                                                                                         11/12/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                            AT JACKSON
                        Assigned on Briefs September 4, 2019

                                   IN RE B.A. ET AL.

                Appeal from the Chancery Court for McNairy County
                 No. A-295         Martha B. Brasfield, Chancellor
                      ___________________________________

                           No. W2019-00129-COA-R3-PT
                       ___________________________________

Father appeals the termination of his parental rights to two children, B.A. and K.A. The
trial court considered six grounds for termination: (1) persistent conditions, pursuant to
Tenn. Code Ann. § 36-1-113(g)(3)(A); (2) severe child abuse, pursuant to Tenn. Code
Ann. § 36-1-113(g)(4); (3) sentencing to more than two years for conduct against a child,
pursuant to Tenn. Code Ann. § 36-1-113(g)(5); (4) sentencing to ten years or more and
child under eight years of age, pursuant to Tenn. Code Ann. § 36-1-113(g)(6); (5) non-
compliance with a permanency plan, pursuant to Tenn. Code Ann. § 36-1-113(g)(2); and
(6) abandonment, pursuant to Tenn. Code Ann. § 36-1-113(g)(1). The court did not find
sufficient evidence to support termination of father’s parental rights for abandonment.
The court found clear and convincing evidence on the other five grounds. By the same
quantum of proof, the court also found that termination is in the children’s best interest.
Father appeals. We affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which ANDY D.
BENNETT and CARMA DENNIS MCGEE, JJ., joined.

Jamie L. Lowrance, Selmer, Tennessee, for the appellant, J.A.

Joe L. Brown, Savannah, Tennessee, for the appellees, T.M. and F.M.

Melissa G. Stewart, Savannah, Tennessee, Guardian ad Litem for B.A. and K.A.

No appearance by or on behalf of mother, L.P.




                                            -1-
                                               OPINION

                                                     I.

       J.A. is the biological father of the two children, B.A. and K.A. L.P. is the
children’s mother. F.M. is the children’s maternal aunt; she is married to T.M. On
October 16, 2014, Hardin County Juvenile Court granted F.M. legal and physical custody
of B.A.; she and her husband have retained custody of B.A. since the entry of that order.
On March 3, 2015, the court held that K.A. was dependent and neglected, and granted
F.M. legal and physical custody of K.A.; she and her husband have retained custody of
K.A. since the entry of that order.

        On April 21, 2015, B.A. was held to be a drug exposed child. Specifically, the
court held that father was positive on a nail follicle drug test for amphetamine,
methamphetamine, cocaine, and opiates. The court also found that B.A. was positive for
cocaine and its metabolites on a hair follicle drug screen. Accordingly, the court held
that, as to B.A., mother and father had committed severe child abuse. The trial court set
child support for each parent in the amount of $430.00 per month, effective May 1, 2015.
The court further set forth a list of requirements for the parents to complete prior to
receiving additional visitation or custody.

       On August 15, 2017, T.M. and F.M. filed a petition to terminate mother and
father’s parental rights. On October 16, 2017, the court appointed a guardian ad litem. On
April 24, 2018, T.M. and F.M. filed an amended petition. On June 25, 2018, the court
entered a default judgment terminating mother’s parental rights;1 T.M. and F.M. were
granted partial guardianship and legal custody of B.A. and K.A.

       On December 7, 2018, father filed his answer. On December 10, 2018, a hearing
was held on the petition. In the resulting order terminating father’s parental rights, the
court held that the petitioners had proven by clear and convincing evidence five grounds
for termination:

                (a) Child removed from the home for 6 months and
                conditions persist § 36-1-113(g)(3)(A). [J.A.] testified that he
                had been on drugs since he was 12 years old and his drug use
                occurred before the children were born and continued after
                they were born.

                (b) Severe child abuse or failure to protect any child § 36-1-
                113(g)(4). A certified copy of the Juvenile Court of Hardin


      1
          Mother did not appeal the termination of her parental rights.

                                                    -2-
              County Tennessee in Docket Number 14-JV-1544 was
              admitted into evidence as exhibit #2 showing that [J.A.]
              tested positive for amphetamine, methamphetamine, cocaine
              and opiates. The Court found that the child, [B.A.], was
              positive for cocaine/metabolites on a hair follicle drug test
              and was subjected to severe abuse by both her parents.

              (c) Sentenced to more than two (2) years for conduct against a
              child § 36-1-113(g)(5); [J.A.] testified that as a result of
              severe abuse as to [B.A.] he received and pled to a sentence
              of 8 years to serve one (1) year in either jail or rehab and the
              remainder on probation.

              (d) Sentenced to ten (10) years or more and child under eight
              (8) years of age § 36-1-113(g)(6); [J.A.] testified that he was
              found guilty in Hardin County Tennessee of possessing a
              firearm while committing a dangerous felony and was
              sentence to serve 15 years while his children were under the
              age of eight (8) years old.

