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

                                    IN RE LAVANIE L. L.1
                     Appeal from the Juvenile Court for Knox County
                       No. 108684 Hon. Timothy E. Irwin, Judge




               No. E2013-00887-COA-R3-PT-FILED-OCTOBER 31, 2013




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 on the statutory grounds of abandonment and severe
child abuse and that termination of his 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., P.J., and T HOMAS R. F RIERSON, II, J., joined.

Gregory E. Bennett, Seymour, Tennessee, for the appellant, Bernadin L.

Robert E. Cooper, Jr., Attorney General and Reporter, and Martha A. Campbell, Deputy
Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, Department
of Children’s Services.

Mary L. Ward, Knoxville, Tennessee, guardian ad litem for the minor, Lavanie L. L.




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

       Lavanie L. L. (“the Child”) was born to Adeline D. (“Mother”) and Bernadin L.
(“Father”) on March 20, 2000 in Florida. Mother and Father were married. Mother was 13
years when she conceived the Child with Father, who was 22 years old at the time. Mother
and Father became estranged due to Father’s alleged physical abuse of Mother, who
eventually filed for divorce and absconded with the Child. Since that time, Father failed to
maintain a relationship with the Child.

       Mother lived in various places throughout the Child’s upbringing until she eventually
moved to Tennessee. On May 3, 2007, the Tennessee Department of Children’s Services
(“DCS”) removed the Child from Mother’s care because Mother had left the Child alone for
“extended periods of time” in a room that was found unfit for habitation. The Child was
found to be dependent and neglected and was placed in foster care. Mother’s parental rights
were eventually terminated.

       After some searching, DCS located Father, who was in pre-trial detention in Florida
because he had been charged with multiple counts of sexual battery of a child less than 12
years old and lewd and lascivious molestation of a child less than 12 years old. It was later
determined that Father had been in jail since June 18, 2006. In 2012, Father was eventually
found guilty of sexual battery of a child less than 12 years old and lewd and lascivious
molestation of a child less than 12 years old. He received sentences of life imprisonment and
25 years for his respective convictions, which he has since appealed.

       On October 2, 2012, DCS filed a petition to terminate Father’s parental rights to the
Child. DCS alleged that Father had abandoned the Child by engaging in conduct that
exhibited a wanton disregard for the welfare of the Child; that Father had committed severe
child abuse against another child residing temporarily or permanently in his home and had
been sentenced to more than two years of imprisonment for his conduct; and that the
conditions which led to removal persisted. DCS later amended the petition to remove the
ground relating to the persistence of conditions. The case proceeded on the remaining
statutory grounds.

       A hearing on the termination petition was held on March 14, 2013. Laura Clabo, a
DCS employee, testified that except for a six-month period of time, she had been the Child’s
case manager since the Child’s removal. She recalled that the Child had no memory of
Father and could only recount Father’s first name. She stated that Mother supplied Father’s
last name. She eventually located Father in the Miami-Dade County Jail in Florida. She

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claimed that Father had since been placed in the state prison facility after being convicted of
two felonies. She identified the certified criminal convictions, which provided that Father
had been sentenced to 25 years for the sexual battery conviction and had received a sentence
of life imprisonment for the lewd and lascivious conviction. She related that the events
which led to the convictions occurred sometime between 2003 and 2006.

        Ms. Clabo testified that Father had last visited the Child before the Child’s third
birthday. She recalled that Father suggested she contact his sister to inquire as to whether
his sister could serve as an alternative placement. She said that she contacted the sister and
gave her the pertinent information to file a petition but that “nothing ever came of that.” She
stated that the Child was eventually placed in a foster home in April 2008 and that the Child
had remained in the home since that time. She said that the Child was “doing wonderful.”

        Father conceded that he had been convicted of sexual battery of a child and lewd and
lascivious molestation of a child and that he had also been charged with the same offenses
relative to a second child. He claimed that the prosecutor declined to prosecute him on the
charges relating to the second child after he had been convicted of the offenses relating to
the first child. He stated that he knew the female victims through his relationship with their
respective mothers. He insisted that he never stayed in the same home with the first child but
conceded that he had stayed in the same home with the second child, from time to time. He
stated that both children were approximately three years older than the Child. He stated that
he had appealed his convictions, which were currently upon remand to the trial court because
of an issue with the trial transcript.

       Father claimed that in 2003, the Child was living with him when he petitioned the
court for custody after learning that Mother had been arrested. He stated that his petition was
dismissed after Mother retrieved the Child and never returned. He said that he last saw the
Child in 2005, when she visited him for the day. He related that after that time, he wrote the
Child letters, spoke with her on the telephone, and occasionally submitted child support
payments to Mother through relatives.

       Father acknowledged that he had received a letter in which the Child had informed
him that she wished to be adopted. He opined that he did not know whether the Child had
actually written the letter. He stated that he objected to the Child’s adoption because he
loved her and because he wanted her to develop a relationship with her relatives. He
conceded that his relatives were unable to care for the Child at the present time and that
attempts by his relatives to gain custody were rebuffed by DCS for various reasons. He
believed that he would be able to care for the Child once his convictions were overturned on
appeal.



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      The Child, who was almost 13 years old at the time of the trial, testified that she only
remembered talking to Father on the telephone “[s]ometimes.” When asked whether she
remembered Father, she stated, “I remember him, but I don’t remember anything about him.”
She declared that she was happy in her foster home and that she wished to be adopted soon
because she only had five more years of her childhood left.

