                   IN THE COURT OF APPEALS OF TENNESSEE
                                 AT KNOXVILLE
                       Assigned on Briefs, September 16, 2002

      THE STATE OF TENNESSEE, DEPARTMENT OF CHILDREN’S
                       SERVICES, v. TLC

                Direct Appeal from the Juvenile Court for Hamilton County
                        No. 168,377 Hon. Suzanne Bailey, Judge

                                  FILED OCTOBER 14, 2002

                                No. E2002-00699-COA-R3-CV


The Trial Court terminated the mother’s parental rights on statutory grounds. On appeal, we affirm
the Trial Court’s Judgment.

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

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

Julie A. Hall, Chattanooga, Tennessee, for Appellant.

Paul G. Summers, Attorney General and Reporter, and Douglas Earl Dimond, Assistant Attorney
General, Nashville, Tennessee, for Appellee.



                                           OPINION


               In this action, the Trial Judge terminated the mother, TLC’s parental rights to the
child, JAC, and the mother has appealed.

                JAC was born May 17, 1994, and was voluntarily placed by his mother, TLC, at
Bethel Bible Village in July of 1999. At that time TLC was homeless, unable to properly care for
her son, living in and out of motels, and at times sleeping in a car. On August 19, 1999, TLC was
involved in an accident in which her boyfriend was killed, and she later pled guilty to charges of
vehicular homicide. She was incarcerated until February 11, 2000, and received a sentence of eight
years in the Department of Corrections, suspended with intensive probation. JAC came into State
custody in September, 1999, and under the permanency plan developed in conjunction with the
Department, TLC agreed to obtain and maintain safe housing, obtain a parenting assessment and
follow up with any recommended counseling, complete an alcohol and drug assessment, submit to
drug and alcohol testing and treatment, and remain drug free. She also agreed to visit with the child
for 4.3 hours per month after she was released from jail.

               TLC remained free eight months after her release from jail, but her probation was
revoked and she was re-incarcerated in November 2000, after twice testing positive for marijuana
use. A department worker testified that TLC visited her son only one time at Bethel during the entire
time she was free. According to the witness, Bethel Bible Village was less than a mile from the bus
stop at Northgate Mall, and that she had offered TLC bus tickets. She further testified that she
instructed TLC to contact Bethel if she had any problem, as they are ready to assist parents with
visitation.

                TLC testified she had not had regular contact with her son since 1999. She stated that
she missed visitations with her son because she couldn’t get out to Bethel due to the bus schedule.
She testified that after she was back in prison she did write her son a letter a week from January to
June, and then once a month after that.

              She testified that she had not made arrangements to have the parenting assessment
done under the plan, and gave various excuses for not calling son on the phone.

                TLC paid no child support during the time she was out of jail, although she had a job
and income. She testified that no one ever asked her to pay support, and she thought she was being
allowed to save up money to get a home established to take her son. She did not know when she
would be released, but anticipated serving at least another year on her eight year sentence. She
conceded that her pattern had not really changed very much, and admitted that she could not give
her son the stability he needs, and she could not offer any reason the Court should not terminated her
rights, “other that aren’t being selfish, because I just don’t want him to.”

              A case worker testified that JAC is getting the permanency he needs, and responding
well in a normal family environment, and that when he was placed with a foster family he bonded
immediately with them, that he continues to receive counseling services, and doesn’t want to talk
about his mother.

               The witness stated that she gave TLC the telephone numbers for arranging the
parenting assessment, but she never made arrangements during the time she was out of jail, that TLC
had a steady job and housing, and was meeting the other terms of her probation, except for failing
two drug screens, but did not maintain contact with her son.

                 The Trial Court found by clear and convincing evidence that “Defendant made no
reasonable efforts to provide a suitable home and demonstrated a lack of concern for the child to
such a degree that it appears unlikely she will be able to provide a suitable home for the child at an
early date, that there is little likelihood that said conditions will be remedied at an early age so that
the child can be returned to the mother in the near future; that the continuation of the legal parent and


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child relationship greatly diminishes the child’s chances of early integration into a stable and
permanent home; that the Defendant failed to comply in a substantial manner on the reasonable
responsibilities of the Foster Car Plan; that the Defendant willfully abandoned the child for more
than four (4) consecutive months next preceding the filing of the petition in this cause and it is
therefore, for the best interest of the said child and the public that all of the parent rights of the
Defendant to the said child be forever terminated. . . .”

              Our review of a Trial Court sitting without a jury is de novo upon the record, with a
presumption of correctness. Tenn. R. App. P. 13(d). Alexander et al, v. Inman, 974 S.W.2d 689,
692 (Tenn. 1998). The Trial Court’s conclusions of law are subject to de novo review with no
presumption of correctness. Campbell v. Florida Stell Corp., 919 S.W.2d 26, 35 (Tenn. 1993).

               A parent’s right to care, custody and control of his or her child is not absolute, and
may be terminated if justified by the State’s proving by clear and convincing evidence of the
statutory grounds for termination. O’Daniel v. Messier, 905 S.W.2d 182, 186 (Tenn. Ct. App. 1995).
The standard for clear and convincing evidence has been defined as “that measure or degree of proof
which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the
allegations sought to be established.” Wiltcher v. Bradley, 708 S.W.2d 407, 411 (Tenn. Ct. App.
1985). Statutory grounds for termination of parental rights are set forth in Tenn. Code Ann. §36-1-
113 (2001). It well settled that termination of parental rights may be grounded upon the showing by
clear and convincing evidence of the existence of any one of the statutory bases. See In re C.W.W.
et al., 37 S.W.2d 467, 473 (Tenn. Ct. app. 2000).

