                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                  February 13, 2002 Session




                                   M.P.P., ET AL. v. D.L.K.
                                       IN RE: C.E.P.

                   Appeal from the Chancery Court for Anderson County
                     No. 00CH0609 William E. Lantrip, Chancellor

                                      FILED MARCH 26, 2002

                                 No. E2001-00706-COA-R3-CV




The stepfather, M.P.P. (“Stepfather”), and the biological mother, A.P.P. (“Mother”), of a minor child
(“Child”) filed a petition to terminate the parental rights of the Child’s biological father, D.L.K.
(“Father”), so that Stepfather could adopt the Child. When the Child was 17 months old, Father
received a 130-month prison sentence. The Trial Court granted partial summary judgment as a
matter of law to Mother and Stepfather and terminated Father’s parental rights. Father appeals. We
affirm, in part, and vacate, in part, and remand.


          Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
                 Affirmed, in part, and Vacated, in part; Case Remanded.



D. MICHAEL SWINEY , J., delivered the opinion of the court, in which HOUSTON M. GODDARD, P.J.,
and HERSCHEL P. FRANKS, J., joined.

Josephine D. Clark, Oak Ridge, Tennessee, for the Appellant, D.L.K.

N. David Roberts, Jr., Knoxville, Tennessee, for the Appellees, M.P.P. and A.E.P.
                                               OPINION

                                              Background

                Stepfather and Mother of the Child filed a petition ("Petition") in July 2000, seeking
to terminate the parental rights of Father. In the Petition, Stepfather also sought to adopt the Child,
who was approximately six years old when the Petition was filed. In August 1995, when the Child
was approximately 17 months old, Father received a jail sentence of 130 months for a conviction of
bank robbery by force, violence, and intimidation. Father was incarcerated in federal prison in
Kentucky when the Petition was filed. Mother and Father never married, but the paternity of the
Child is not disputed.

                In support of their Petition, Mother and Stepfather alleged, as grounds for termination
of Father's parental rights, that Father had abandoned the Child and that in August 1995, Father
received a sentence of more than ten years when the Child was under the age of eight years. Mother
and Stepfather also alleged in the Petition that termination of Father's parental rights would serve
the Child's best interests.

                Father responded to the Petition with an Answer and Supplemental Answer, denying
that terminating his parental rights would serve the Child's best interests. Father alleged that, prior
to his incarceration, he provided financial support to Mother and the Child. Father also claimed that
since his incarceration, he had attempted to provide support and maintain contact with the Child but
his attempts had been rebuffed by Mother, Stepfather, and the Child’s maternal grandparents.

                Mother and Stepfather then filed a Motion for Summary Judgment.1 This motion was
filed before the parties engaged in any discovery. In their brief filed in support of their motion,
Mother and Stepfather argued they were entitled to judgment as a matter of law because the
undisputed material facts established grounds for terminating Father's parental rights under Tenn.
Code Ann. § 36-1-113(g)(6), due to the length of Father's sentence and the Child’s age at the time
of Father’s sentencing.

                 In support of the Motion for Summary Judgment, Mother filed an affidavit and
Tenn.R. Civ. P. 56.03 statement of undisputed material facts. Mother alleged, in her affidavit, that
Father did not support her financially either during her pregnancy or after the birth of the Child and
that Father did not provide health insurance coverage to her or the Child. Mother stated, in her
affidavit, that the Child only had contact with Father for a period of less than six months during the
first year of the Child's life and that Father’s arrest occurred when the Child was approximately one
year old. Father had been incarcerated since that time. In their Rule 56.03 statement, Mother and
Stepfather stated it was undisputed that Father was convicted of bank robbery by force, violence, and


        1
            Although Mother’s and Stepfather’s motion is captioned “Motion for Summary Judgment,” the motion
actually seeks partial summary judgment since it does not address Stepfather’s request to adopt the Child.

