                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                           Assigned on Briefs October 4, 2016

                                          IN RE G.L.

                  Appeal from the Juvenile Court for Greene County
                     No. J26869 Kenneth N. Bailey, Jr., Judge


             No. E2016-00597-COA-R3-PT-FILED-DECEMBER 28, 2016



This is a termination of parental rights case. The Department of Children’s Services filed
a petition to terminate the parental rights of C.L. (Mother)1 to her child, G.L. (the Child).
The trial court found clear and convincing evidence of grounds supporting termination
due to severe child abuse and abandonment by an incarcerated parent. The court also
found, by the same quantum of evidence, that termination is in the best interest of the
Child. Mother appeals. We affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which RICHARD H.
DINKINS and ARNOLD B. GOLDIN, JJ., joined.

Sandy Phillips, Johnson City, Tennessee, for appellant, C.L.

Herbert H. Slatery III, Attorney General and Reporter, and Brian A. Pierce, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.


                                          OPINION




       1
         In the same petition, DCS also sought to terminate the parental rights of R.L. (Father).
The trial court terminated those rights in an order entered March 4, 2016. Father’s case is not
before us on this appeal.
                                            I.

       The Child was born on October 23, 2003. In July 2011, Mother took photographs
of the Child’s genitals and of the Child while she was sleeping and only wearing a tee-
shirt and underwear. Mother sent these photographs to her former boyfriend, M.F., via
text messages upon his request. At the time, Mother knew that M.F. was a registered sex
offender. During the course of their relationship, M.F. frequently discussed with Mother
his sexual interest in the Child.

       After admitting to DCS in April 2014 that she had taken the photographs and sent
them to M.F., law enforcement became involved. Mother signed a statement describing
the photographs, admitting to sending them to M.F., and describing conversations she had
with M.F. about his sexual interests in the Child. On April 25, 2014, the trial court
entered an emergency protective custody order placing the Child in the temporary
custody of DCS.

       On July 16, 2014, a federal grand jury indicted Mother on charges of producing,
distributing, and possessing child pornography. Mother later signed an agreement on
September 11, 2015, pleading guilty to knowingly distributing child pornography. She
remains incarcerated on that charge.

       DCS filed its petition to terminate Mother’s parental rights on April 22, 2015. It
sought termination on two grounds – severe child abuse, pursuant to Tenn. Code Ann. §
36-1-113(g)(4) and abandonment by an incarcerated parent, pursuant to Tenn. Code Ann.
§ 36-1-113(g)(1).

       The case was heard before the trial court on January 26, 2016. Because Mother
was in federal custody at the time of the hearing, she appeared via telephone. The trial
court entered an order finding clear and convincing evidence to terminate Mother’s
parental rights on the grounds of severe child abuse and abandonment by an incarcerated
parent. By the same standard of evidence, the trial court found that termination is in the
Child’s best interest. Mother appeals.

                                           II.

       Mother filed a notice of appeal on March 11, 2016, raising the following issue, as
taken verbatim from her brief:

             Were [Mother’s] due process rights violated by not being able
             to meaningfully participate in the trial telephonically because
             the telephone was inadequate for her to hear?



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                                            III.

       On appeal, Mother argues, as taken verbatim from her brief, that

              [d]ue process requires that the court provide an incarcerated
              parent with meaningful access to the court. By not providing
              sufficient telephonic access, the court deprived [her] of
              meaningful access.

       After reviewing the trial transcripts, as well as the pleadings and exhibits in the
record, we have found no indication that Mother raised due process concerns at the trial.
Mother never raised the issue that she was deprived of meaningful access to the court
during trial. Mother has waived her right to raise this issue on appeal by not raising it
with the trial court. In re Johnny E.K., No. E2009-01634-COA-R3-PT, 2010 WL
550911, at *5 (Tenn. Ct. App., filed Feb. 16, 2010); In re Montana R.T., No. E2011-
00755-COA-R3-PT, 2012 WL 2499498, at *3 (Tenn. Ct. App., filed June 29, 2012).

                                            IV.

