                                                                                         03/21/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                         Assigned on Briefs February 2, 2018

                                  IN RE BENTLEY D.

                Appeal from the Circuit Court for Washington County
                     No. 34545     James E. Lauderback, Judge


                             No. E2016-02299-COA-R3-PT


Father appeals the trial court’s termination of his parental rights on the ground of wanton
disregard for the child’s welfare prior to the father’s incarceration. We affirm.

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

ANDY D. BENNETT, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,
P.J., W.S., and JOHN W. MCCLARTY, J., joined.

Lawrence Scott Shults, Johnson City, Tennessee, for the appellant, David D.


                                        OPINION

                       FACTUAL AND PROCEDURAL BACKGROUND

       Melissa R. (“Mother”) and David D. (“Father”) are the biological parents of
Bentley D., who was born in June 2012. Father was incarcerated with the Tennessee
Department of Correction at the time of the child’s birth. Mother married Aurelio G.
(“Stepfather”) in February 2014.

       On June 26, 2015, Mother and Stepfather filed a petition to terminate Father’s
parental rights and to allow Stepfather to adopt Bentley. The petition alleged as grounds:

       [F]ather has never paid support for the child within the prior four months of
       this petition, nor has he ever paid any support although he has been
       incarcerated from the date of the child’s birth to the present time, and that
       respondent within the prior four months has not attempted to call petitioner
       mother to check as to the welfare of this child nor has he ever sent this child
       a letter or card for petitioner mother to read to the child since an October
          2013 letter and a drawn picture for Bentley to color in June, 2013.
          Although respondent did ask about this child to petitioner Melissa [R.] on
          February 24, 2014, he stated on that date that he wished to surrender his
          parental rights to the child. Grounds exist for termination of the father’s
          parental rights on the basis of abandonment.

Father filed an answer opposing the termination of his parental rights in which he alleged
that Mother told him to stop writing and that he “made several attempts to check on my
child” but the mail came back “return to sender” or he never received a response from
Mother. Father further stated that Mother “moved four times in two years.” The trial
court appointed a guardian ad litem for the child and an attorney for Father.

        In an amended answer filed on October 23, 2015, Father raised a number of
defenses, including the defense that Mother’s petition failed to state a claim upon which
relief could be granted. Father filed a motion to dismiss on October 29, 2015, based upon
Mother’s failure to state a claim upon which relief could be granted. Mother filed a
response in opposition to the motion to dismiss. The motion was heard on May 23, 2016.
The trial court found that Mother’s petition did not comply with Tenn. Code Ann. § 36-1-
113(d)(3)(A)(i)1 or Tenn. Code Ann. §§ 36-1-113(d)(3)(C)(ii) and (iii).2 Although the
trial court found that, when taken together, these defects made the petition defective, the
trial court determined that the defects were not fatal. Upon Mother’s oral motion, the
trial court gave her additional time to file an amended petition to correct the defects. The
trial court further stated: “The petitioners are also ORDERED to amend their Petition to
more fully state, describe and allege the ground of abandonment, with particular
reference to the definition of abandonment set out in T.C.A. § 36-1-102.”



1
  Tennessee Code Annotated section 36-1-113(d)(3)(A)(i) requires a petition to include a verified
statement that: “The putative father registry maintained by the department has been consulted within ten
(10) working days of the filing of the petition and shall state whether there exists any claim on the registry
to the paternity of the child who is the subject of the termination or adoption petition.”
2
    Tennessee Code Annotated sections 36-1-113(d)(3)(C)(ii) and (iii) require the petition to state:

          (ii) The child will be placed in the guardianship of other person, persons or public or
          private agencies who, or that, as the case may be, shall have the right to adopt the child,
          or to place the child for adoption and to consent to the child’s adoption; and

          (iii) The parent or guardian shall have no further right to notice of proceedings for the
          adoption of the child by other persons and that the parent or guardian shall have no right
          to object to the child’s adoption or thereafter, at any time, to have any relationship, legal
          or otherwise, with the child.