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intimidation, and received a sentence of 130 months in 1995. Mother stated in her affidavit that
Father never had acted as a parent to the Child in a meaningful way. Mother also stated Stepfather
had acted as the Child's father since she and Stepfather married in April 1996. In their Rule 56.03
statement and in Mother's affidavit, Mother and Stepfather further stated that the Child's best
interests would be served by allowing Stepfather to adopt the Child.

                 Father’s response to the Motion for Summary Judgment contended there were
genuine issues of material fact which precluded a grant of judgment as a matter of law to Mother and
Stepfather. In addition to his affidavit, Father filed both a reply statement to Mother’s and
Stepfather’s Rule 56.03 statement and a statement containing additional undisputed facts
(collectively “Rule 56.03 reply statements”). Father alleged, in his Rule 56.03 reply statements and
in his affidavit, he had provided financial support during Mother's pregnancy and after the Child’s
birth. Father further stated he believed that his health insurance was used for the benefit of the Child
prior to his incarceration.

                In addition, Father stated in his affidavit that, during his incarceration, he attempted
to send money to the Child's maternal grandparents to be used for the Child's benefit but the money
was returned to Father. Father also stated in his affidavit that, during his incarceration, he attempted
to maintain contact with the Child through correspondence and telephone calls, but had been denied
any contact with the Child by Mother and Stepfather. Father further stated in his affidavit that he
was sentenced in 1995, to 130 months with 85% to be served and that his projected release date was
September 2004. Father stated he had two pending petitions, one seeking a writ of habeas corpus
and one requesting that his sentence be vacated, set aside, or corrected. Father denied it was in the
Child's best interests to be adopted by Stepfather.

                The Trial Court’s Opinion granting judgment as a matter of law to Mother and
Stepfather stated, in its entirety, as follows:

                        I have reviewed the pleadings and argument of counsel. I am
                of the opinion that this is an appropriate case for Summary Judgment.

                        The Court finds that there exists a basis to terminate the
                father’s rights. Since at the time of this hearing he was incarcerated
                in prison for a period of 130 months the statutory basis for
                termination exists. I further find that termination of the father’s rights
                would be in the best interest of this child.

                        Summary Judgment is granted. . . .

The Opinion addressed neither Mother’s and Stepfather’s remaining ground to terminate Father’s
parental rights, abandonment, nor Stepfather’s request to adopt the Child.



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                Father appeals. While the Trial Court’s Opinion is not a final judgment from which
an appeal lies because the Opinion did not address Stepfather’s request to adopt the Child, we will,
however, treat this matter as a Tenn. R. App. P. 10 appeal. See Tenn. R. Civ. P. 54.02. We affirm,
in part, and vacate, in part, and remand.

                                            Discussion

                On appeal and although not exactly stated as such, Father contends the Trial Court
erred in granting partial judgment as a matter of law to Mother and Stepfather, raising the following
issues: (1) whether the Trial Court erred in finding that grounds for terminating Father’s parental
rights were established by clear and convincing evidence; and (2) whether the Trial Court erred in
finding that the best interests of the Child would be served by terminating Father’s parental rights.
Mother and Stepfather, of course, do not dispute the Trial Court’s grant of partial judgment as a
matter of law to them and raise no additional issues on appeal.

              Our Supreme Court outlined the standard of review of a motion for summary
judgment in Staples v. CBL & Assoc., 15 S.W.3d 83 (Tenn. 2000):

               The standards governing an appellate court's review of a motion for summary
               judgment are well settled. Since our inquiry involves purely a question of
               law, no presumption of correctness attaches to the lower court's judgment,
               and our task is confined to reviewing the record to determine whether the
               requirements of Tenn. R. Civ. P. 56 have been met. See Hunter v. Brown,
               955 S.W.2d 49, 50-51 (Tenn.1997); Cowden v. Sovran Bank/Central South,
               816 S.W.2d 741, 744 (Tenn.1991). Tennessee Rule of Civil Procedure 56.04
               provides that summary judgment is appropriate where: (1) there is no genuine
               issue with regard to the material facts relevant to the claim or defense
               contained in the motion, see Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn.1993);
               and (2) the moving party is entitled to a judgment as a matter of law on the
               undisputed facts. See Anderson v. Standard Register Co., 857 S.W.2d 555,
               559 (Tenn.1993). The moving party has the burden of proving that its motion
               satisfies these requirements. See Downen v. Allstate Ins. Co., 811 S.W.2d
               523, 524 (Tenn.1991). When the party seeking summary judgment makes a
               properly supported motion, the burden shifts to the nonmoving party to set
               forth specific facts establishing the existence of disputed, material facts
               which must be resolved by the trier of fact. See Byrd v. Hall, 847 S.W.2d at
               215.

