a Range I, standard offender. He received concurrent
sentences of two years and one day for the Class D felonies 3 and a consecutive sentence of
eight years for the Class B felony.

         On February 28, 2012, DCS filed a petition to terminate Father’s parental rights. The
grounds asserted for termination were abandonment for failure to pay child support, failure
to visit, failure to provide a suitable home, and engaging in conduct prior to incarceration that
exhibited a wanton disregard for the welfare of the Child; substantial noncompliance with
the permanency plan; and failure to remedy the conditions which led to the removal of the
Child. Toward the end of the trial on the termination petition, DCS removed all but one
ground supporting its termination petition, namely Father’s alleged abandonment of the Child
as displayed by his engaging in conduct that exhibited a wanton disregard for the welfare of
the Child.

       Two DCS employees testified in support of the termination petition. However, the
majority of their testimony related to the termination grounds that had been dismissed. As
such, we will only recount the testimony that relates to the remaining termination ground.
Candace Seals, a case manager for DCS, testified that she served as the Child’s case manager
from April 2011 until October 2011. She related that neither parent was present at the home
when the Child was initially removed. She stated that Father was incarcerated approximately


3
    He was ordered to serve 110 days before he was eligible for release for the Class D felonies.
                                                      -2-
one month4 after the Child’s removal. She said that he remained incarcerated and that she
was unsure as to when he would be released. She claimed that Father never contacted her
about the Child and that she was unable to locate him prior to his incarceration. She recalled
that once Father was incarcerated, she finally spoke with him. She recalled that he told her
that he was hiding in the closet when the Child was removed from the house.

       Pam Mayo, a team leader for DCS, testified that she supervised some of the Child’s
case managers. She related that once incarcerated, Father completed a parenting assessment
pursuant to the obligations contained in his permanency plan. She opined that the parenting
assessment revealed that Father would need additional services before he would be able to
reunite with the Child following his release. She claimed that due to Father’s incarceration,
the Child did not have a relationship with Father and had not seen or spoken to Father since
the time of removal.

         Ms. Mayo stated that the Child had been placed in a special needs home because he
had been diagnosed with early-onset asthma. She related that the Child remained in the same
home since the time of removal and was “very attached” to the foster parents. She admitted
that the foster parents had no intention of adopting the Child, who was still very young. She
related that the foster parents believed that the Child needed a younger family. She claimed
that if Father’s rights were terminated, the foster parents were committed in helping the Child
transition into an adoptive home. She believed that DCS would be able to select a suitable
home “pretty quickly” because of the Child’s young age. She related that if the Child were
returned to Father, the Child would also undergo a transition process. She believed it would
take a considerable amount of time to begin that transition given Father’s incarceration. She
opined that the Child was “at a real crucial period in his development” and that “the sooner
[DCS could] get him integrated into a permanent home, the better off he’ll be.”

       Father stated that prior to the Child’s removal, he lived with Mother and the Child.
He claimed that he did not hide in the closet while the Child was removed. He stated that he
handed the Child to Mother before fleeing the house. He explained that he left because he
simply did not “like the law.” He related that he had just been released from jail
approximately three weeks prior to the Child’s removal and that he was “on bond” at the
time. He recalled that he returned to the residence when Mother informed him that the
officers were not looking for him but were there to remove the Child.

       Father acknowledged that he pled guilty to two Class D felonies and one Class B
felony. He related that he had already served his sentence for the Class D felonies and that


4
 She initially testified that he was incarcerated four months after the Child’s removal but later changed her
testimony when confronted with the arrest warrant.
                                                    -3-
he was now serving his eight-year sentence for the Class B felony. He did not know when
he might be released. He opined that he loved the Child and hoped to establish a fatherly
relationship with the Child. He claimed that he was committed to doing what was required
to establish that relationship.

       Following the presentation of the above evidence, the trial court found that there was
clear and convincing evidence to establish that Father had abandoned the Child by engaging
in conduct that displayed a wanton disregard for the welfare of the Child pursuant to
Tennessee Code Annotated section 36-1-102(1)(A)(iv). In so finding, the court stated,

       [Father’s] repeated behavior of burglary and theft and the initiation of the
       process intending to result in manufacture of methamphetamine does show a
       wanton disregard for the welfare of the [C]hild. [Father] was released on bond
       for one charge, and while he was released on bond he engaged in behaviors
       which resulted in further charges resulting in his continued incarceration for
       the past eighteen (18) months.

The court further found that termination of Father’s parental rights was in the best interest
of the Child when Father had not made an adjustment of circumstances as to make it safe and
in the Child’s best interest to return home, had failed to maintain regular visitation and a
meaningful relationship with the Child, and was unable to care for the Child in a safe and
stable manner due to his criminal activity. This timely appeal followed.