                                                      -2-
       On March 27, 2016, Mother filed a pleading entitled “Amendments to Petition”
that included the omitted provisions specified by the trial court and the following
paragraph regarding grounds:

       Petitioners further allege an additional act of abandonment of the child by
       the respondent, that being that prior to his incarceration in the Tennessee
       Department of Corrections, respondent committed acts in wanton disregard
       for the rights of this child. Specifically, respondent had just served thirty
       days upon a violation of probation for his prior Washington County
       Tennessee felony convictions, when he embarked on an additional crime
       spree involving eight auto burglaries and credit card fraud, knowing at the
       time that petitioner . . . was pregnant with his child the subject of this
       petition. Therefore he was sentenced on the prior felonies and the new
       felonies to incarceration in the Tennessee Department of Corrections,
       wherein he still resides serving the sentences in one of their facilities
       wherein he was incarcerated when this cause was initially filed. Petitioners
       as well rely on their prior allegation of abandonment that respondent failed
       to send mail on a regular basis to the child or to inquire about the child on a
       regular basis within four months of the petition being filed.

On June 22, 2016, Father filed an answer denying these allegations and demanding strict
proof; he stated that he was scheduled to be released from prison before June 30.

       The final hearing was held on October 27 and 28, 2016. The court heard
testimony from Mother, Stepfather, a friend, maternal aunt, maternal grandmother,
Father, and paternal great-grandmother. The trial court discussed the statutory ground of
failure to pay child support during the four months preceding the parent’s incarceration
pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(iv). Because the child in this case was
not born until after Father’s incarceration, the trial court determined that this ground was
not applicable. The trial court then found that Father’s parental rights were subject to
termination for abandonment by wanton disregard prior to incarceration pursuant to
Tenn. Code Ann. § 36-1-102(1)(A)(iv) and that termination was in the best interest of the
child. After the expiration of any appeal, the court stated, the petitioners could proceed
with their adoption petition. Father appealed.

       Father argues on appeal that the trial court erred: (1) in failing to find Mother’s
petition deficient under the Rules of Civil Procedure, (2) in using an improper time
window when considering the ground of wanton disregard, and (3) in finding sufficient
evidence to justify termination for wanton disregard.




                                            -3-
                                     STANDARD OF REVIEW

        Under both the federal and state constitutions, a parent has a fundamental right to
the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645,
651 (1972); In re Angela E., 303 S.W.3d 240, 249-50 (Tenn. 2010); Nash-Putnam v.
McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996) (quoting Nale v. Robertson, 871 S.W.2d
674, 678 (Tenn. 1994)). This right is not absolute, however. If a compelling state interest
exists, the state may interfere with parental rights. Nash-Putnam, 921 S.W.2d at 174-75
(quoting Nale, 871 S.W.2d at 678). Our legislature has enumerated the grounds upon
which termination proceedings may be brought. See Tenn. Code Ann. § 36-1-113(g). The
existence of any one of the enumerated grounds will support a termination of parental
rights. In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

       Because terminating a parent’s fundamental parental rights has severe
consequences, termination cases require a court to apply a higher standard of proof. State
Dep’t of Children’s Servs. v. A.M.H., 198 S.W.3d 757, 761 (Tenn. Ct. App. 2006).
Consequently, a court must determine by clear and convincing evidence both that
grounds for termination exist and that termination is in the best interest of the child.
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 Serenity B., No. M2013-02685-COA-R3-PT, 2014 WL
2168553, at *2 (Tenn. Ct. App. May 21, 2014) (quoting In re M.J.B., 140 S.W.3d 643,
653 (Tenn. Ct. App. 2004) (citations omitted)).

       In light of the heightened standard of proof required in termination of parental
rights cases, we must adapt the customary standard of review established by Tenn. R.
App. P. 13(d). Id. In accordance with Tenn. R. App. P. 13(d), we review the trial court’s
findings of fact de novo with a presumption of correctness unless the evidence
preponderates otherwise. Id. Next, we must determine whether the facts establish the
existence of one or more grounds for termination by clear and convincing evidence. In re
M.J.B., 140 S.W.3d at 654.