      The Child’s foster mother testified that the Child had resided in her home for
approximately five years and had developed a sisterly relationship with her other foster child,
who was 12 years old. She related that the Child was doing well in school and had been
through counseling. She claimed that she was ready to adopt the Child.

       The guardian ad litem stated that she believed that termination of Father’s parental
rights was in the Child’s best interest.

        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 exhibiting
a wanton disregard for the Child’s welfare, that Father had been found to have committed
severe child abuse, and that Father had been sentenced to more than two years imprisonment
for his conduct. In so finding, the court stated,

       [Father’s] repeated offenses occurred between June 2002 and April 2006.
       They included intercourse, fellatio, and fondling. The victim [] was ten years
       old at the time of [Father’s] arrest. He had been in a relationship with the
       child’s mother and described himself as the child’s babysitter. Similar charges
       involving a second victim were nolle prossed after sentencing on the first
       convictions.

       Upon these facts, the [c]ourt finds that prior to his conviction, [Father]
       engaged in conduct which exhibits a wanton disregard for the welfare of the
       [C]hild.

       [The court] further finds that [Father] has been found to have committed
       severe child abuse and to have been sentenced to more than two (2) years
       imprisonment for conduct which has been or is found to be severe child abuse.

The court further found that termination of Father’s parental rights was in the best interest
of the Child. This timely appeal followed.




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                                         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 36-1-102.

       B. 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)(4) and (5).

       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).

                             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




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       (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
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

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       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.

        Citing In re Shannon P., No. E2012-00445-COA-R3-PT, 2013 WL 3777174 (Tenn.
Ct. App. July 16, 2013), Father asserts that the trial court lacked sufficient evidence to find
that he had abandoned the Child because his convictions “cannot serve as res judicata” while
under appellate review. DCS responds that clear and convincing evidence supported
termination based upon the statutory ground of abandonment because of his conduct that led
to his convictions. DCS states that the court also properly considered the convictions
because the court need not look beyond a judgment of conviction in termination proceedings.

       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).

        As a threshold issue, we must address Father’s contention that the trial court was
precluded from considering his criminal convictions pursuant to this court’s holding in
Shannon. The facts in this case are materially different. In Shannon, mother objected to the
use of a magistrate order in which the court found that she had committed severe child abuse.
2013 WL 3777174, at *4. The order was under review. Id. This court ultimately held that

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the use of the order was unnecessary because the trial court found in the termination
proceedings that mother had committed severe child abuse. Id. The judgments relied upon
in this case were convictions obtained following a jury trial. We do not believe the General
Assembly intended for children to languish in custody based upon the mere possibility that
a conviction could be reversed or a sentence reduced. See In re Audrey S., 182 S.W.3d at 877
(considering the application of Tennessee Code Annotated section 36-1-113(g)(6) when the
parent had filed a petition for post-conviction relief). This court has repeatedly held that trial
courts considering termination petitions need not look beyond the judgment of conviction.
Id. (citations omitted). The statute at issue is silent as to the consideration of the status of the
conviction.

       Moreover, the statute instructs courts to consider a parent’s conduct prior to his
incarceration. 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 (emphasis added). 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).

       In addition to Father’s criminal behavior that led to his convictions, Father also failed
to provide adequate support and supervision for the Child. As evidenced by the Child’s
removal from Mother, the Child was in need of support and supervision from Father. Father
asserted at trial that he occasionally submitted child support through relatives but offered no
evidence in support of his assertion. Father’s last visitation with the Child occurred on an
unspecified date in 2005. Father was content with limited telephone calls and
correspondence through letters since that time. Despite Father’s claims of contact, the Child
had no memory of Father when she was removed from Mother and could not even recount
Father’s last name. With these considerations in mind, we conclude that Father abandoned
the Child by exhibiting a wanton disregard for the welfare of the Child. Thus, a statutory
ground existed for the termination of Father’s parental rights.

                                                B.

        Only one statutory ground must be established by clear and convincing evidence to
justify termination of Father’s parental rights. Tenn. Code Ann. § 36-1-113(c). Having

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found clear and convincing evidence to support the statutory ground of abandonment, we
decline to address the remaining grounds.

                                                  C.

       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;

       (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;



                                                  -9-
       (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. Tenn. Code
Ann. § 36-1-113(i)(1). He had not visited the Child since 2005. Tenn. Code Ann. § 36-1-
113(i)(3). The Child had not maintained a meaningful relationship with Father. Tenn. Code
Ann. § 36-1-113(i)(4). The Child resides in a safe and stable foster home with a foster
mother that expressed a desire to adopt her. Removing the Child would traumatize her.
Tenn. Code Ann. § 36-1-113(i)(5). Questions remain as to whether Father’s potential home
would be safe given his prior behavior, namely Father had sexually abused at least one other
child in his care. Tenn. Code Ann. § 36-1-113(i)(6), (7). Father had not paid child support
consistent with the child support guidelines. Tenn. Code Ann. § 36-1-113(i)(9).

        We do not wish to discount Father’s love for the Child or his desire for the Child to
establish a relationship with relatives. However, the Child has languished in custody for far
too long and even expressed a desire to be adopted because she wants to move forward with
her life. 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.




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                                   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, Bernadin
L.


                                          ______________________________________
                                          JOHN W. McCLARTY, JUDGE




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