                 Tenn. Code Ann. §36-1-102(1)(A) defines “abandonment”. Subsection (i) provides
that “For a period of four (4) consecutive months immediately preceding the filing of a proceeding
. . . to terminate the parental rights of the parent(s) . . . that the parent(s) . . . either have willfully
failed to visit or have willfully failed to support or make reasonable payments toward the support of
the child.” Subsection (iv) applies to situations where the parent is incarcerated for all or part of the
period prior to filing the petition: “A parent . . . is incarcerated at the time of the institution of an
action or proceeding . . . or . . . 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 make reasonable payments toward the support of the child
for four (4) consecutive months immediately preceding such parent’s . . . incarceration, or the parent
. . . has engaged in conduct prior to incarceration which exhibits a wanton disregard for the welfare
of the child.” TLC argues that because the State did not allege subsection (iv), that the Court is in
some way limited to proof of TLC’s actions only during the four months immediately preceding the
filing of the petition on May 29, 2001, when she was incarcerated, citing case authority for the
proposition that under Tenn. R. Civ. P. 8.01 and 12.06, facts must be pleaded to state a claim for
relief. Counsel misinterprets the statute which merely defines “abandonment” for the purposes of
the adoption statute. The statute does not create a cause of action, since TLC was incarcerated during
the four months immediately preceding the filing of the petition, subsection (iv) is applicable as the
relative time period. Thus, the relevant time period is the four months preceding defendant’s
incarceration in November 2000, during which abandonment would be established by proving either


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willfully failing to visit the child, willfully failing to make reasonable payments toward his support,
or engaging in conduct that exhibited a wanton disregard for the child’s welfare. The Court found
by clear and convincing evidence that, based upon the visitation alone, TLC had abandoned the
child. The Trial Court observed :

                       You let this child sit for a period of months [in Bethel] while you were
                working, you did have income. You did have the ability to pay to visit this child, and
                you didn’t.

                        You weren’t demonstrating then that you prioritized this child in your life.
                Instead you were prioritizing being either co-dependent on somebody else for your
                existence, following their way of life, but you didn’t do what you could have done.
                ...
                        So on the grounds of failure to follow through on her foster care plan, as well
                as abandonment on the grounds of lack of visitation, and lack of attempt to be
                reunited with this child, I believe strongly also the remainder of the evidence that it
                is indeed in the child’s best interest to be presented the opportunity to continue where
                he is, or at least for a permanent home.

               This Court has previously rejected the argument that self-created legal problems, such
as incarceration for drug offenses can excuse a parent’s failure to visit his or her child. In re M.C.G.,
No. 01A01-9809-JV00461, WL 332729; In re Shipley, No. 03A01-9611-JV-00369, 1997 WL
596281.

                 A parent with a criminal history for drug offenses, who fails drug screens and who
violates parole and does not visit their child during the periods they are in and out of prison, presents
clear and convincing evidence of abandonment, as well as wanton disregard for the welfare of the
child. State v. J.S., et al, 2001 Tenn. App. Lexis 796, No. M2000-03212-COA-R3-JV; G.M.C. et
al. v. A.V.I., 2000 WL 2295686, No. E2000-00134-COA-R3-CV; In re C.W.W. et al, 37 S.W.2d 467,
473 (Tenn. Ct. app. 2000). Also see State v. J.S., 2001 Tenn. App. Lexis 796, No. M2000-3212,
COA-R3-JV.; State v. Grant, 2002 Tenn. App. Lexis 158, No. W2001-01934-COA-R3-JV. The
record establishes by clear and convincing evidence as found by the Trial Court that TLC abandoned
the child and failed to follow through on other responsibilities in the foster care plan. See State v.
Frazier, 2002 Tenn. App. Lexis 138, W2001-01935-COA-R3-JV.

                After determining that grounds exist to terminate parental rights, the trial judge is
required to consider the statutory criteria to determine whether termination is in the child’s best
interest. See Tenn. Code Ann. §36-1-113(i). These factors are not exhaustive, and at least seven of
the nine factors in the statute are implicated in this case. See also, G.M.C. et al v. A.V.I., 2000 WL
1195686, No. E2000-00134-COA-R3-CV. Expecting a young child to wait years on an incarcerated
parent to remedy his or her problems is neither reasonable, nor in the best interest of the child. In
re Shipley, No. 03A01-9611-JV-00369, 1997 WL 596281; State v. T.K., 2002 WL 1115730 (Tenn.
Ct. App. ES).


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                The evidence established that JAC is bonding well and is now happy, outgoing and
not emotionally detached. On the other hand, TLC could give no reason for the Court to consider
other than her being “selfish” and “she did want him to” to deny termination. The Trial Court found
the child was adoptable, and he has hope for a real life with a real family. Continuing the parental
relationship would destroy any hope he has for a real future in the Trial Court’s opinion. We hold
there was clear and convincing evidence that the child’s best interest is served by termination of
TLC’s parental rights.

               The cost of the appeal is assessed to TLC, and the cause remanded.




                                                      _________________________
                                                      HERSCHEL PICKENS FRANKS , J.




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