              (e) Non-Compliance with permanency Plan § 36-1-113(g)(2).
              Steps were given [J.A.] in the Juvenile Court of Hardin
              County in both Dockets Number 2014-JV-1544 and 2015-JV-
              1575 to file a motion to increase visitation/change custody
              upon completion and [J.A.] failed to complete any steps laid
              out in those orders.

        The court then considered the best interest factors enumerated in Tenn. Code Ann.
§ 36-1-113(i) in order to determine whether termination of father’s parental rights is in
the children’s best interest. The court stated that father has a long history of drug abuse,
and has been unsuccessful at rehabilitation. He has never had custody of K.A. and has
little contact with B.A.; he failed to complete the steps set out by the court to increase
visitation or obtain custody. The court held that, because the children had been living
with T.M. and F.M. continuously since on or before April 21, 2015, it would be
detrimental to the children to change custody. The court held that father had been
sentenced to a lengthy jail term, and that his incarceration renders him unable to regularly
visit or support the children. The court further stated that father had been found guilty of
severe child abuse, as to B.A., and that it was held to be sufficient to constitute severe
abuse against K.A., pursuant to Tenn. Code Ann. § 36-1-113(g)(4). Accordingly, the
court concluded that termination of father’s parental rights is in the children’s best
interest. Father appeals.



                                            -3-
                                             II.

        Father asks this Court to consider whether the trial court erred by finding clear and
convincing evidence that it was in the children’s best interest to terminate his parental
rights.

                                            III.

       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)(2018). 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
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

                                             -4-
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.”)

        The Supreme Court has stated 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)).

                                            IV.

                                            A.

        Tenn. Code Ann. § 36-1-113(g)(3)(A) authorizes the termination of parental rights
when:

              [t]he child has been removed from the home or the physical
              or legal custody of a parent or guardian for a period of six (6)
              months by a court order entered at any stage of proceedings in


                                            -5-
              which a petition has been filed in the juvenile court alleging
              that a child is a dependent and neglected child, and:

                     (i) The conditions that led to the child's removal
                     still persist, preventing the child's safe return to
                     the care of the parent or guardian, or other
                     conditions exist that, in all reasonable
                     probability, would cause the child to be
                     subjected to further abuse or neglect, preventing
                     the child's safe return to the care of the parent or
                     guardian;

                     (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 or guardian 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

Tenn. Code Ann. § 36-1-113(g)(3)(A). Father testified at the termination hearing that he
had been on drugs since he was twelve years old. The court stated that attempts at
rehabilitation have been unsuccessful. Father’s drug use occurred before the children
were born, led to their removal, and has continued uninterrupted thereafter. Therefore, the
conditions that led to the children’s removal persist. We affirm the termination of father’s
parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(3)(A).

                                             B.

        Tenn. Code Ann. § 36-1-113(g)(4) authorizes the termination of parental rights
when:

              [t]he parent or guardian has been found to have committed
              severe child abuse, as defined in § 37-1-102, under any prior
              order of a court or is found by the court hearing the petition to
              terminate parental rights or the petition for adoption to have
              committed severe child abuse against any child

At the termination hearing, an exhibit was entered evincing that father had previously
tested positive on a nail follicle drug test for amphetamine, methamphetamine, cocaine,
and opiates; at the same time, B.A. tested positive for cocaine/metabolites on a hair

                                             -6-
follicle drug test. On May 22, 2015, the court held that father committed severe child
abuse, because he either knowingly exposed B.A. to cocaine, or because of deliberate
ignorance or reckless disregard for the child’s safety, failed to protect her from exposure
to cocaine. Therefore, we hold that the trial court did not err in holding that clear and
convincing evidence exists to terminate father’s parental rights pursuant to Tenn. Code
Ann. § 36-1-113(g)(4).

       Correspondingly, Tenn. Code Ann. § 36-1-113(g)(5) authorizes the termination of
parental rights when:

              [t]he parent or guardian has been sentenced to more than two
              (2) years’ imprisonment for conduct against the child who is
              the subject of the petition, or for conduct against any sibling
              or half-sibling of the child or any other child residing
              temporarily or permanently in the home of such parent or
              guardian, that has been found under any prior order of a court
              or that is found by the court hearing the petition to be severe
              child abuse, as defined in § 37-1-102. Unless otherwise
              stated, for purposes of this subdivision (g)(5), “sentenced”
              shall not be construed to mean that the parent or guardian
              must have actually served more than two (2) years in
              confinement, but shall only be construed to mean that the
              court had imposed a sentence of two (2) or more years upon
              the parent or guardian

The trial court stated father testified that, as a result of the severe abuse of B.A., he
received a jail sentence of eight years. He is to serve one year in either jail or rehab and
the remainder on probation. We hold that the trial court did not err in holding that clear
and convincing evidence exists to terminate father’s parental rights, pursuant to Tenn.
Code Ann. § 36-1-113(g)(5).

                                            C.