                                        II. ISSUES

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

       A. Whether there was clear and convincing evidence to establish that Father
       abandoned the Child.

       B. Whether termination of Father’s parental rights was in the best interest
       of the Child.




                                             -4-
                              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

                                               -5-
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.

        Father argues that the trial court relied upon inadmissible hearsay testimony in
terminating Father’s parental rights. He likewise asserts that the court also considered
conduct that occurred prior to the Child’s birth in concluding that he had wantonly
disregarded the Child’s welfare. He claims that there was “simply no evidence that [he]
actually exhibited a wanton disregard for the welfare of [the Child].” DCS responds that the
“evidence presented at trial clearly and convincingly demonstrated that [Father’s] conduct
prior to incarceration exhibited a wanton disregard for [the Child’s] welfare.” DCS notes
that Father was “free on bond” when he committed an additional crime that resulted in his



                                             -6-
continued incarceration and that he was not present when the Child was removed and could
not be found after the removal.

       Relative to the alleged abandonment of the Child, the Tennessee Code provides, in
pertinent part,

       (1)(A) For purposes of terminating the parental [] rights of [a parent] 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 . . . 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). Under this ground of abandonment, the parent’s
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 at 866. The
court may consider any relevant conduct that occurred prior to incarceration and is not
limited to reviewing the four months immediately preceding the incarceration. Id. at 870-71.
This court has “repeatedly held 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. at 867-68 (citations omitted).

        As a threshold issue, we reject Father’s allegation that the evidence relied upon in
terminating his parental rights was inadmissible. Contrary to Father’s assertion, the
information that was relied upon in finding that he had abandoned the Child was
uncontroverted. Whether he was hiding in a closet or fled from the premises, Father admitted
that he was not present when the Child was removed from the home. He also did not appear
at the custody hearing or contact DCS to inquire about the Child. Instead, he committed a
Class B felony while the Child languished in DCS custody. He admitted that he committed
the felony while on bond for other felony charges that he committed prior to the Child’s
birth. We agree that the criminal activity that occurred prior to the Child’s birth should not

                                              -7-
be considered in support of the allegation that he abandoned the Child. Nevertheless, this
court may consider the fact that Father committed an additional crime while he was awaiting
a resolution on other felony charges, while the Child languished in DCS custody, and while
he failed to attend a custody hearing concerning the Child or even inquire as to the Child’s
status with DCS. Each fact, when considered alone, would not support an allegation of
abandonment. When considered as a whole, Father’s actions provide clear and convincing
evidence to establish that he engaged in conduct prior to incarceration that exhibited a
wanton disregard for the Child’s welfare. Accordingly, we conclude that the record supports
the trial court’s finding that Father abandoned the Child.

                                               B.

       Having concluded that there was clear and convincing evidence supporting the
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 non-exhaustive list of factors provided in Tennessee Code Annotated
section 36-1-113:

       (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;

       (5) The effect a change of caretakers and physical environment is likely to
       have on the child’s emotional, psychological and medical condition;




                                               -8-
       (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).

       In this case, a number of the best interest factors weigh against Father as a result of
his incarceration. As evidenced by his incarceration, Father had not made the adjustment of
circumstances necessary to provide a stable home for the Child. Tenn. Code Ann. § 36-1-
113(i)(1). Father had not visited the Child since the time of removal. Tenn. Code Ann. § 36-
1-113(i)(3). Given the Child’s young age, the Child had not maintained a meaningful
relationship with Father as a result of a lack of visitation. Tenn. Code Ann. § 36-1-113(i)(4).
Given Father’s criminal history of felony convictions, questions remain as to whether the
physical environment of Father’s potential home would be safe following his incarceration.
Tenn. Code Ann. § 36-1-113(i)(7). Father never submitted child support. Tenn. Code Ann.
§ 36-1-113(i)(9).

      We acknowledge that regardless of whether Father’s rights are terminated, the Child
must undergo a lengthy transition process because his foster parents are not willing to adopt

                                                 -9-
such a young child. However, we believe the above considerations overcome the fact that
the Child is in a transitional state and has not attained permanency with potential adoptive
parents. Knowing that the Child was in DCS custody, Father committed an additional crime
while on bond for other felony charges. He chose to resume his criminal behavior instead
of working with DCS and putting himself in a position in which he could adequately care for
the Child. As a result of Father’s actions, he prolonged his incarceration and prevented the
Child from attaining any amount of stability with him or others for several years. 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, Robert E.


                                           ______________________________________
                                           JOHN W. McCLARTY, JUDGE




                                             -10-