        A parent has a fundamental right, based on both the federal and state constitutions,
to the care, custody, and control of his or her child. Stanley v. Ill., 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); Nash-Putnam v. McCloud,
921 S.W.2d 170, 174-75 (Tenn. 1996). While this right is fundamental, it is not absolute.
The State may interfere with a parent’s rights in certain circumstances. In re Angela E.,
303 S.W.3d at 250. Our legislature has listed the grounds upon which termination
proceedings may be brought. Tenn. Code Ann. § 36-1-113(g). Termination proceedings
are statutory, In re Angela E., 303 S.W.3d at 250; Osborn v. Marr, 127 S.W.3d 737, 739
(Tenn. 2004), and a parent’s rights may be terminated only where a statutory basis exists.
Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In the Matter of M.W.A., Jr., 980
S.W.2d 620, 622 (Tenn. Ct. App. 1998).

       To terminate parental rights, a court must determine by clear and convincing
evidence the existence of at least one of the statutory grounds for termination and that
termination is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “Clear and convincing evidence enables
the fact-finder to form a firm belief or conviction regarding the truth of the facts, and
eliminates any serious or substantial doubt about the correctness of these factual
findings.” In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010) (citations omitted).
Unlike the preponderance of the evidence standard, “[e]vidence satisfying the clear and
convincing standard establishes that the truth of the facts asserted is highly probable.” In
re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).

       Once a ground for termination is established by clear and convincing evidence, the

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trial court conducts a best interest analysis. In re Angela E., 303 S.W.3d at 251 (citing
In re Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)). “The best interest[ ] analysis
is separate from and subsequent to the determination that there is clear and convincing
evidence of grounds for termination.” Id. at 254. The existence of a ground for
termination “does not inexorably lead to the conclusion that termination of a parent’s
rights is in the best interest of the child.” In re C.B.W., No. M2005-01817-COA-R3-PT,
2006 WL 1749534, at *6 (Tenn. Ct. App., filed June 26, 2006).

        We are required to review all of the trial court’s findings with respect to grounds
and best interest. In re Carrington, 483 S.W.3d 507, 525-26 (Tenn. 2016) (“[W]e hold
that in an appeal from an order terminating parental rights the Court of Appeals must
review the trial court’s findings as to each ground for termination and as to whether
termination is in the child’s best interest[ ], regardless of whether the parent challenges
these findings on appeal.”) (Emphasis added.)

      The Supreme Court has recently delineated our standard of review:

             An appellate court reviews a trial court’s findings of fact in
             termination proceedings using the standard of review in Tenn.
             R. App. P. 13(d). Under Rule 13(d), appellate courts review
             factual findings de novo on the record and accord these
             findings a presumption of correctness unless the evidence
             preponderates otherwise. In light of the heightened burden of
             proof in termination proceedings, however, the reviewing
             court must make its own determination as to whether the
             facts, either as found by the trial court or as supported by a
             preponderance of the evidence, amount to clear and
             convincing evidence of the elements necessary to terminate
             parental rights. The trial court’s ruling that the evidence
             sufficiently supports termination of parental rights is a
             conclusion of law, which appellate courts review de novo
             with no presumption of correctness. Additionally, all other
             questions of law in parental termination appeals, as in other
             appeals, are reviewed de novo with no presumption of
             correctness.

Id. at 523-24 (internal citations omitted). “When a trial court has seen and heard
witnesses, especially where issues of credibility and weight of oral testimony are
involved, considerable deference must be accorded to . . . the trial court’s factual
findings.” In re Adoption of S.T.D., No. E2007-01240-COA-R3-PT, 2007 WL 3171034,
at *4 (Tenn. Ct. App., filed Oct. 30, 2007) (citing Seals v. England/Corsair Upholstery
Mfg. Co., Inc., 984 S.W.2d 912, 915 (Tenn. 1999)).


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                                           V.

                                           A.