        Tenn. Code Ann. § 36-1-113(g)(6) authorizes the termination of parental rights
when:

              [t]he parent has been confined in a correctional or detention
              facility of any type, by order of the court as a result of a
              criminal act, under a sentence of ten (10) or more years, and
              the child is under eight (8) years of age at the time the
              sentence is entered by the court



                                            -7-
Tenn. Code Ann. § 36-1-113(g)(6). At the termination hearing, father testified that he
was found guilty of possessing a firearm while committing a dangerous felony, and
sentenced to serve fifteen years when the two children were under eight years old.
Therefore, we affirm the termination of father’s parental rights pursuant to Tenn. Code
Ann. § 36-1-113(g)(6).

                                             D.

       Lastly, Tenn. Code Ann. § 36-1-113(g)(2) authorizes the termination of parental
rights when there has been substantial noncompliance by the parent or guardian with the
statement of responsibilities in a permanency plan. The trial court held that father, when
given the opportunity, failed to complete any steps laid out in the court’s prior orders in
order to increase visitation or seek a change of custody. The evidence does not
preponderate against this finding. Therefore, we affirm the termination of father’s
parental rights pursuant to Tenn. Code Ann. § 36-1-113(g)(2).

                                             V.

       The trial court held that termination of father’s parental rights is in the children’s
best interest. Father argues on appeal that

              [i]n this matter, the court found by clear and convincing
              evidence that there were multiple grounds for which the
              father’s parental rights could be terminated. However, the
              factors found by the court that it would be in the minor
              children’s best interests for the father’s parental rights to be
              terminated do not meet the standard of clear and convincing
              evidence given the facts of this matter. It is without dispute
              that the father is serving a prison sentence of at least ten (10)
              years and is thus unable to have custody of the minor
              children. The minor children in this matter will be teenagers
              by the time the father is eligible for release. The current
              custodians,[T.M. and F.M.], will be in their late sixties or
              seventies. Termination of the father’s parental rights will have
              the sole effect of preventing him, or his family, from ever
              being involved in their life.


                                      *      *       *


              The factors required before the father would be able to have
              visitation /custody of the minor children ensure that their best

                                             -8-
              interests would be met after the father finishes his sentence.
              Either the father would complete these requirements and thus
              be suitable to be involved in the lives of the children, or he
              would not, and they would be in the same position they are
              now.

              Additionally, the minor children would have the protection of
              the factors to be considered in Tenn. Code Ann. § 36-1-113.
              Admittedly, many of these factors would preponderate
              against the father no matter what he does when he is released.
              Despite the factors required for termination being present,
              when considering the totality of the circumstances, the weight
              of the evidence does not reach the standard of clear and
              convincing proof that termination is in the best interests of the
              minor children.

       In parental termination matters, the focus of the best interest analysis is on what is
best for the child, not what is best for the parent. In re Christopher J., 2017 WL
5992359, at *4–5 (Tenn. Ct. App. Dec. 4, 2017). The analysis should take into account
“the impact on the child of a decision that has the legal effect of reducing the parent to
the role of a complete stranger.” In re C.B.W., 2006 WL 1749534, at *6 (Tenn. Ct. App.
June 26, 2006). As the Supreme Court explained,

              [a]scertaining a child’s best interests involves more than a
              “rote examination” of the statutory factors. And
              the best interests analysis consists of more than tallying the
              number of statutory factors weighing in favor of or against
              termination. Rather, the facts and circumstances of each
              unique case dictate how weighty and relevant each statutory
              factor is in the context of the case. Simply put,
              the best interests analysis is and must remain a factually
              intensive     undertaking,     so    as    to     ensure     that
              every parent receives individualized consideration before
              fundamental parental rights are terminated. Depending upon
              the circumstances of a particular child and a particular parent,
              the consideration of one factor may very well dictate the
              outcome of the analysis. But this does not mean that a court
              is relieved of the obligation of considering all the factors and
              all the proof. Even if the circumstances of a particular case
              ultimately result in the court ascribing more weight—even
              outcome determinative weight—to a particular statutory
              factor, the court must consider all of the statutory factors, as
              well as any other relevant proof any party offers.

                                             -9-
In re Gabriella D., 531 S.W.3d 662 (Tenn. 2017) (Internal citations and quotations
omitted).

       As outlined infra, the trial court held that father failed to make a lasting
adjustment to his circumstances. He has a long history of drug use, and has not
successfully been rehabilitated. He has engaged in criminal activity, which has resulted in
a lengthy period of incarceration. His current incarceration renders him unable to
consistently visit or provide support for the children. Furthermore, the trial court held that
father committed severe child abuse. The evidence does not preponderate against these
findings. We hold that the combined weight of the facts amounts to clear and convincing
evidence that termination of father’s parental rights is in the children’s best interest.

                                             VI.

       The judgment of the trial court is affirmed. Costs on appeal are taxed to the
appellant, J.A. Case remanded for enforcement of the trial court’s judgment and
collection of costs assessed below.



                                                     _______________________________
                                                     CHARLES D. SUSANO, JR., JUDGE




                                            -10-
