                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                Assigned on Briefs July 31, 2013

              IN THE MATTER OF LAKITA E. P. AND MICHAEL A. P.1

                       Appeal from the Juvenile Court for Clay County
                           No. J307812     Jimmy White, Judge


                   No. M2013-00384-COA-R3-PT - Filed August 28, 2013


A father’s parental rights to his two children were terminated on the grounds of abandonment
by engaging in conduct exhibiting a wanton disregard for the welfare of the children, non-
compliance with the permanency plan, and severe child abuse against children who resided
with Father. He appeals, contending that the Department of Children’s Services failed to
expend reasonable efforts to reunite him with the children and that termination of his rights
was not in the children’s best interest. Finding no error, we affirm the judgment of the trial
court.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R., J., joined. P ATRICIA J. C OTTRELL, P. J., M. S., not participating.

Joshua Vernon Hoeppner, Livingston, Tennessee, for the appellant, Michael A. P., Sr.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie Curry, Assistant Attorney
General, for the Tennessee Department of Children’s Services.

                                               OPINION

H ISTORY OF THE C ASE

       Michael A. P., Sr. (“Father”) and Erica D. P. H. (“Mother”) are the parents of two
children, Lakita E. P., born December 29, 2000, and Michael A. P., Jr., born January 31,
2003. The Tennessee Department of Children’s Services (“DCS”) filed a petition in the Clay
County Juvenile Court to have the children dependent and neglected and for temporary legal



        1
            This Court has a policy of protecting the identity of children in parental termination cases by
initializing the last names of the parties.
custody on September 7, 2011.2 The Clay County petition alleged that beginning on June 24,
2011, DCS had been investigating a referral regarding Mother, alleging lack of supervision
and drug exposed children; that Mother had been incarcerated since June 29 and pled guilty
to a drug offense for which she had been sentenced to serve four years; that the children were
in the custody of an acquaintance of Mother, but that the family with whom the children were
residing were not able to care for them; and that the children had been in foster care since
August 31, 2011. The court entered a Protective Custody Order on September 7; a hearing
was held October 11, at which both parents were present, after which the court entered an
order declaring the children to be dependent and neglected, granting continued custody to
DCS, and setting a review hearing for December 13. At the review hearing a permanency
plan which had been prepared on October 14 was approved by the court. A separate review
hearing order was also entered reciting, inter alia, that Father remained incarcerated at the
Nashville Detention Center completing his sentence for rape of a child and that, because of
their incarcerations, DCS was unable to provide services to Mother and Father; the order set
the next hearing for September 11, 2012.

        An order was entered on November 14, 2012, following the September 11 hearing to
consider the permanency plan which had been revised on May 1, 2012. Pertinent to the
issues in this appeal, the order determined: that DCS was in substantial compliance with the
requirements of the previous permanency plan; that Mother surrendered her parental rights
to the children on June 7, 20123 ; that Father was not in substantial compliance “in that he is
now out of prison, he is not compliant with his mental health treatment, he refuses to obtain
a psychosexual evaluation, and he is a registered sex offender”; that Father participated in
the development of the permanency plan but was not in agreement with the goal of adoption
because he wanted to parent the children; that the requirements of the plan were reasonable
and related to the remedying the circumstances that brought about the proceeding; and that
DCS was relieved of duties to provide reasonable efforts to Father because of his conviction
for three counts of aggravated sexual assault of a minor under the age of thirteen. The court
approved the May 1 plan.




        2
           The children had been the subject of an earlier petition to be declared dependent and neglected
filed in the Overton County Juvenile Court on December 17, 2009. The Overton County petition alleged,
inter alia, that Father had been arrested upon an indictment for aggravated sexual battery on December 6,
2009. The children were placed in the temporary protective custody of DCS where they remained until
October 7, 2010, when custody was restored to Mother. Mother subsequently moved to Clay County and,
by order entered September 7, 2011, the case was transferred to Clay County Juvenile Court; the motion to
transfer the case recited that Father remained incarcerated within the Department of Corrections as of
September 7, 2011.
        3
            The termination of Mother’s parental rights to the children are not at issue in this appeal.


                                                      -2-
       The November 24 order also set a hearing for consideration of the petition to
terminate Father’s parental rights which had been filed by DCS on July 10, 2012. The
petition sought to terminate Father’s rights on the grounds of abandonment by incarcerated
parent (Tenn. Code Ann. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(iv)), substantial non-
compliance with permanency plan (Tenn. Code Ann. § 36-1-113(g)(2)), and severe child
abuse as defined by Tenn. Code Ann. § 37-1-102(23) for which Father was sentenced to
more than two years’ imprisonment (Tenn. Code Ann. §§ 36-1-113(g)(4) and (5)).

