                                                                                           08/31/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                          Assigned on Briefs August 1, 2018

                                  IN RE HAYDEN L

                  Appeal from the Juvenile Court for Sevier County
                    No. 17-000873      Jeffrey D. Rader, Judge
                     ___________________________________

                            No. E2018-00147-COA-R3-PT
                       ___________________________________


This is a termination of parental rights case. Mother/Appellant appeals the trial court’s
termination of her parental rights to the minor child on the grounds of: (1) abandonment
by an incarcerated parent by willful failure to visit, willful failure to support, and wanton
disregard, Tenn. Code Ann. §§ 36-1-113(g)(1), 36-1-102(1)(A)(iv); (2) severe child
abuse, Tenn. Code Ann. § 36-1-113(g)(4); and (3) incarceration under a sentence of ten
years or more imposed when the child was less than eight years old, Tenn. Code Ann. §
36-1-113(g)(6). Mother also appeals the trial court’s determination that termination of
her parental rights is in the child’s best interest. On appeal, Appellee does not defend the
ground of abandonment by willful failure to support. Because there is insufficient
evidence concerning Mother/Appellant’s employment and earning potential, we reverse
the trial court’s termination of Mother/Appellant’s parental rights on the ground of
abandonment by willful failure to support. The order is otherwise affirmed.

       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court
                Reversed in Part, Affirmed in Part, and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and W. NEAL MCBRAYER, J., joined.

Elizabeth A. Brady, Sevierville, Tennessee, for the appellant, Tiffany P.

Herbert H. Slatery, III, Attorney General and Reporter; and Brian A. Pierce, Assistant
Attorney General, for the appellee, Tennessee Department of Children’s Services.
                                                OPINION

                                             I. Background

        Hayden L. was born to Appellant Tiffany P. (“Mother”) in March of 2012.1 In
June 2016, the Tennessee Department of Children’s Services (“DCS,” or “Appellee”)
received a referral alleging that Hayden L. was drug exposed and the victim of
environmental neglect. Child Protective Services (“CPS”) Investigator, Raki Watson,
found Hayden L. living in the maternal grandmother’s home. CPS reported that there
were five adults and three children (including Hayden) living in the home. The child’s
grandmother reported that Mother was not living in the home. CPS found that the
electricity and water had been turned off and that there was no food in the home. Mr.
Watson further observed that there was a foul odor in the home and that the adults
appeared to be under the influence of narcotics. Hayden was removed from the maternal
grandmother’s home on June 27, 2016. As discussed below, Mother has had no contact
with the child since that time.


       By order of August 24, 2016, the Juvenile Court for Sevier County (“trial court”)
adjudicated Hayden to be dependent and neglected and placed temporary custody with
the maternal aunt, Summer W. By the same order, the trial court held that Mother would
have no contact with Hayden. Hayden remained in Summer W.’s home until March
2017. At that time, Summer W. informed DCS that she could no longer care for the
child. On March 3, 2017, the trial court entered an order transferring custody of the child
to DCS. Hayden was placed in foster care, where he has remained since that time.


       In its March 3, 2017 order, placing custody with DCS, the trial court noted that the
family had a long history with DCS. As is relevant to the instant appeal, in February
2011, Mother gave birth to Payton L., who is not the subject of this appeal. Shortly
thereafter, DCS received a referral that Mother had exposed Payton to narcotics while she
was pregnant. Payton, who was born prematurely, tested positive for Oxycodone and
was removed from Mother’s custody on March 10, 2011. By order of June 29, 2011,
Payton was adjudicated dependent and neglected due to Mother’s severe abuse by drug
exposure. Mother’s parental rights to Payton were terminated by order of January 12,
2012. On appeal, this Court affirmed the termination of Mother’s parental rights to
Payton. In re: Payton A.D.L., No. E2012-00090- COA-R3-PT, 2012 WL 2336256
(Tenn. Ct. App. June 20, 2012). In Payton, we noted that “Mother concedes that clear
and convincing evidence existed to establish the ground of severe child abuse based on
her drug use while pregnant.” 2012 WL 2336256, at *4, fn. 3. We further noted that,

        1
           In cases involving minor children, it is the policy of this Court to redact the parties’ names so as
to protect their identities.
                                                    -2-
“[a]t the time of the termination hearing [concerning Payton], Mother was seventeen
weeks pregnant with another child [i.e., Hayden]. She admitted, however, that she
continues to use methadone while pregnant, well aware of the risks that drug use poses to
her unborn child.” Id. at *3. “Despite Mother’s efforts to overcome her struggle with
drug addiction, she has been unable to complete the first of four phases of the treatment
process since she began methadone treatment in June 2011.” Id. at *3, fn. 2.