               To properly support its motion, the moving party must either affirmatively
               negate an essential element of the non-moving party's claim or conclusively
               establish an affirmative defense. See McCarley v. West Quality Food Serv.,
               960 S.W.2d 585, 588 (Tenn.1998); Robinson v. Omer, 952 S.W.2d 423, 426
               (Tenn.1997). If the moving party fails to negate a claimed basis for the suit,

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               the non-moving party's burden to produce evidence establishing the existence
               of a genuine issue for trial is not triggered and the motion for summary
               judgment must fail. See McCarley v. West Quality Food Serv., 960 S.W.2d
               at 588; Robinson v. Omer, 952 S.W.2d at 426. If the moving party
               successfully negates a claimed basis for the action, the non-moving party may
               not simply rest upon the pleadings, but must offer proof to establish the
               existence of the essential elements of the claim.

               The standards governing the assessment of evidence in the summary
               judgment context are also well established. Courts must view the evidence
               in the light most favorable to the nonmoving party and must also draw all
               reasonable inferences in the nonmoving party's favor. See Robinson v. Omer,
               952 S.W.2d at 426; Byrd v. Hall, 847 S.W.2d at 210-11. Courts should grant
               a summary judgment only when both the facts and the inferences to be drawn
               from the facts permit a reasonable person to reach only one conclusion. See
               McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995); Carvell v. Bottoms, 900
               S.W.2d 23, 26 (Tenn.1995).

Staples, 15 S.W.3d at 88-89. A fact is “material” for summary judgment purposes, if it must be
decided in order “to resolve the substantive claim or defense at which the motion is directed.”
Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999) (citing Byrd v. Hall, 847 S.W.2d at 211).

                 It is well-established that "parents have a fundamental right to the care, custody, and
control of their children." In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Stanley
v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)). "However, this right is not absolute
and parental rights may be terminated if there is clear and convincing evidence justifying such
termination under the applicable statute." Id.

                  Termination of parental or guardianship rights must be based upon a finding by the
court by clear and convincing evidence that: (1) the grounds for termination of parental or
guardianship rights have been established; and (2) termination of the parent’s or guardian’s rights
is in the best interests of the child. Tenn. Code Ann. § 36-1-113(c). This Court discussed the “clear
and convincing evidence” standard in O’Daniel v. Messier, 905 S.W.2d 182 (Tenn. Ct. App. 1995),
as follows:

                        The “clear and convincing evidence” standard defies precise
                definition. Majors v. Smith, 776 S.W.2d 538, 540 (Tenn. Ct. App.
                1989). While it is more exacting than the preponderance of the
                evidence standard, Santosky v. Kramer, 455 U.S. at 766, 102 S. Ct.
                at 1401; Rentenbach Eng’g Co. v. General Realty Ltd., 707 S.W.2d
                524, 527 (Tenn. Ct. App. 1985), it does not require such certainty as
                the beyond a reasonable doubt standard. Brandon v. Wright, 838



                                                  -5-
               S.W.2d 532, 536 (Tenn. Ct. App. 1992); State v. Groves, 735 S.W.2d
               843, 846 (Tenn. Crim. App. 1987).