       The matter was heard on December 18, 2012 and, following the hearing, the court
entered the Final Decree of Guardianship terminating Father’s parental rights, stating as
grounds the following:4


        4
           In support of the grounds for termination, the court made the following findings of fact, pertinent
to the issues in this appeal:

                  10. Lakita E. P. and Michael A. P. have remained continuously in foster care since
        8-31-11.
                  11. The Respondent, Michael A. P., Sr., has been incarcerated during the four
        consecutive months prior to the filing of this petition. Michael A. P., Sr. has been
        incarcerated from 12-7-09 to 6-14-12.
                  12. The Respondent, Michael A. P., Sr., engaged in such conduct prior to
        incarceration as to exhibit a wanton disregard for the welfare of the children. Michael A.
        P., Sr. has been convicted on two counts of Attempted Aggravated Battery of Victims Under
        13 Years of Age. The Respondent’s conduct in wanton disregard for the welfare of the
        children was to sexually abuse his niece and nephew, who resided with him at the time of
        the abuse. Lakita E. P. and Michael A. P. were in Michael A. P., Sr. legal custody at the
        time of this abuse. Michael A. P., Sr. has a lengthy criminal history.
                  13. Michael A. P., Sr. was advised on 5-22-12 and 10-17-11 that conduct prior to
        incarceration in wanton disregard for the welfare of the children was grounds for
        termination of parental rights. Michael A. P., Sr. signed the acknowledgment of receipt of
        the Criteria and Procedure for Termination of Parental Rights on 5-22-12 and 10-17-11.
                  14. Respondent, Michael A. P., Sr., has abandoned Lakita E. P. and Michael A. P.
        pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and Tenn. 36-1-102(1)(A)(iv) and therefore
        his parental rights should be terminated.
                  15. The Respondent, Michael A. P., Sr., has not substantially complied with the
        provisions of the permanency plans and therefore his parental rights should be terminated
        pursuant to T.C.A. 36-1-113(g)(2).
                  16. The initial permanency plan dated 10-14-11 requires him to complete the
        following requirements that he could have completed while incarcerated: submit to a
        psycho-sexual examination, follow all recommendations from the psycho-sexual
        examination, complying with the rules of the facility where he is housed in order to obtain
        an early release or be able to complete his time without receiving other charges, avoid
        criminal behavior, read parenting books, participate in a parenting assessment and following
        recommendations for parenting training. The Court ratified the initial permanency plan on
        12-13-11 and found that the plan was reasonable, necessary and in the best interest of the
        children.
                                                                                                 (continued...)

                                                     -3-
         That [Father] has willfully abandoned the minor children, Lakita E.P.
and Michael A.P., Jr., for more than four (4) consecutive months prior to his
incarceration; that prior to incarceration he engaged in conduct exhibiting a
wanton disregard for the welfare of the children; that he has been substantially
non-compliant with the statement of responsibilities in the permanency plans;
that he has committed severe child abuse as defined by Tenn. Code Ann. § 37-
1-102 against children who resided with [Father] either permanently or
temporarily; that he has been sentenced to more than two (2) years’
imprisonment for conduct against children who resided with [Father] either
permanently or temporarily, which is found to be severe child abuse; and that
it is in the best interest of the children that the parental rights of [Father] be
forever terminated.

Father appeals, stating the following issues:

       A. Did the Clay County Juvenile Court err in finding that the
Department of Children’s Services made reasonable efforts to reunify the
children and the Appellant as required in Tenn. Code Ann. § 37-1-166, so that
termination of the Appellant’s parental rights was not in the best interest of the
minor children at issue in this case?



4
    (...continued)
        17. The revised permanency plan dated 5-1-12 requires him to complete the
following requirements that he could have completed while incarcerated: submit to a clinical
parenting assessment, successfully complete recommended parenting treatment or education,
be supportive of the children’s placement, refrain from discussing the case or other family
members in a negative manner in front of the children, submit to an alcohol and drug
assessment, complete all recommendations from the A&D assessment, submit to a
psychological examination, complete all recommendations from the psychological
evaluation, and sign releases of information so the department can monitor his progress in
these services.
        18. The requirements in the permanency plans are all reasonably related to
remedying the conditions that necessitate foster care.
        19. [Father] has not completed the following requirements in the permanency
plans: a psycho-sexual evaluation, sexual offender counseling, an A&D assessment,
parenting assessment.
        20. The Department made reasonable efforts to assist [Father] in complying with
the requirements in the permanency plan by meeting with him to go over his requirements
in the permanency plan confirming which services were available to him at the facility
where he was housed.
        21. Michael A. P., Sr. was advised on 5-22-12 and 10-17-11 that failure to
substantially comply with the permanency plans was grounds for termination of parental
rights.
***

                                            -4-
              B. Was the decision of the Clay County Juvenile Court based upon
       mistake sufficient to satisfy the legal requirements in any other civil action,
       pursuant to Tenn. Code Ann. § 37-1-139, when the Department of Children’s
       Services presented false evidence at trial that the Appellant was HIV positive?