                                         ANALYSIS

       I. Sufficiency of petition.

      Father’s argument here is that Mother’s petition is deficient because it fails to
comply with Tenn. R. Civ. P. 9A, which states:

       In addition to meeting all other applicable rules governing the filing of
       pleadings, any complaint or petition seeking a termination of parental rights
       shall contain the following notice: “Any appeal of the trial court’s final

                                            -4-
       disposition of the complaint or petition for termination of parental rights
       will be governed by the provisions of Rule 8A, Tennessee Rules of
       Appellate Procedure, which imposes special time limitations for the filing
       of a transcript or statement of the evidence, the completion and
       transmission of the record on appeal, and the filing of briefs in the appellate
       court, as well as other special provisions for expediting the appeal. All
       parties must review Rule 8A, Tenn. R. App. P., for information concerning
       the special provisions that apply to any appeal of this case.”

Neither Mother’s original petition nor the amendment contains this notice. On this basis,
Father argues, the petition is defective and should have been dismissed.

       Father cites In re Natalie R.C., No. E2011-01185-COA-R3-PT, 2011 WL 4924170
(Tenn. Ct. App. Oct. 18, 2011), in support of his position. We find that the case does not,
however, support dismissal. In In re Natalie R.C., the termination petition had multiple
defects, the omission of the Tenn. R. Civ. P. 9A notice being one of them. In re Natalie
R.C., 2011 WL 4924170, at *2-4. The appellate court found that all of the deficiencies
together made the petition defective, but also noted that “[p]erhaps any one of the
deficiencies alone might have constituted harmless error.” Id. at *5. Moreover, the
appellate court determined that the appropriate remedy was not dismissal. Id. Rather, it
held that “[t]hese defects are such that they can be corrected by [petitioner] and her
current attorney if given the opportunity, and they choose to do so.” Id. The court
vacated the trial court’s judgment and remanded for further proceedings. Id.

      In the present case, we find no evidence that the petition’s omission of the Tenn.
R. Civ. P. 9A notice prejudiced Father and conclude that this omission constitutes
harmless error.

       II. Wanton disregard.

      The trial court terminated Father’s parental rights based on only one ground,
wanton disregard pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(iv), which defines
“abandonment” for purposes of the termination of parental rights, in pertinent part, as
follows:

       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 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

                                            -5-
       conduct prior to incarceration that exhibits a wanton disregard for the
       welfare of the child.

(Emphasis added). The wanton disregard ground is not limited to the four months
immediately preceding the parent’s incarceration. In re Audrey S., 182 S.W.3d 838, 871
(Tenn. Ct. App. 2005). The statutory language states, however, that the actions must
occur “prior to incarceration.” Tenn. Code Ann. § 36-1-102(1)(A)(iv); In re Jeremiah N.,
No. E2016-00371-COA-R3-PT, 2017 WL 1655612, at *7 (Tenn. Ct. App. May 2, 2017).
In the context of this provision, “child” includes the period of pregnancy. In re Anthony
R., No. M2014-01753-COA-R3-PT, 2015 WL 3611244, at *3 (Tenn. Ct. App. June 9,
2015); see also In re Jamazin H.M., No. W2013-01986-COA-R3-PT, 2014 WL 2442548,
at *9 (Tenn. Ct. App. May 28, 2014). This court has previously stated that “a person
cannot disregard or display indifference about someone whom he does not know exists.”
In re Anthony R., 2015 WL 3611244, at *3. Thus, the wanton disregard provisions “must
be construed to require that the father has knowledge of the child at the time his actions
constituting wanton disregard are taken.” Id.; see also In re Jeremiah N., 2017 WL
1655612, at *7.

