                   IN THE COURT OF APPEALS OF TENNESSEE
                               AT NASHVILLE
                                Assigned on Briefs June 8, 2012

                                   IN RE WILLIAM S. ET AL.

                    Appeal from the Juvenile Court for Davidson County
                      No. 20103208     Betty K. Adams Green, Judge


                     No. M2011-02602-COA-R3-PT - Filed July 20, 2012


Father appeals the termination of his parental rights. The trial court found multiple grounds
for termination of his rights and that termination was in the best interest of the two children.
Father appealed. Because he did not appeal the ground of wanton disregard for the welfare
of the children, we find it unnecessary to discuss the other grounds at length. We do find,
however, that there is clear and convincing evidence supporting a finding that additional
grounds exist. We further find that termination of Father’s parental rights is in the best
interest of the children. Consequently, we affirm the trial court.

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

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which F RANK G. C LEMENT, J R.
and R ICHARD H. D INKINS, JJ., joined.

Clayton Michael Cardwell, Nashville, Tennessee, for the appellant, Kevin Dean S.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
and Douglas Earl Dimond and Marcie Eubanks Greene, Assistant Attorneys General; for the
appellee, State of Tennessee, Department of Children’s Services.

Susie Piper McGowan, Nunnelly, Tennessee, Guardian Ad Litem.

                                             OPINION

       Kevin S. (“Father”) and Stacy S. (“Mother”) are the parents of William S. and Levi
S. This matter1 began when the parents were arrested at a Waffle House on July 5, 2010, for


       1
           William had been removed from the home once before. He was returned to the custody of his
                                                                                       (continued...)
drug possession, possession of drug paraphernalia, two counts of child neglect/endangerment
and theft under $500.00. The next day, the Department of Children’s Services (“DCS”)
received a referral concerning the children’s exposure to drugs. The children were removed
July 8, 2010, and adjudicated dependent and neglected on November 9, 2010. The initial
permanency plan was developed in a meeting with the family on August 13, 2010. The
plan’s goal was reunification and required Father to undergo a parenting assessment with a
mental health component, remain drug free, visit the children, obtain stable housing, obtain
a stable income and pay child support. The magistrate added the goal of adoption to the plan
at the ratification hearing because the parents were not maintaining contact with DCS, not
visiting the children and not informing DCS of their whereabouts. He also added an alcohol
and drug assessment requirement.

        On November 9, 2010, the magistrate found William and Levi to be dependent and
neglected. The magistrate specifically wrote in the order that the court went over Father’s
rights and obligations under the permanency plan and the criteria for termination of parental
rights. Father appealed to the juvenile court judge. Soon thereafter, Father was involved in
an automobile accident. He was charged with DUI. The next day, November 24, 2010, the
guardian ad litem for the children filed a petition to terminate the parents’ parental rights.
The petition alleged abandonment by failure to visit and failure to pay support, exposure to
or failure to protect from abuse or neglect likely to cause bodily harm or death, wanton
disregard, and substantial non-compliance with the permanency plan.

       Father was incarcerated in January 2011.2 The permanency plan was revised February
25, 2011. On that date, Father, who had been released from jail, signed and received a copy
of the Criteria and Procedures for Termination of Parental Rights. Father’s appeal of the
magistrate’s dependency and neglect finding was heard March 22, 2011, and the juvenile
court judge also found the children dependent and neglected due to their parents’ long-term
use of drugs and alcohol. In April, Father pleaded guilty to two counts of child neglect and
endangerment, theft of property of $500 or less, and possession of a Schedule IV drug. He
was sentenced to 180 days in jail followed by two years of probation. In May, DCS filed an
intervening petition to terminate Father’s and Mother’s parental rights, alleging abandonment
by incarceration/wanton disregard, substantial non-compliance with the permanency plan and
persistence of conditions. Mother surrendered her rights. Father went to trial.




        1
         (...continued)
parents July 24, 2009.
        2
            This was not the first time Father had served as an involuntary guest of the penal system.

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       A trial on both petitions was held September 21, 2011. In an order entered on
November 2, 2011, the juvenile court judge found clear and convincing evidence of the
following grounds for termination of Father’s parental rights: abandonment by
incarceration/wanton disregard, abandonment by failure to visit, substantial non-compliance
with the permanency plan and persistence of conditions. She also found that it was in the
children’s best interest to terminate Father’s parental rights. Father appealed.