        On June 26, 2017, the guardian ad litem, on behalf of DCS, filed a petition to
terminate Mother’s parental rights to Hayden. At the time of the filing of the petition,
Mother was incarcerated for probation violation. By her own testimony, Mother was
incarcerated from approximately June 21, 2017 until August 8, 2017. As grounds, the
petition averred abandonment by an incarcerated parent by willful failure to visit, willful
failure to support, and wanton disregard; failure to manifest an ability and willingness to
assume legal and physical custody; severe abuse; and incarceration under a sentence of
ten years or more when the child was under eight. At the hearing on the petition, DCS
voluntarily non-suited the ground of failure to manifest an ability and willingness to
assume legal and physical custody. Following the hearing, the trial court entered an
order, on December 21, 2017, terminating Mother’s parental rights on the remaining
grounds and on its finding that termination of her rights is in the child’s best interest.2
Mother appeals.
                                        II. Issues

          There are two dispositive issues, which we state as follows:

1. Whether there is clear and convincing evidence to support at least one of the grounds
for termination of Appellant’s parental rights.
2. If so, whether there is clear and convincing evidence to support the trial court’s
determination that termination of Appellant’s parental rights is in the child’s best interest.

                                        III. Standard of Review

       Under both the United States and Tennessee Constitutions, 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 (Tenn. 1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn.
1996). Thus, the state may interfere with parental rights only when a compelling interest
exists. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky v. Kramer, 455 U.S. 745
(1982)). Our termination statutes 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., Nos.
M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7

          2
              Father’s parental rights to Hayden were terminated by the same order. Father did not file an
appeal.
                                                    -3-
(Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113(g)). A person
seeking to terminate parental rights must prove both the existence of one of the statutory
grounds for termination and that termination is in the child’s best interest. Tenn. Code
Ann. §§ 36-1-113(c); In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine,
79 S.W.3d 539, 546 (Tenn. 2002).

       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 769. Accordingly, both the
grounds for termination and that termination of parental rights is in the child’s best
interest must be established by clear and convincing evidence. Tenn. Code Ann. § 36-3-
113(c)(1); 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 M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004). Such evidence
“produces in a fact-finder’s mind a firm belief or conviction regarding the truth of the
facts sought to be established.” Id. at 653.

       In view of the heightened standard of proof in termination of parental rights cases,
a reviewing court must modify the customary standard of review in Tennessee Rule of
Appellate Procedure 13(d). As to the trial court’s findings of fact, our review is de novo
with a presumption of correctness unless the evidence preponderates otherwise. Tenn. R.
App. P. 13(d). 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. Jones v. Garrett, 92 S.W.3d 835, 838
(Tenn. 2002).

                   IV. Grounds for Termination of Parental Rights

       As noted earlier, the trial court relied on the following statutory grounds in
terminating Appellant’s parental rights: (1) abandonment by an incarcerated parent by
willful failure to visit, willful failure to support, and wanton disregard, Tenn. Code Ann.
§§ 36-1-113(g)(1), 36-1-102(1)(A)(iv); (2) severe child abuse, Tenn. Code Ann. § 36-1-
113(g)(4); and (3) incarceration under a sentence of ten years or more imposed when the
child was less than eight years old, Tenn. Code Ann. § 36-1-113(g)(6). Although only
one ground must be proven by clear and convincing evidence in order to terminate a
parent’s rights, the Tennessee Supreme Court has instructed this Court to review every
ground relied upon by the trial court to terminate parental rights in order to prevent
“unnecessary remands of cases.” In re Angela E., 303 S.W.3d 240, 251 n.14 (Tenn.
2010). Accordingly, we will review all of the foregoing grounds.



