                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                              July 8, 2004 Session

                  IN RE: DNG, SDP, et ux, JASP, v. RLG and KSR

                 Direct Appeal from the Juvenile Court for Davidson County
                     No. 2219-70452    Hon. Betty Adams Green, Judge



                   No. M2003-02810-COA-R3-PT – Filed October 13, 2004



The Trial Court terminated the mother’s parental rights to the four year old child. On appeal, we
Affirm.


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


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and D. MICHAEL SWINEY , J., joined.


Kelli Barr Summers, Brentwood, Tennessee, for Appellant.

Paul A. Rutherford, Nashville, Tennessee, for Appellees.



                                            OPINION


                This is a parental termination case. The birth mother, KSR (“mother”), is a drug
addict who has been a user since the age of 14 or 15. She is presently serving an 8 year sentence for
dealing in cocaine. The minor child DNG (“child”) is now four years old. Petitioners have been the
foster parents and reared the child from birth with the exception of an 8 month period when the
mother was on parole.

               The mother was first incarcerated for dealing in cocaine in March of 1998. She was
paroled in September 1999, then reincarcerated on June 1, 2000 for using. Two months later, the
child was born on August 7, 2000. The child left the hospital when two days old with the petitioners,
who have been the foster parents ever since.

                The standard of review in termination of parental rights cases is de novo upon the
record, with a presumption of correctness of the findings of fact by the Trial Court. Tenn. Dept. Of
Human Services v. Riley, 689 S.W.2d 164 (Tenn. Ct. App. 1984). The issue to determine is whether
the evidence made out a case of clear and convincing evidence in favor of terminating parental
rights. See, In re Drinnon, 776 S.W.2d 96, 100 (Tenn. Ct. App. 1988). The clear and convincing
evidence standard is something more than a preponderance of the evidence, but less than beyond a
reasonable doubt standard. O’Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995). This
heightened standard of proof is designed to prevent the unwarranted termination or interference with
the biological parents’ right to their children. In re M.W.A., 908 S.W.2d 620, 622 (Tenn. Ct. App.
1998).

                Parents have a fundamental right to the care, custody and control of their children.
Stanley v. Illinois, 405 U.S. 645 (1972). This right is not absolute, and parental rights may be
terminated if the court finds by clear and convincing evidence that (1) grounds exist for termination
as determined under the statute, and (2) it is in the best interests of the child to terminate the parent-
child relationship. Santosky v. Kramer, 455 U.S. 745 (1982); O’Daniel v. Messier.

                After trial, the Trial Court ruled that the birth mother had wilfully given up a second
opportunity to rear her child by violating her parole, thereby exhibiting wanton disregard for the
child’s welfare, as defined in Tenn. Code Ann. § 36-1-102(1)(A)(iv). The Court further found the
child’s grandmother could have assumed care for the child, but had shown little involvement until
the Petition was filed. The Court concluded the child had thrived in the continuity and stability of
the petitioners’ care, and that removing the child from petitioners’ home would be detrimental to the
child’s best interest.

              The grounds for termination of parental rights are set forth in Tenn. Code Ann. §36-1-
113(g). The following are pertinent to this case:

                (g)     initiation of termination of parental or guardianship rights may be based upon
                any of the following grounds:

                (1)    Abandonment by the parent or guardian, as defined in § 36-1-102, has
                occurred;

                ...

                (3)(A) The child has been removed from the home of the parent or guardian by order
                of a court for a period of six (6) months and:

                        (I) The conditions which led to the child’s removal or other conditions which
                        in all reasonable probability would cause the child to be subjected to further


                                                   -2-
                        abuse or neglect and which, therefore, prevent the child’s safe return to the
                        care of the parent(s) or guardian(s), still persist;

                        (ii) There is little likelihood that these conditions will be remedied at an early
                        date so that the child can be safely returned to the parent(s) or guardian(s) in
                        the near future; and

                        (iii) The continuation of the parent or guardian and child relationship greatly
                        diminishes the child’s chances of early integration into a safe, stable and
                        permanent home.

                A termination of rights based upon proof by clear and convincing evidence of any one
of the statutory factors will be affirmed on appeal. In re C.W.W., 37 S.W.3d 456, 473 (Tenn. Ct.
App. 2000).

               The Trial Court found that the mother’s conduct constituted a wanton disregard for
the child’s welfare, which is deemed abandonment for purposes of the foster care statute, and the
termination of parental rights. See, Tenn. Code Ann. § 36-1-102(1)(A)(iv).