                                 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). Thus, 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)). Our termination statues 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., No.
M2004-00999-COA-R3-PT, 2005 WL 1021618, at *7 (citing Tenn. Code Ann. § 36-1-
113(g)). A party seeking to terminate the parental rights of a biological parent must prove
at least one of the statutory grounds for termination. Tenn. Code Ann. § 36-1-113(c)(1); In
re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). Secondly, the party must prove that termination of the parental rights of the biological
parent is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c)(2).

        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 766–69; 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. § 36-3-113(c); In
re Valentine, 79 S.W.3d at 546. 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). In re M.J.B., 140 S.W.3d 643, 654 (Tenn. Ct. App. 2004). As to the 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.




                                               -5-
                                               DISCUSSION

I. R EASONABLE E FFORTS

      We first address Father’s contention that the trial court erred in finding that DCS made
reasonable efforts to reunify the children with him.5

       On November 14, 2012, the court entered the annual permanency hearing order in the
dependent and neglect proceeding in which the court, inter alia, removed the requirement
that DCS provide reasonable efforts in light of Father’s convictions for three counts of
aggravated sexual assault of a minor under the age of thirteen. Father did not appeal that
order and has not sought to challenge the order as part of the present appeal. Neither has
Father challenged in this appeal the termination of his rights on the ground of severe child
abuse pursuant to Tenn. Code Ann. § 36-1-113(g)(4).

        Tenn Code Ann. § 37-1-166(g)(4) relieves DCS of the requirement to use reasonable
efforts to provide services meeting the needs of the family where, as here, the parent has
subjected a child residing in the home to aggravated circumstances, as defined at Tenn. Code
Ann. § 36-1-102.6 Once the court held that Father committed severe child abuse, DCS was
excused from making reasonable efforts to reunite the family. Consequently, Father’s
contention is a non-issue.7


        5
          DCS has “the responsibility to make reasonable efforts to reunify children and their parents after
removing the children from their parents’ home.” In re Tiffany B., 228 S.W.3d 148, 158 (Tenn. Ct. App.
2007) (citing Tenn. Code Ann. § 37-1-166).
        6
           Tenn. Code Ann. § 36-1-102(9) defines “aggravated circumstances” to mean “abandonment,
abandonment of an infant, aggravated assault, aggravated kidnapping, especially aggravated kidnapping,
aggravated child abuse and neglect, aggravated sexual exploitation of a minor, especially aggravated sexual
exploitation of a minor, aggravated rape, rape, rape of a child, incest, or severe child abuse, as defined at §37-
1-102.”
        7
           Notwithstanding the fact that DCS was excused from making reasonable efforts to unify Father
with the children, we have reviewed the record and determined that it clearly and convincingly shows that
the efforts DCS expended in attempting to assist Father were both reasonable and substantial. When the
children first came into custody of DCS in 2009 Father was in jail; when they next came into DCS custody
in 2011, Father was serving his prison sentence. The case manager from DCS determined what services were
available in Father’s place of incarceration and discussed with him those services which would lead to
reunification with the children. Father failed to take advantage of those services while he was in prison and,
upon his release, did not seek DCS’ assistance in finding available service providers. As noted in In re
Georgianna H., 205 S.W.3d 508, 519 (Tenn. Ct. App. 2006), Father had a responsibility to take reasonable
and appropriate efforts to reunify with the children and this record is devoid of any proof that Father
complied with his responsibilities. The court did not err in holding that DCS expended reasonable efforts
to reunify the children with Father.
                                                                                                    (continued...)

                                                       -6-
II. F ALSE E VIDENCE

       Father next argues that relief should be granted from the order of termination pursuant
to Tenn. Code Ann. § 37-1-139 because DCS allegedly presented false testimony that Father
was HIV positive at the time of trial and on the dates of the offenses for which he was
convicted.