                       Clear and convincing evidence eliminates any serious or
               substantial doubt concerning the correctness of the conclusions to be
               drawn from the evidence. See Hodges v. S. C. Toof & Co., 833
               S.W.2d 896, 901 n. 3 (Tenn. 1992). It should produce in the fact-
               finder’s mind a firm belief or conviction with regard to the truth of
               the allegations sought to be established. In re Estate of Armstrong,
               859 S.W.2d 323, 328 (Tenn. Ct. App. 1993); Brandon v. Wright, 838
               S.W.2d at 536; Wiltcher v. Bradley, 708 S.W.2d 407, 411 (Tenn. Ct.
               App. 1985).

O’Daniel v. Messier, 905 S.W.2d at 188.

               The grounds for termination of parental rights are set forth in Tenn. Code Ann. § 36-
1-113(g). While Mother’s and Stepfather’s Petition alleged a number of grounds for terminating
Father’s parental rights, the Trial Court’s Opinion and this appeal concern only the length of Father’s
sentence as the sole ground for terminating Father’s parental rights. While not specifically cited in
the Opinion, Tenn. Code Ann. § 36-1-113(g)(6) is the statute upon which the Trial Court apparently
relied in making its determination. Tenn. Code Ann. § 36-1-113(g)(6) provides as follows:

               (g) Initiation of termination of parental or guardianship rights may be
               based upon any of the following grounds: . . .

               (6) The 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.

                The record on appeal shows it is undisputed that in August 1995, when the Child was
approximately 17 months old, Father was sentenced to serve 130 months, or 10 years and 10 months,
for bank robbery by force, violence, and intimidation. On appeal, Father contends that Mother and
Stepfather did not establish, by clear and convincing evidence, the ground for termination of his
parental rights provided by Tenn. Code Ann. § 36-1-113(g)(6). Father contends the proof is
insufficient because, due to good behavior, Father will not serve his full sentence of 130 months, and
his projected release date is September 2004. Father also points to the post-conviction relief he is
seeking which, if successful, will make his sentence less than 10 years.

                This Court addressed this issue in In re Copeland, 43 S.W.3d 483 (Tenn. Ct. App.
2000). The biological father in In re Copeland was disputing a petition to terminate his parental
rights and to adopt his minor children. Id. at 485. The trial court terminated the father’s parental
rights on several grounds, including the length of the father’s prison sentence under Tenn. Code Ann.

                                                 -6-
§ 36-1-113(g)(6). On appeal, the father argued the trial court failed to take into account the
possibility of father’s parole. Id. at 489. This Court rejected the father’s argument, holding as
follows:

               We agree with the petitioners that the trial court did not err in its
               application of T.C.A. § 36-1-113(g)(6). The elements of the statute
               are clearly satisfied. . . . When [the father] was sentenced to 29 years
               in prison, his children were both under the age of eight. The statute
               is silent as to the possibility of parole, and we decline to read any
               intent on the part of the legislature to account for a mere possibility
               of early discharge from prison. The evidence does not preponderate
               against the trial court’s finding that, upon clear and convincing
               evidence, the requirements of the statute have been met. We therefore
               find and hold that the trial court was correct in finding a basis for
               terminating Father’s parental rights under the provisions of T.C.A §
               36-1-113(g)(6) (Supp. 1999).

Id. (emphasis added).

                 Father attempts to distinguish his circumstances from that of the father’s in In re
Copeland, arguing that the father in In re Copeland had the mere possibility of parole, while Father
is certain he will not serve his full 130-month sentence since he will be released after serving less
than ten years due to good behavior. The language of the statute, however, clearly shows that the
statute’s applicability hinges not upon time served, but rather the length of sentence and the age of
the minor child at the time of the parent’s sentence. See id.; Tenn. Code Ann. § 36-1-113(g)(6). As
discussed, the record shows it is undisputed that, when Father received his 130-month sentence, the
Child was 17 months old. In light of the language of the statute itself and this Court’s holding in In
re Copeland, Father’s argument fails. Accordingly, we hold that the Trial Court properly granted
judgment as a matter of law to Mother and Stepfather on this issue because the undisputed material
facts establish the ground for termination of Father’s parental rights under Tenn. Code Ann. § 36-1-
113(g)(6).