                                     Standard of Review

        A parent has a fundamental right to the care, custody, and control of his or her child.
Stanley v. Illinois, 405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170,
174 (Tenn. 1996). Consequently, the state may interfere with parental rights only if there is
a compelling state interest. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer,
455 U.S. 745 (1982)). The termination of a person’s parental rights “has the legal effect of
reducing the parent to the role of a complete stranger.” In re W.B., IV, No. M2004-00999-
COA-R3-PT, 2005 WL 1021618, at *6 (Tenn. Ct. App. Apr. 29, 2005). Pursuant to Tenn.
Code Ann. § 36-1-113(l)(1), “[a]n order terminating parental rights shall have the effect of
severing forever all legal rights and obligations of the parent or guardian of the child against
whom the order of termination is entered and of the child who is the subject of the petition
to that parent or guardian.”

       Tennessee’s termination statutes identify “those situations in which the state’s interest
in the welfare of a child justifies interference with a parent’s constitutional rights by setting
forth grounds on which termination proceedings can be brought.” In re W.B., 2005 WL
1021618, at *7 (citing Tenn. Code Ann. § 36-1-113(g)). To support the termination of
parental rights, petitioners must prove both the existence of 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). A trial court is only required to
find one statutory ground in order to terminate parental rights. In re D.L.B., 118 S.W.3d
360, 367 (Tenn. 2003).

        Because of the fundamental nature of the parent’s rights and the grave consequences
of the termination of those rights, courts must require a higher standard of proof in deciding
termination cases. Santosky, 455 U.S. at 769; In re M.W.A., Jr., 980 S.W.2d 620, 622 (Tenn.
Ct. App. 1998). Thus, both the grounds for termination and the best interest inquiry must be
established by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c); In re
Valentine, 79 S.W.3d at 546. Clear and convincing evidence “establishes that the truth of
the facts asserted is highly probable, and eliminates any serious or substantial doubt about
the correctness of the conclusions drawn from the evidence.” In re M.J.B., 140 S.W.3d 643,
653 (Tenn. Ct. App. 2004) (citations omitted). Such evidence “produces in a fact-finder’s

                                               -3-
mind a firm belief or conviction regarding the truth of the facts sought to be established.”
Id.

        In light of the heightened standard of proof in these cases, a reviewing court must
adapt the customary standard of review set forth by Tenn. R. App. P. 13(d). Id. at 654. As
to the trial court’s findings of fact, our review is de novo with a presumption of correctness
unless the evidence preponderates otherwise, in accordance with Tenn. R. App. P. 13(d). Id.
We must then determine whether the facts, as found by the trial court or as supported by the
preponderance of the evidence, clearly and convincingly establish the elements necessary to
terminate parental rights. Id.

                                                   Analysis

       Father argues that the trial court erred in finding that DCS made reasonable efforts to
reunify Father and his children. Grounds for termination of parental rights must be
established by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c)(1). One of
the requirements for termination, with certain exceptions not applicable here,3 is that DCS
make reasonable efforts to reunify the family. Tenn. Code Ann. § 37-1-166(a)(2). DCS has
the burden of proving reasonable efforts. As part of its proof, DCS is required to file an
affidavit with the court addressing several matters, including the services that “have been
provided to assist the family and the child so as to prevent removal or to reunify the family,”
and the specific reasons, if any, “why services could not have been provided.” Tenn. Code
Ann. § 37-1-166(c)(3) & (4). A search of the record does not unearth a DCS affidavit of
reasonable efforts. While disappointing,4 the absence of the affidavit is not fatal to DCS’s
case, as long as DCS provides the court with specific evidence of its reasonable efforts. In
re C. M. C., No. M2003-01122-COA-R3-PT, 2004 WL 438326 at *8 (Tenn. Ct. App. Mar.
9, 2004).



        3
          It appears that one exception to the reasonable efforts requirement may apply, but the record is not
fully developed. Tenn. Code Ann. § 37-1-166(g)(4)(C) excuses reasonable efforts “if a court of competent
jurisdiction has determined that . . . [t]he parental rights of the parent to a sibling or half-sibling have been
terminated involuntarily.” Father’s sister testified that she had filed a successful petition to terminate
Father’s parental rights to his two older children by another wife. The testimony does not show that the
matter was final since Father’s motion for reconsideration was denied only the day before the September 21,
2011 trial. Father indicated that he would appeal that termination and the record before this court has not
been supplemented.
        4
         These affidavits are very helpful to the courts in reaching independent conclusions as to the
sufficiency of the department’s efforts. See In re C. M. C., No. M2003-01122-COA-R3-PT, 2004 WL
438326, *8 (Tenn. Ct. App. Mar. 9, 2004). Statutory commands such as Tenn. Code Ann. § 37-1-166(c) are
ignored at the Department’s peril.