       The trial court made the following factual findings related to its later conclusions
regarding wanton disregard:

       9) Father learned that Mother was pregnant with his child by at least
       January 19, 2012, if not before;
       ....
       11) Father has a criminal history and had been released from Washington
       County Detention Center on approximately December 21, 2011. He was
       returned to jail in February, 2012, on a violation of probation warrant.
       Father admitted to lying to his probation officer about performing his
       community service work and also lied to his probation officer about
       obtaining his GED;[3]
       12) On January 30, 2013, Father entered a guilty plea in Washington
       County, Tennessee, Criminal Court to seven counts of auto burglary.
       According to the certified copies of the judgment from Washington County
       Criminal Court (Ex. 1), these offenses occurred between February 11, 2012,
       and February 18, 2012. In addition, he pled guilty to theft over $500.00.
       He was sentenced to two years in prison, consecutive to his remaining time
       on his prior conviction for felony reckless endangerment;
       ....
       16) Father was released from prison on June 27, 2016, and has not paid
       child support since his release from confinement;

3
  According to Father’s testimony, these probation violations, and the resulting 30-day confinement,
occurred prior to his knowledge of Mother’s pregnancy.
                                               -6-
       17) In the four months prior to the filing of this petition Father did not visit
       with Child;
       18) Father has not seen Child since he was approximately six months old
       and has not spoken to the Child since the child was approximately one and
       one-half years old. Father was in jail or confinement during these “visits”;
       19) In the time period between Father’s release from confinement and the
       trial of this matter, Father did not visit with Child or attempt to visit
       Child[.]

       In concluding that the wanton disregard ground was satisfied in this case, the trial
court stated as follows:

       In this case, Father’s incarceration severely compromised his ability to
       perform parental duties.         Without question, periods of repeated
       incarceration by Father indicate that he is unfit to care for his child.
       Father’s conduct is found to be in wanton disregard for the welfare of the
       child and includes ongoing criminal activity, ongoing probation, repeated
       incarceration, probation violations, failure to support his child and failure to
       visit his child. Father’s repeated incarcerations resulted in his inability to
       provide prenatal care and expenses for Mother and to also adequately
       support or supervise Child after his birth. The repeated incarcerations of
       Father have resulted from longstanding and systemic behavior by Father
       and leads the Court to the conclusion that, by clear and convincing
       evidence, Father has exhibited a wanton disregard for the welfare of Child.

        Father’s first argument with respect to the wanton disregard ground is that the trial
court erred in considering the wrong time period. As discussed above, the evidence
applicable to the wanton disregard ground should be from the time that Father knew
about Mother’s pregnancy—January 19, 2012—to his incarceration in February 2012. It
appears from the trial court’s order that the court considered evidence outside of this time
period. The court refers to “repeated incarceration,” whereas only one period of
incarceration (which began in February 2012) falls within the applicable time period.
The court’s references to “ongoing” criminal activity and probation suggest current
activities or activities during incarceration, either of which falls outside the period
applicable to the wanton disregard analysis. Moreover, the trial court’s reliance upon
Father’s alleged failure to support or visit the child is erroneous. Father testified that he
went shopping with Mother to buy clothes for the baby to wear home, bought outfits for
the child, and went out in the middle of the night to buy food to satisfy Mother’s food
cravings. Father could not visit the child before he was born, and any failure to visit after
his birth occurred after Father’s incarceration and, therefore, is not relevant. We agree
with Father that the trial court erred in considering evidence outside of the appropriate
time period—from the time when Father became aware that Mother was pregnant until
his incarceration.

                                            -7-
       Father’s final argument is that the trial court erred in finding that there was
sufficient evidence to terminate Father’s parental rights on the ground of abandonment by
wanton disregard. As discussed above, the trial court considered irrelevant evidence. We
must, therefore, determine whether the relevant evidence supports a finding of
termination by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c); In re
Valentine, 79 S.W.3d at 546.

       During the relevant time period—January 19, 2012, through February 2012—after
he was aware of Mother’s pregnancy, Father committed seven felony auto burglaries
(between February 11, 2012, and February 18, 2012) and one misdemeanor theft ($500 or
less). This court has “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.” In re Audrey S., 182 S.W.3d at 867-68. In
In re Jeremiah N., 2017 WL 1655612, at *6, after learning of the mother’s pregnancy in
April 2006, the father sold cocaine in August 2006 (for which he was later convicted of
possession with intent to distribute crack cocaine); a few months later, he engaged in
aggravated domestic assault and resisting arrest, which was also a probation violation.
This court determined that there was clear and convincing evidence that father had
engaged in conduct that constituted wanton disregard for the child’s welfare. In re
Jeremiah N., 2017 WL 1655612, at *6.