                                            -4-
                                   A. Abandonment

       We begin with the ground of abandonment generally. In this case, DCS alleged
abandonment under Tennessee Code Annotated Section 36-1-113(g)(1), which provides
that termination of a parent’s rights may be initiated based on “[abandonment by the
parent or guardian, as defined in § 36-1-102 . . . .” Tenn. Code Ann. § 36-1-113(g)(1).
Tennessee Code Annotated section 36-1-102 outlines several definitions of
“abandonment.” As noted above, DCS filed its petition to terminate Mother’s parental
rights on June 26, 2017. It is undisputed that Mother was incarcerated from June 21,
2017 until August 8, 2017. Accordingly, the trial court relied on the following definition
of abandonment:

      (1)(A) For purposes of terminating the parental or guardian rights of a
      parent or parents or a guardian or guardians of a child to that child in order
      to make that child available for adoption, “abandonment” means that:


      (iv) 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
      conduct prior to incarceration that exhibits a wanton disregard for the
      welfare of the child.

Tenn. Code Ann. § 36-1-102(1)(A)(iv). In In re Audrey S., this Court discussed
willfulness in the context of termination of parental rights cases:

              The concept of “willfulness” is at the core of the statutory definition
      of abandonment. A parent cannot be found to have abandoned a child . . .
      unless the parent has . . . “willfully” . . . failed to support the child for a
      period of four consecutive months. . . . In the statutes governing the
      termination of parental rights, “willfulness” does not require the same
      standard of culpability as is required by the penal code. Nor does it require
      malevolence or ill will. Willful conduct consists of acts or failures to act
      that are intentional or voluntary rather than accidental or inadvertent.
      Conduct is “willful” if it is the product of free will rather than coercion.
      Thus, a person acts “willfully” if he or she is a free agent, knows what he or
      she is doing, and intends to do what he or she is doing ....

                                           -5-
              The willfulness of particular conduct depends upon the actor’s
      intent. Intent is seldom capable of direct proof, and triers-of-fact lack the
      ability to peer into a person’s mind to assess intentions or motivations.
      Accordingly, triers-of-fact must infer intent from the circumstantial
      evidence, including a person’s actions or conduct.

In re Audrey S., 182 S.W.3d 838, 863-64 (Tenn. Ct. App. 2005) (internal citations and
footnotes omitted). This Court has held that failure to pay support is “willful” if the
parent “is aware of his or her duty to support, has the capacity to provide the support,
makes no attempt to provide support, and has no justifiable excuse for not providing the
support.” In re J.J.C., 148 S.W.3d 919, 926 (Tenn. Ct. App. 2004) (quoting In re
Adoption of Muir, No. M2002-02963-COA-R3-CV, 2003 WL 22794524, at *5 (Tenn.
Ct. App. Nov. 25, 2003)). “Whether a parent failed to visit or support a child is a
question of fact. Whether a parent’s failure to visit or support constitutes willful
abandonment, however, is a question of law.” In re Adoption of Angela E., 402 S.W.3d
at 640 (citing In re Adoption of A.M.H., 215 S.W.3d at 810). As previously discussed,
this Court reviews questions of law de novo with no presumption of correctness. Id.

        The trial court found sufficient evidence to support the following types of
abandonment against Mother: (1) abandonment by an incarcerated parent by willful
failure to support, (2) abandonment by an incarcerated parent by willful failure to visit;
and (3) abandonment by an incarcerated parent by wanton disregard.

                    1. Abandonment by Willful Failure to Support

       Because Mother was incarcerated at the time DCS filed its petition to terminate
her parental rights, the statutory definition of “abandonment” under Section
102(1)(A)(iv) requires us to focus on the “four (4) consecutive months immediately
preceding the parent’s or guardian’s incarceration.” As noted above, Mother was
incarcerated from June 21, 2017 until August 8, 2017. Accordingly, with respect to the
ground of abandonment by willful failure to support and visit, the relevant time period is
February 21, 2017 to June 20, 2017.