                                                      -4-
       Testimony shows that DCS took many actions to try to assist the family beginning
after William’s first removal from Father.5 DCS attempted to set up an alcohol and drug
assessment; secured funding for an alcohol and drug assessment, a parenting assessment and
a mental health assessment; provided therapeutic visitation and supervised visits; provided
some parenting classes and parenting education; set up utility payment assistance; and, found
housing when Father moved to another state. DCS even replaced two caseworkers at Father’s
request because he felt that they were being too hard on him.

        The trial court also found that Father “did not avail himself of the services offered.
He refused to undergo the mental health and parenting assessment and did not stay in contact
with DCS. More importantly, by his own admission, he did not participate in the A/D
assessment to address his long-standing drug issues.” Father’s actions hindered DCS’s
ability to assist. The parent has to make efforts to change the behavior or circumstances that
led to removal of the child. DCS cannot, and should not, bear the sole burden of
reunification of the family. The road to family reunification is a two-way street. In re
Randall B., Jr., No. M2006-00055-COA-R3-PT, 2006 WL 2792158, at *6 (Tenn. Ct. App.
Sept. 28, 2006).

      Clear and convincing evidence supports the trial court’s finding that DCS made
reasonable efforts to provide assistance to Father.

       Father challenges the trial court’s findings of clear and convincing evidence of
persistence of conditions and abandonment by failure to visit. Significantly, Father has not
challenged the trial court’s finding that he had abandoned the children by engaging “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). Thus, he has waived that issue. Newcomb v. Kohler
Co., 222 S.W.3d 368, 400 (Tenn. Ct. App. 2006). Nevertheless, we will briefly address the
issue.

       A ground for termination of parental rights is abandonment as defined in Tenn. Code
Ann. § 36-1-102. Tenn. Code Ann. § 36-1-113(g)(1). Tenn. Code Ann. § 36-1-102(1)(A)
contains several definitions of abandonment, including:

       (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 either
       has willfully failed to visit or has willfully failed to support or has willfully

       5
           See infra footnote 1.

                                              -5-
       failed to make reasonable payments toward the support of the child for four (4)
       consecutive months immediately preceding such parent’s or guardian’s
       incarceration, or the parent or guardian has engaged in conduct prior to
       incarceration that exhibits a wanton disregard for the welfare of the child
       ....

The statute referencing actions constituting wanton disregard is not limited by the four-month
requirement at the beginning of the section. In re Audrey S., 182 S.W.3d 838, 871 (Tenn. Ct.
App. 2005). The language of the “wanton disregard” provision does, however, require
incarceration “at or near the time of the filing of the termination petition.” Id. at 865. This
requirement is met because Father was jailed in January and April 2011, and the DCS
petition was filed in May, 2011. “We have 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. The record
contains evidence of several incarcerations, a probation violation, theft, DUI, criminal child
neglect and endangerment, and drug abuse. Father’s being under the influence of alcohol or
drugs resulted in his arrest at the Waffle House, which led to the removal of the children.
We agree with the trial court’s conclusion that there is clear and convincing evidence that
Father engaged in conduct exhibiting a wanton disregard for the children’s welfare.

        Only one ground for termination of parental rights need be found by clear and
convincing evidence before the court can move on to the best interest analysis. In re C.W.W.,
37 S.W.3d 467, 475 (Tenn. Ct. App. 2000). Given the clear and convincing evidence of
wanton disregard and the fact that Father did not appeal the wanton disregard finding, we see
no need in prolonging this portion of the opinion with an analysis of other grounds found by
the trial court and appealed by Father. We note, however, that having reviewed the record
there is clear and convincing evidence to support the finding that these additional grounds
exist.

        Once grounds for termination are found, we must examine whether it is in the best
interest of the children to sever the parent-child relationship. Tenn. Code Ann. § 36-1-113(i)
contains nine well-known, non-exclusive statutory factors for courts to consider when
conducting the best interest analysis. Father pled guilty to two counts of felony child neglect
of William and Levi. His post-removal cooperation with DCS has been spotty at best and
his visitation with the children has been inconsistent. While we could continue with a list
of reasons going on several pages, it is sufficient to say that we find that the children’s best
interest is served by the termination of Father’s parental rights.




                                              -6-
      The decision of the trial court is affirmed. Costs of appeal are assessed against Father,
for which execution may issue if necessary.

                                                       ______________________________
                                                            ANDY D. BENNETT, JUDGE




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