                 We next review Father’s remaining issue on appeal regarding whether or not the Trial
Court erred in finding that Mother and Stepfather were entitled to judgment as a matter of law on
the issue of whether terminating Father’s parental rights would serve the Child’s best interests. As
discussed, before a person’s parental rights may be terminated, it must be established, by clear and
convincing evidence, that grounds for termination exist and that termination would serve the best
interest of the child. Tenn. Code Ann. § 36-1-113(c). Tenn. Code Ann. § 36-1-113(i) describes the
factors used to determine whether termination is in the best interests of the child in such cases:

               (i)      In determining whether termination of parental or
                        guardianship rights is in the best interest of the child pursuant


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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 or controlled substances 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


                           -8-
                       (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).

                For Mother and Stepfather to prevail on their Motion for Summary Judgment, they
were required to show there were no genuine issues of material fact and they were entitled to
judgment as a matter of law. See Staples v. C.B.L. & Assoc., 15 S.W.3d at 88. The only proof
contained in the record on appeal consists of the competing affidavits of Mother and Father.
Mother’s and Father’s affidavits are in sharp dispute with respect to the extent of Father’s contact
with the Child and his financial contributions to the support of the Child. While Mother claims
Father has had almost no contact with the Child and has provided no financial support, Father claims
that prior to his incarceration, he had contact with the Child and provided financial support to
Mother and the Child. Father also claims that since his incarceration, he has attempted to maintain
contact with the Child through mail and telephone calls and provide financial support to the Child.
Father claims that these attempts, however, have been blocked by Mother, Stepfather, and the
Child’s maternal grandparents.

                Mother and Stepfather argue on appeal that the Trial Court, when faced with these
conflicting affidavits, must have found Mother’s affidavit to be more credible than Father’s affidavit
and that this determination of credibility is afforded great weight on appeal. This Court addressed
the issue of whether a trial court should grant summary judgment when faced with a factual dispute,
stating as follows:

               Summary judgments should not be used to find facts, to resolve
               factual disputes, or to choose among various permissible factual
               inferences. . . . Thus, courts should not weigh evidence in summary
               judgment proceedings, . . . and likewise, they should not make
               credibility determinations. . . .

Burgess v. Harley, 934 S.W.2d 58, 66 (Tenn. Ct. App. 1996) (citations omitted). Accordingly, we
find that Mother’s and Stepfather’s argument fails since the Trial Court was neither to weigh the
evidence nor make credibility determinations as to the conflicting affidavits in this motion for partial
summary judgment. See id.

               Mother’s and Father’s affidavits and respective Rule 56.03 statements show that
genuine issues of material fact exist regarding matters pertinent to a number of factors outlined by
Tenn. Code Ann. § 56-1-113(i). See Tenn. Code Ann. §§ 36-1-113(i)(3), (4), (6) & (9). Since
Mother’s and Father’s affidavits create a genuine issue of material fact regarding whether
termination of Father’s parental rights would be in the best interest of the Child, the Motion for
Summary Judgment should have been denied. Accordingly, we hold it was error to grant partial

                                                  -9-
summary judgment as a matter of law to Mother and Stepfather on the issue of whether the Child’s
best interests would be served by terminating Father’s parental rights. We vacate the Trial Court’s
grant of partial summary judgment as a matter of law to Mother and Stepfather on this issue only.
On remand, the Trial Court is, through appropriate proceedings, to determine whether terminating
Father’s parental rights would be in the Child’s best interests, and to enter an order within 30 days
of the hearing’s conclusion containing specific findings of fact and conclusions of law as required
by Tenn. Code Ann. § 36-1-113(k).

                                            Conclusion

              The judgment of the Trial Court is affirmed, in part, and vacated, in part, and this
cause is remanded to the Trial Court for such further proceedings as required consistent with this
Opinion, and for collection of the costs below. The costs on appeal are assessed equally against the
Appellant, D.L.K., and his surety, and the Appellees, M.P.P. and A.E.P.




                                                       ___________________________________
                                                       D. MICHAEL SWINEY, JUDGE




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