       A parent willfully fails to support her child when, for the relevant four month
period, the parent fails to provide monetary support or fails to provide more than “token
payments” toward the support of the child. Tenn. Code Ann. § 36-1-102(1)(D) (defining
“willfully failed to support” and “willfully failed to make reasonable payments toward
such child’s support”). “Token support” is support that, considering the individual
circumstances of the case, is “insignificant given the parent’s means.” Id. at (1)(B).
Although it is undisputed that Appellant paid no support for Hayden during the relevant
time period, in order to prove this ground, DCS also has the burden to show that Mother
had the capacity to provide support. In re. J.J.C., 148 S.W.3d at 926. As this Court
recently explained:
                                           -6-
       It is axiomatic that “in order to establish the ground of abandonment by
       willful failure to support by clear and convincing evidence, the party
       seeking termination must generally ‘submit ... evidence regarding [the
       parent’s] employment, income, [or] other non-monetary assets,’ as well as
       the parent’s ‘expenses during the four-month period.’” In re Michael B.,
       No. M2015-02497-COA-R3-PT, 2016 WL 7486361, at *11 (Tenn. Ct.
       App. Oct. 6, 2016) (quoting In re Destiny H., No. W2015-00649-COA-R3-
       PT, 2016 WL 722143, at *9 (Tenn. Ct. App. Feb. 24, 2016)). Such
       evidence need not be an accounting of every dollar earned and spent, and it
       need not even be tied to dollars and cents, but it must be clear and
       convincing evidence that the parent had the capacity to pay support, did not
       do so, and had no justification for not doing so. In the case of In re
       Adoption of Angela E., 402 S.W.3d [636,] at 641 [(Tenn. 2013)], in the
       context of examining whether the father’s payments were “token support,”
       our Supreme Court stated that the evidence of the father’s income and
       expenses was “limited at best” and failed to prove that his payments were
       “token support.” See also In re Michael B., 2016 WL 7486361, at *11
       (discussing In re Adoption of Angela E. and other cases regarding proof of
       employment, income, other non-monetary assets, and expenses necessary to
       establish a parent’s capacity to pay support).

In re Preston L., No. M2016-02338-COA-R3-PT, 2017 WL 4315356, at *5 (Tenn. Ct.
App. September 27, 2017).

       In its order terminating Mother’s parental rights, the trial court made the following
relevant findings concerning abandonment by willful failure to support:

                The Court [] finds that the Mother has failed to support this minor
       child . . . . The Court finds that this Mother has not supported this child or
       has made only token payments toward child support in the four (4) months
       immediately preceding her incarceration on June 21, 2017. . . . This Court
       notes that from the outset this Mother is healthy, capable and through her
       own testimony has the ability to support herself and pay some support even
       if it is a minimal amount. The Mother testified that she had worked several
       different jobs including one at a restaurant, this all having occurred since
       this minor child was removed from her custody.
                This Court specifically finds that the Mother’s employment ended as
       she became pregnant and gave birth to another child. There is no indication
       in this record that the Mother operates under any type of disability or has
       any physical or mental limitations which the Court would be required to
       look to. To the contrary, the Mother’s own testimony was that she in fact
       could work but had not paid any support. The Court further finds that the
                                              -7-
       mother knew how to make payments and had actually made some payments
       since the time the petition had been filed.
              This Court finds that any amounts contributed by Mother in any
       form would amount only [] to token support and would not prevent this
       Court from making a finding that the mother has abandoned this child. . . .


       In the first instance, any attempt of a parent to rectify abandonment by resuming
payments once a petition for termination has been filed does not preclude DCS from
seeking termination of parental rights. Tenn. Code Ann. 36-1-102(1)(F). Accordingly,
Mother’s attempt to pay child support after the petition was filed does not negate the trial
court’s reliance on the ground of abandonment by willful failure to support.