       “‘The actions that our courts have commonly found to constitute wanton disregard
reflect a “me first” attitude involving the intentional performance of illegal or
unreasonable acts and indifference to the consequences of the actions for the child.’” In
re Zane W., No. E2016-02224-COA-R3-PT, 2017 WL 2875924, at *8 (Tenn. Ct. App.
July 6, 2017) (quoting In re Anthony R., 2015 WL 3611244, at *3). We have concluded
that, in the present case, Father’s string of criminal behavior constitutes clear and
convincing evidence of wanton disregard for the welfare of his child.

      III. Best interest.

       Having determined that clear and convincing evidence of a statutory ground exists
to terminate Father’s parental rights, we must next consider whether the trial court
properly determined that termination is in the child’s best interest. See Tenn. Code Ann. §
36-1-113(c)(2); In re Audrey S., 182 S.W.3d at 860. After a court finds that clear and
convincing evidence exists to support a ground for termination, the child’s interests
diverge from those of the parent and the court focuses on the child’s best interests. In re
Audrey S., 182 S.W.3d at 877. A court must view the child’s best interest from the
perspective of the child, not that of the parent. Id. at 878.

       When considering whether terminating a parent’s rights to a child is in the child’s
best interest, a trial court is to consider the following non-exclusive factors:

                                           -8-
       (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.

Tenn. Code Ann. § 36-1-113(i). A trial court is not required to find that each of the
enumerated factors exists before concluding that it is in the best interest of the child to
terminate a parent’s rights. In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005).

       The trial court, in the present case, made the following findings regarding the
statutory factors:

       1) The Court is unable to make a finding as to whether Father has changed
       his conduct and circumstances. Father has only been out of prison
       approximately four months. He is not yet employed. He apparently lives
       with his grandmother. The Court cannot conclude, from this evidence,
       whether this factor does or does not favor the Child continuing to have a
       relationship with his Father;

                                           -9-
       2) This factor does not apply in this matter as Father never sought social
       services;
       3) Father has not seen or visited with Child since he was six months old.
       Father was in jail at the time. He has not spoken to Child since Child was
       approximately 1-1/2 years of age. Father has been out of jail for four
       months and has not filed any petition nor sought any judicial assistance in
       seeing or visiting with Child. This factor does not favor Child continuing
       to have a relationship with Father;
       4) The evidence and testimony proves that it is overwhelmingly clear that
       Father and Child do not have a meaningful relationship. In fact, Father and
       Child have never had a meaningful relationship. This factor does not favor
       Child continuing to have a relationship with Father;
       5) Mother testified that she wholeheartedly believes a negative effect would
       be caused upon the Child’s emotional and psychological condition by
       having Father introduced into his life after having no relationship for a
       period of time. The only father figure Child has known is his Step-Father.
       This factor does not favor Child continuing to have a relationship with
       Father;
       6) No proof was offered at trial that Father would expose Child to brutality,
       abuse or neglect. However, there was no testimony as to the condition of
       Father’s home (currently residing with his grandmother). This factor would
       presumably tend to favor Child continuing to have a relationship with
       Father.
       7) Father did not present evidence of the physical environment of his
       current residence. However, Father’s criminal activity and repeated
       incarcerations [lead] the Court to believe that the physical environment in
       Father’s current residence would not promote the health and safety of
       Child. This factor does not favor Child continuing to have a relationship
       with Father;
       8) There was no testimony as to Father’s mental or emotional status; and
       9) Father has never paid child support to Mother. This factor does not
       favor Child continuing to have a relationship with Father.

The trial court also discussed “the undisputed fact that Step-Father . . . is apparently in
this country illegally and has applied to obtain legal immigration status.” Despite the
possibility that Stepfather could be deported, the trial court concluded that it was in
Bentley’s best interest for Father’s parental rights to be terminated. The court stated that
Stepfather was the only father figure the child had ever known.

        There is clear and convincing evidence to support the trial court’s determination
that termination of Father’s parental rights is in the child’s best interest.



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                                      CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against the appellant, David D.


                                                   ________________________________
                                                   ANDY D. BENNETT, JUDGE




                                          - 11 -