                Our courts have consistently held that an incarcerated parent who has multiple drug
offenses and wastes the opportunity to rehabilitate themselves by continuing to abuse drugs, resulting
in revocation of their parole and reincarceration, constitutes abandonment of the child, and
demonstrates a wanton disregard for the welfare of the child. In re C.W.W. , 37 S.W.3d 467, 473
(Tenn. Ct. App. 2000); State v. J.S., et al., 2001 Tenn. App. Lexis 796 (Tenn. Ct. App. 2001);
G.M.C. et al v. A.V.I., 2000 WL 1195686 (Tenn. Ct. App. 2000); State v. D.G.S.L., 2001 Tenn. App.
Lexis 941 (Tenn. Ct. App. 2001); State v. Grant, 2002 Tenn. App. Lexis 158 (Tenn. Ct. App. 2002);
Dept. Of Children’s Serv. V. Wiley, 1999 WL 1068726 at *7 (Tenn. Ct. App. 1999). Cf. In re C.T.S.,
2004 WL 1838441 (Tenn. Ct. App., Aug. 16, 2004); (the Court found the fact that the mother
ingested crack cocaine during pregnancy was conduct that itself established a wanton disregard for
the welfare of the child.)

                In this case the mother had the benefit of numerous treatment programs and
interventions, a home to live in, the support of her mother and brother, employment, parole, a new
boyfriend, and some limited contact with her older daughter. Despite all of these opportunities, she
returned to her old lifestyle. She freely admitted in open court that it would be a lie to say she would
never use again, and she could give no promises. She conceded that if she does relapse, it is not in
the child’s best interest to be with her. Her defense was that she was now dealing with things
“differently”. In parental rights matters, the court does not look to the protestations of affections and
expressed intentions of the parent, but rather the parent’s course of conduct. Koivu v. Irwin, 721
S.W.2d 803 (Tenn. Ct. App. 1986); Fancher v. Mann, 432 S.W.2d 63, 65 (Tenn. Ct. App. 1968).

               The mother’s behavior has severely diminished, if not nullified, her ability to
discharge her proper role as a parent. The record establishes that she used crack cocaine during her


                                                   -3-
pregnancy, and by her own admission there is no guarantee that further rehabilitation will be any
more successful than her past treatment programs. Considering the environment of addiction,
relapse, and overall irresponsibility and disregard for the child’s welfare, the Trial Court properly
found by clear and convincing evidence that the mother’s parental rights should be terminated
pursuant to Tenn. Code Ann. § 36-1-113(g)(3)(A).

                 The final issue is whether termination is in the best interest of the child. A non-
exhaustive list of the factors to be weighed in this determination are set forth in Tenn. Code Ann.
§ 36-1-113(I). A minimum of seven of these factors are directly implicated in this case. Finding that
termination of parental rights is in the best interest of the child has been justified with as few as four
of the criteria set forth. See G.M.C. et al v. A.V.I., 2000 WL 1195686 (Tenn. Ct. App. 2002).

                 Expecting a young child to wait years on incarcerated parents to remedy their
problems is neither reasonable nor in the best interests of the child. In re Shipley, 1997 WL 596281
(Tenn. Ct. App. 1997); State v. T.K., 2002 WL 1115730 (Tenn. Ct. App. 2002). Counsel argues that
the mother’s efforts to get into treatment and the realization of her need describes a loving and caring
mother. However, the evidence is the child has never established a meaningful relationship with the
birth mother or the grandmother. Petitioners have been the child’s parents in reality from birth, and
the child has known no other family. Moreover, stability is important to a child’s well-being.
Contreras v. Ward, 831 S.W.2d 288, 290 (Tenn. Ct. App. 1981). When placing children, there is
a preference to return them to their parents or place them with relatives over permanent placement
through adoption. Tenn. Code. Ann. § 37-2-403 (1993); State Dept. Of Human Serv. V. Smith, 785
S.W.2d 336, 338 (Tenn. 1990). Nevertheless, the best interest of the child remains the paramount
and utmost consideration; it is the polestar, the alpha and omega in the court’s determination. Arnold
v. Arnold, 774 S.W.2d 613, 621 (Tenn. Ct. App. 1989). The grandmother has shown only the barest
interest in the child and offered no concrete plan for rearing the child. The evidence in the record
indicates that the grandmother’s involvement with the grandchild has been minimal at best.
Moreover, the grandmother did not demonstrate that it would be in the child’s best interest to place
the child with the grandmother. The proof establishes that the child has flourished as a part of the
petitioners’ family, and thrives under their care. The evidence is clear and convincing that it is in the
best interest of the child that parental rights be terminated.

                The cost of the appeal is assessed to the defendant, KSR.




                                                         _________________________
                                                         HERSCHEL PICKENS FRANKS, P.J.




                                                   -4-
-5-