        In its appellate brief, DCS states that “the Department does not defend the ground
of failure to support.” Despite DCS’s choice not to defend the ground of abandonment
by willful failure to support, under In re Angela E., supra, this Court is charged to
review each of the grounds the trial court relies on in terminating a parent’s rights.
Turning to the record, although there is proof that Mother is not disabled or otherwise
precluded from gainful employment, to prove this ground, DCS has the burden to show,
by clear and convincing evidence, that Mother not only “had the capacity to pay support
[but] did not do so, [but also that she] had no justification for not doing so.” In re
Preston L., 2017 WL 4315356, at *5. From our review of the record, DCS, as it
concedes, did not meet this burden. Accordingly, we conclude that the trial court erred in
terminating Mother’s parental rights on the ground of abandonment by willful failure to
support.
                        2. Abandonment by Willful Failure to Visit

       It is undisputed that Mother did not visit Hayden in the four months before her
incarceration. In fact, Mother testified that she last saw the child in June 2016. However,
as discussed above, on August 24, 2016, the trial court entered a no contact order barring
Mother from having contact with Hayden. In relevant part, the no contact provisions of
the order provide:

       [Mother] shall have no contact with the child/children, including no
       personal contact, no telephone calls, no electronic or written messages, and
       no messages through third parties. This injunction order shall remain in
       effect until the child/children reach the age of 18 or until this order is
       modified by this Court.

                                            ***

       This case is closed. In order to modify the Court’s final orders regarding
                                         -8-
       visitation, custody, or any other matter, the Respondent [i.e., Mother] must
       petition the Court to reopen the case and provide proper notice to [DCS].
       The Respondent must also provide proof to [DCS] and to the Court that
       [she has] complied with all services requested by DCS in the petition and
       other order of this Court . . . .


        In view of the no contact order, the question is whether Mother’s failure to visit
constitutes a willful failure to visit for purpose of terminating her parental rights. Where
the failure to visit is not willful, it does not constitute abandonment. In re Adoption of
A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007). A parent who attempts to visit and
maintains a relationship with the child, but is “thwarted by the acts of others and
circumstances beyond [her] control,” cannot be found to have willfully abandoned the
child. Id. However, it is well-settled that a trial court’s order requiring that a parent
complete some task or meet a condition before resuming visitation does not preclude a
finding of willfulness. “This Court has often held that when a parent’s visitation has been
suspended by the trial court and the parent has the ability to demonstrate a change in
situation or behavior that would warrant reinstating visitation but fails to do so, that
parent can be found to have willfully failed to visit.” In re Kiara C., No. E2013-02066-
COA-R3-PT, 2014 WL 2993845 (Tenn. Ct. App. June 30, 2014) (citing In re Elijah B.,
E2010-00387-COA-R3-PT, 2010 WL 5549229, at *8 (Tenn. Ct. App. Dec. 29, 2010)).
Furthermore, this Court has specifically opined that when a parent chooses not to
cooperate with certain conditions, such as obtaining a drug and alcohol abuse assessment,
that choice “in refusing to cooperate [ ] constitute[s] a willful decision” to discontinue
visitation. State Dept. of Children's Servs. v. J.A.H., No. E2005-00860-COA-R3-PT,
2005 WL 3543419, at *6 (Tenn. Ct. App. Dec. 28, 2005). As set out in context above,
the no contact order clearly states that Mother may petition to set the no contact order
aside, with the only conditions being that she provide proper notice to DCS and show
proof that she is complying with the services/requirements deemed necessary for
reunification with the child. During her testimony, Mother admitted that she was aware
that she had to petition the trial court to set aside the no contact order, but that she never
filed a petition:

       Q [to Mother]: So you said you got a [copy of the no contact order], are you
       saying you got a copy of the court order?

       A. I did, yes.

       Q. . . . and did you see the box at the end that said you had to re-petition the
       Court?

       A. Yes. . . .

                                            -9-
                                             ***

       Q. –between August the 24th of 2016 and when he came into custody in
       March of this year, did you file anything to have contact with him . . . .

       A. I’m sorry. I think we have asked for it in Court. . . .

Despite Mother’s admission that she understood that she was required to petition the trial
court in order to lift the no contact order so as to visit Hayden, Mother did not, in fact,
ensure that such petition was filed. In view of the undisputed fact that Mother has had no
contact with Hayden since June 2016 and has taken no overt steps to petition the trial
court to set aside or modify the no contact order, there is clear and convincing evidence
that she has abandoned the child by willful failure to visit.