       The trial court held that clear and convincing evidence exists to terminate
Mother’s parental rights based on severe child abuse. Tenn. Code Ann. § 39-1-113(g)(4)
permits the termination of parental rights if the parent has committed severe child abuse
as defined by Tenn. Code Ann. § 37-1-102(b)(22):

             (C) The commission of any acts towards the child prohibited
             by § . . . 39-17-1005 or the knowing failure to protect the
             child from the commission of any such act towards the
             child[.]

The aforesaid Tenn. Code Ann. § 39-17-1005 prohibits and defines especially aggravated
sexual exploitation:

             (a) It is unlawful for a person to knowingly promote, employ,
             use, assist, transport or permit a minor to participate in the
             performance of, or in the production of, acts or material that
             includes the minor engaging in:
             (1) Sexual activity; or
             (2) Simulated sexual activity that is patently offensive.

When analyzing this ground, the trial court found and held, as follows:

             In 2011, [Mother] took photographs of the minor child’s
             vagina and sent them via text message to her then boyfriend,
             [M.F.], a registered sex offender. . . . A few days after
             receiving the initial photographs, . . . [Mother] took a
             photograph of the child wearing a night shirt and underwear.
             She then sent the photograph via text message to [M.F.’s] cell
             phone. On April 1, 2014, [Mother] informed DCS that she
             had taken the aforementioned photographs and the
             Greeneville Police Department subsequently investigated the
             allegations. After law enforcement . . . obtained her signed
             statement admitting to taking the photographs and sending
             them to [M.F.], [law enforcement] . . . was able to locate
             pictures on [Mother’s] computer that depicted the minor child
             wearing a bra, images of the minor child sitting on [M.F.’s]
             lap while neither appear to be wearing a shirt, a picture of the
             child in bed naked, and photographs of the child’s vagina.
             [Mother] was aware that [M.F.] was a sex offender . . . [and]

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              has also admitted that she was aware of the sexually explicit
              nature and character of the photos at the time she sent them to
              [M.F.]. In September 2015, [Mother] pled guilty to one count
              of knowingly distributing child pornography[.]

Based on the above factual findings, the trial court held that Mother’s actions constitute
especially aggravated sexual exploitation of a minor and clear and convincing evidence
of the ground of severe child abuse. Our review of the record demonstrates that the
evidence does not preponderate against the trial court’s factual findings. In the present
action, Mother took photographs of the Child’s genitals and sent them to a known sex
offender. She sent them to someone who had discussed with Mother his sexual interest in
the Child. Mother admitted to taking these photographs, and she admitted that the
photographs were sexually explicit in nature. She pleaded guilty to federal charges for
knowingly distributing child pornography. Her actions constitute especially aggravated
sexual exploitation of a minor and severe child abuse. We hold, as a matter of law, that
there was clear and convincing evidence that Mother committed severe child abuse.

                                               B.

     Tenn. Code Ann. § 36-1-113(g)(1) authorizes the termination of parental rights
when abandonment occurs as defined by Tenn. Code Ann. § 36-1-102(1)(A).
Abandonment by an incarcerated parent occurs when:

              (iv) 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 . . .
              has engaged in conduct prior to incarceration that exhibits a
              wanton disregard for the welfare of the child.

As it relates to this ground, the trial court found:

              [Mother] has been incarcerated all of the four (4) months
              immediately preceding the filing [of DCS’s petition] on April
              22, 2015. . . . The fact that [M.F.] was a sex offender should
              have been [Mother’s] clue that she needed to not be around
              him and that she should absolutely not expose her child to
              him. . . . Mother and [M.F.] engaged in conversations in
              which [he] expressed his sexual interest in the child. . . .
              [Mother] testified that she would let the things [M.F.] said to
              her regarding his sexual interest in the child go in one ear and
              out the other.

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Based on these factual findings, the trial court held that there was clear and convincing
evidence for the ground of abandonment by wanton disregard against Mother.

       Our review of the record demonstrates that the evidence does not preponderate
against the trial court’s factual findings. In the present action, Mother was indicted on
July 16, 2014 for charges of producing, distributing, and possessing child pornography.
DCS filed its petition to terminate Mother’s rights on April 22, 2015. At that time,
Mother was incarcerated on the charges against her in federal court. Because Mother was
incarcerated when the termination proceedings were initiated, the definitions for
abandonment under Tenn. Code Ann. § 36-1-102(1)(A)(iv) apply.