       Testimony relative to this issue was the following testimony from Father:

             Q. You’re HIV positive; is that correct?
             A. Where are you getting this? No, I’m not HIV positive.
             Q. Isn’t it true, sir, that you were HIV positive at the time you sexually
       abused your niece and nephew?
             A. Ma’am, I am not HIV positive.

Ms. Neely also testified as follows:

               Q. To your knowledge is [Father] HIV positive?
               A. To my knowledge, yes.
               Q. In fact, isn’t his wife HIV positive?
               A. She is.
               Q. At the time that he offended against his niece and nephew he
               was HIV positive; is that correct?
               A. To my knowledge.
       In the order terminating Father’s rights, the court does not make a factual finding that
Father was HIV positive; neither does the court reference the testimony in its discussion of
the grounds for termination. Father does not explain, other than a reference to “the stigma
created by the designation of HIV-positive status,” why he considers this to be an issue in
this appeal, one which entitles him to relief. There is nothing to indicate that the trial court
considered the testimony for any purpose whatsoever. This issue is without merit.

III. B EST I NTEREST

        Once a ground for termination has been proven by clear and convincing evidence, the
trial court must then determine whether it is the best interest of the child for the parent’s
rights to be terminated, again using the clear and convincing evidence standard. The
legislature has set out a list of factors at Tenn. Code Ann. § 36-1-113(i) for the courts to



       7
           (...continued)



                                              -7-
follow in determining the child’s best interest.8 The list of factors in the statute is not
exhaustive, and the statute does not require every factor to appear before a court can find that
termination is in a child’s best interest. See In re S.L.A., 223 S.W.3d 295, 301 (Tenn. Ct.
App. 2006) (citing Tenn. Dep’t of Children’s Servs. v. T.S.W., No. M2001-01735-COA-R3-
CV, 2002 WL 970434, at *3 (Tenn. Ct. App. May 10, 2002); In re I.C.G., No. E2006-00746-
COA-R3-PT, 2006 WL 3077510, at *4 (Tenn. Ct. App. Oct. 31, 2006)).

      The trial court made the following findings in support of its determination that
termination of Father’s parental rights was in the best interest of the children:

       1.      Michael A. P., Sr. has not made an adjustment of circumstances,
       conduct or conditions as to make it safe and in the children’s best interest to
       be in the home of the parent.
       2.      Michael A. P., Sr. has failed to effect a lasting adjustment after
       reasonable efforts by available social agencies for such duration of time that
       lasting adjustment does not reasonably appear possible. While incarcerated,
       Michael A. P., Sr. had the following services available to him: a psycho-sexual

       8
           The factors at Tenn. Code Ann. § 36-1-113(i) are:

       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 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,
       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.

                                                      -8-
       evaluation, sexual offender counseling, an A&D assessment, parenting
       assessment.
       3.      Michael A. P., Sr. has committed brutality, physical, sexual, emotional
       or psychological abuse or neglect toward other children in the family or
       household. He sexually abused his niece and nephew.
       4.      Michael A. P., Sr. emotional status would be detrimental to the children
       and/or prevent him from effectively providing safe and stable care and
       supervision for the children.
       5.      Michael A. P., Sr. has not maintained regular contact with the children
       through the mail.
       6.      Michael A. P., Sr. has shown little or no genuine interest in the welfare
       of the children.
       7.      Michael A. P., Sr. continues to make lifestyle choices that prevent him
       from being able to parent the children or to provide a home for the children.
       8.      The children are placed in a foster home that wishes to adopt the
       children.
       9.      The children have established a strong bond with the foster parents.
       10.     The children have expressed a desire to remain in their foster home.
       11.     The children’s mental health counselor has opined that it is in the
       children’s best interest to establish permanency for the children as soon as
       possible through adoption.
       12.     Lakita E. P. has mental limitations and behavioral issues. Michael A.
       P. has depressive and anger management issues. Both need a stable, structured
       loving home, which they have with the foster parents.
       13.     The children need to be released from the stigma of being foster
       children.

        While the evidence shows that Father completed an anger resolution seminar and a
parent training program and that he progressed in acquiring vocational skills while in prison,
best interest is viewed from the perspective of the children. The children have substantial
issues related to their mental and emotional development and there is nothing in this record
to show that Father can address their needs. The testimony and other evidence clearly and
convincingly supports the trial court’s determination.

                                      CONCLUSION

       Even though Father has not specifically appealed the other grounds upon which his
parental rights were terminated, we have reviewed the record and conclude that the evidence
supports all grounds of termination. Accordingly, we affirm the decision of the trial court.




                                              -9-
       ___________________________________
       RICHARD H. DINKINS, JUDGE




-10-