                         3. Abandonment by Wanton Disregard

       The trial also court found that Mother abandoned Hayden by wanton disregard.
As defined at Tennessee Code Annotated Section 36-1-102(1)(A)(iv), abandonment, as a
ground for termination of a parent’s rights, may be established if “the parent . . . has
engaged in conduct prior to incarceration that exhibits a wanton disregard for the welfare
of the child.” Tenn. Code Ann. § 36-1-102(1)(A)(iv). Although the statute does not
define “wanton disregard,” this Court has explained that

       [i]ncarceration alone is not conclusive evidence of wanton conduct prior to
       incarceration. In re Audrey S., 182 S.W.3d 838, 866 (Tenn. Ct. App.
       2005). Rather, “incarceration serves only as a triggering mechanism that
       allows the court to take a closer look at the child’s situation to determine
       whether the parental behavior that resulted in incarceration is part of a
       broader pattern of conduct that renders the parent unfit or poses a risk of
       substantial harm to the welfare of the child.” Id. The statutory language
       governing abandonment due to a parent’s wanton disregard for the welfare
       of a child “reflects the commonsense notion that parental incarceration is a
       strong indicator that there may be problems in the home that threaten the
       welfare of the child” and recognizes that a “parent’s decision to engage in
       conduct that carries with it the risk of incarceration is itself indicative that
       the parent may not be fit to care for the child.” Id.

In re C.A.H., No. M2009-00769-COA-R3-PT, 2009 WL 5064953, at *5 (Tenn. Ct. App.
Dec. 22, 2009). We further note that the ground of abandonment by wanton disregard
does not require that the conduct at issue occur within the four months prior to
incarceration. In re Audrey S., 182 S.W.3d at 865 (“This test has no analog to the first
statutory definition of abandonment [i.e., abandonment by willful failure to visit or
support], and it is not expressly limited to any particular four-month period.”). Rather,
                                           - 10 -
Tennessee courts may consider the parent’s behavior throughout the child’s life, even
when the child is in utero. See In re A.B., No. E2016-00504-COA-R3-PT, 2017 WL
111291, at *10 (Tenn. Ct. App. Jan. 11, 2017). In short, “[t]he 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 Anthony R., No. M2014-01753-
COA-R3-PT, 2015 WL 3611244, at *3 (Tenn. Ct. App. June 9, 2015).

       In its order terminating Mother’s parental rights, the trial court made the following
relevant findings concerning abandonment by wanton disregard:

               The Court specifically finds as it relates to this ground, that this
       Mother was incarcerated at the time of the filing of the petition and has a
       lengthy criminal history. The Mother has demonstrated conduct that
       clearly evidences her wanton disregard for the wellbeing of this child . . . .
       The Mother testified as to her lengthy history of drug abuse including the
       use of Methamphetamine, Oxycodone, Hydrocodone and other opioids.
       There is clear and convincing proof in this record of Mother’s serious
       criminal behavior where she has been convicted on numerous occasions for
       violating numerous criminal statutes . . . . The Court notes that there are
       convictions from 2015 which carry an effective sentence to this Mother of
       ten (10) years. Specifically the Court finds the Mother was convicted of
       initiating the manufacture of methamphetamine, reckless endangerment,
       and escape. Further the Court notes that the reckless endangerment
       conviction was originally charged as a Class A Felony of Aggravated Child
       Abuse and Neglect. This Court would note that this child, Hayden, was the
       victim of this crime.
               Other proof was offered as to convictions received by the Mother for
       various criminal acts some time in 2012. As recent[ly] as June of 2017, this
       Mother was arrested for violating probation due to convictions received in
       Jefferson County, Tennessee. Specifically the Mother had failed drug
       screens as recently as March of 2017. The Court also notes that this
       Mother has previously been found to have severely abused a prior child
       [i.e., Payton], that child having been born with neonatal abstinence
       syndrome similar to that of this child Hayden. Clearly these acts of this
       Mother evidence a long standing disregard for the well-being of this child.
               The Mother continues to exhibit repeated behaviors throughout the
       years and life of this minor child. Her actions have placed this child in
       grave danger and will surely cause long term effects which may be
       unknown for many years. This Mother has a history of failing to properly
       parent, substance abuse, unemployment, homelessness and many other
       characteristics which completely call for a finding of wanton disregard for
       this minor child. Therefore, this Court finds by clear and convincing
                                           - 11 -
       evidence that this Mother has abandoned the minor child . . . as she has
       demonstrated a wanton disregard for this child’s well-being by her
       incarceration and criminal acts.