       It is clear that Mother engaged in conduct that exhibits a wanton disregard for the
welfare of the Child prior to incarceration. Mother’s actions placed the child in danger.
By taking explicit photographs of the Child and sending them to a known sex offender,
Mother placed the child in danger. Despite M.F. expressing his sexual interest in the
Child, Mother exposed the Child to him and placed the Child in danger. This conduct
exhibits a wanton disregard for the Child’s welfare. We hold, as a matter of law, that
there is clear and convincing evidence of Mother’s wanton disregard for the Child’s
welfare prior to incarceration.

                                            VI.

       After finding that there are statutory grounds warranting termination of Mother’s
parental rights, we now focus on whether termination is in the Child’s best interest.
When considering the issue of “best interest,” we are guided by the following statutory
factors set forth in Tenn. Code Ann. § 36-1-113(i):

             In determining whether termination of parental or
             guardianship rights is in the best interest of the child pursuant
             to this part, 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 interests 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

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              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,
              controlled substances or controlled substance analogues 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 § 36-5-101.

“The above list is not exhaustive[,] and there is no requirement that all of the factors must
be present before a trial court can determine that termination of parental rights is in a
child’s best interest.” State Dep’t of Children’s Servs. v. B.J.N., 242 S.W.3d 491, 502
(Tenn. Ct. App. 2007) (citing State Dep’t of Children’s Servs. v. P.M.T., No. E2006-
00057-COA-R3-PT, 2006 WL 2644373, at *9 (Tenn. Ct. App., filed Sept. 15, 2006)). In
addition, “[t]he child’s best interest must be viewed from the child’s, rather than the
parent’s, perspective.” In re Marr, 194 S.W.3d 490, 499 (Tenn. Ct. App. 2005) (citing
White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004)).

       In the present action, the trial court found, by clear and convincing evidence, that
termination of Mother’s parental rights was in the best interest of the Child. The court
found:


                                              8
              It is in the child’s best interest for termination to be granted as
              to [Mother] because she has not made changes in her conduct
              or circumstances that would make it safe for the child to
              return home or to allow her to safely and adequately parent
              the child in the future. . . . [Mother] will be serving a
              sentence in federal custody and as such, reunification would
              not be appropriate and would not be accomplished in a timely
              manner. . . . [Mother’s] home is not appropriate because of
              her previous behavior and what she has exposed the child to. .
              . . [C]hanging caregivers at this stage of the child’s life would
              have a detrimental effect on her. . . . [Mother] has severely
              abused the child[,] . . . [and] there is crime in her home. . . .
              [Mother] has shown little or no interest in the welfare of the
              child[, and] the child has established a strong bond with her
              foster parents, who wish to adopt her.

The evidence does not preponderate against the trial court’s factual findings as it relates
to the Child’s best interest.

       We are persuaded that termination of Mother’s parental rights is in the Child’s
best interest. Mother exposed the Child to a known sex offender over a period of years,
and she made no adjustment upon learning of M.F.’s status so as to make her home safe.
The Child was removed from Mother’s custody in April 2014, and since then, the Child
had developed a relationship with her foster parents since being placed with them in
October 2014. Removing the Child from her foster parents’ care would have a negative
effect on the Child’s emotional condition. Mother’s home is not healthy and safe for the
Child because Mother is in federal custody on criminal charges due to criminal activity in
the home. Mother will not be able to provide a stable home for the Child.

       With all of these facts in mind, we conclude, as a matter of law, that there is clear
and convincing evidence that termination of Mother’s parental rights is in the Child’s
best interest.

                                             VII.

       The judgment of the trial court is affirmed. The costs on appeal are assessed to
the appellant, C.L. This case is remanded for enforcement of the trial court’s judgment
and for collection of costs assessed by the trial court.



                                                     _______________________________
                                                     CHARLES D. SUSANO, JR., JUDGE

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