       The evidence supports the trial court’s findings. Without extending the length of
this opinion to list each of Mother’s crimes and each probation violation, suffice it to say
that her criminal record is prolific. Particularly troubling is the manufacture of
methamphetamine and endangerment charges because Hayden was in the house where
the drugs were being made. Mother has repeatedly violated the terms of her parole and
has extended her criminal record by engaging in additional illegal activities while this
case was pending.

Aside from her criminal record, during her testimony, Mother readily admitted that she
continued to take drugs during her pregnancy with Hayden despite the fact that she had
lost custody of her first child by the same action. Mother’s testimony further shows that
her addiction is ongoing, and the evidence indicates that despite some effort to abstain,
Mother has been unable to thwart her addiction for any significant length of time.
Mother’s addiction has negated her ability to parent Hayden. She has been largely absent
from his life, and has left him in the care of relatives, who also suffer from addiction
issues. From the totality of the circumstances, we conclude that there is clear and
convincing evidence to support the trial court’s termination of Mother’s parental rights on
the ground of abandonment by wanton disregard.

                                 B. Severe Child Abuse

        The trial court also relied on the ground of severe child abuse to terminate
Mother’s parental rights. Tennessee Code Annotated section 36-1-113(g)(4), provides
that a parent’s rights may be terminated when:

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

As referenced in section 36-1-113(g)(4), Tennessee Code Annotated section 37-1-
102(22) defines “severe child abuse,” in relevant part, as follows:

       “Severe child abuse” means:
       (A)(i) The knowing exposure of a child to or the knowing failure to protect
       a child from abuse or neglect that is likely to cause serious bodily injury or
       death and the knowing use of force on a child that is likely to cause serious
       bodily injury or death;

                                           - 12 -
        In In re Benjamin M., this Court specifically held “that severe child abuse can
result from prenatal drug use.” In re Benjamin M.¸ 310 S.W.3d 844, 848 (Tenn. Ct.
App. 2009), perm. app. denied (Tenn. March 15, 2010) (relying on In re C.T.S., 156
S.W.3d 18 (Tenn. Ct. App. 2004); In re M.J.J., No. M2004-02759-COA-R3-PT, 2005
WL 873305 (Tenn. Ct. App. April 14, 2005)). As noted above, “[o]n June 29, 2011, the
juvenile court . . . found that Mother severely abused Payton by exposing him to drugs
while she was pregnant . . . .” Payton, 2012 WL 2336256, at *2. The order by which
Mother was found to have committed severe child abuse was entered on June 29, 2011.
Mother had the right to appeal that ruling; however, she did not. Therefore, the order
finding that Mother committed severe child abuse became final. Under the doctrine of
res judicata, when there is a final judgment on the merits, by a court of competent
jurisdiction, that ruling is conclusive of rights, questions and facts in issue as to the
parties. Galbreath v. Harris, 811 S.W.2d 88, 90 (Tenn.Ct.App.1990). Because the order
adjudicating Mother to have severely abused Hayden’s sibling, Payton, is a final
judgment, the trial court (in this termination of parental rights proceeding) found, by clear
and convincing evidence, that Mother committed severe child abuse. Accordingly, we
affirm the trial court’s termination of Mother’s parental rights on the ground of severe
child abuse.

              C. Incarceration Under a Sentence of Ten Years or More
              Imposed When the Child Was Less Than Eight Years Old

       In terminating Mother’s parental rights, the trial court also relied on the ground set
out in Tennessee Code Annotated section 36-1-113(g)(6), which provides that a parent’s
rights may be terminated if

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

       In its order terminating Mother’s parental rights, the trial court made the following
relevant findings concerning this ground:

              The Court now finds pursuant to T.C.A. §36-1-113(g)(6) that the
       Mother has received “a sentence of ten (10) years or more at the time when
       the minor child was under the age of eight (8).”
              Specifically the Court notes that collective Exhibit 10 indicates this
       Mother was convicted on September 12, 2016, of initiating the manufacture
       of methamphetamine. At that time pursuant to the judgment, the Mother
       received a sentence of eight (8) years to serve in the custody of the
       Department of Correction[] with the incarceration being suspended to
       supervised probation. Further, on that same date, September 12, 2016, the
                                          - 13 -
      Mother was convicted of escape. The judgment indicates the Mother
      received a two (2) year sentence in the custody of the Department of
      Correction[] this sentence being consecutive to the eight (8) year sentence
      set forth above.
              It is uncontroverted that this minor child was only four (4) years old
      at the time the Mother received these sentences. There does not seem to be
      any dispute as to the proof as it relates to this particular ground. The
      Mother, through her own testimony, acknowledged the convictions, the
      sentences, and their lengths, without dispute. The Court therefore finds by
      clear and convincing evidence that the Mother has been convicted of
      criminal acts under a sentence of ten (10) years and that the minor child
      was under the age of eight (8) at the time of the imposition of the sentence.
      The requisites as provided for in T.C.A. § 36-1-113 are proven by clear and
      convincing evidence. The Court therefore finds that this ground serves as a
      ground to terminate the Mother’s rights.

       In the instant case, it is undisputed that, although Mother received a sentence of
ten years, she was not initially incarcerated under that sentence. Rather, Mother was
granted probation in lieu of confinement. However, the record shows that Mother
subsequently violated the terms of her probation, which resulted in imprisonment.

       This court has “repeatedly recognized that a court considering a petition for
termination of parental rights based on Tennessee Code Annotated section 36-1-113(g)(6)
need not look beyond the judgment of conviction and the sentence imposed by the
criminal court in order to determine whether this ground for termination applies.” In re
Audrey S., 182 S.W.3d at 876 (citations omitted). It does not matter that Mother served
less than ten years; we only look at the length of the sentence and age of the child at
sentencing. See In re D.M., No. M2009-00340-COA-R3-PT, 2009 WL 2461199, at *3
(Tenn. Ct. App. Aug.12, 2009) (terminating parental rights of father based on Tenn. Code
Ann. § 36-1-113(g)(6) even though he had completed his ten year sentence). As this
Court held in In re Chandler M., No. M2013-02455-COA-R3-PT, 2014 WL 3586499 , at
*7 (Tenn. Ct. App. July 21, 2014), perm. app. dismissed (Tenn. Sept. 29, 2014):

      While the statute [i.e., Tenn. Code Ann. § 36-1-113(g)(6)] requires some
      period of confinement, the legislature did not expressly provide that the
      actual period of confinement must amount to 10 or more years. We decline
      to insert such a meaning into the statute when the obvious intention of the
      statute was to achieve permanency for children whose parents are subjected
      to the possibility of lengthy prison sentences

Based on Mother’s probation violation and subsequent incarceration under a sentence of
ten years while the child was under the age of eight, we conclude that there is clear and
convincing evidence to support this ground for termination of her parental rights.
                                         - 14 -
                                      V. Best Interests

        When at least one ground for termination of parental rights has been established,
the petitioner must then prove, by clear and convincing evidence, that termination of the
parent’s rights is in the child’s best interest. White v. Moody, 171 S.W.3d 187, 192
(Tenn. Ct. App. 2004). When a parent has been found to be unfit (upon establishment of
ground(s) for termination of parental rights), the interests of parent and child diverge. In
re Audrey S., 182 S.W.3d at 877. The focus shifts to the child’s best interest. Id. at 877.
Because not all parental conduct is irredeemable, Tennessee’s termination of parental
rights statutes recognize the possibility that terminating an unfit parent’s parental rights is
not always in the child's best interest. Id. However, when the interests of the parent and
the child conflict, courts are to resolve the conflict in favor of the rights and best interest
of the child. Tenn. Code Ann. § 36-1-101(d). Further, “[t]he child’s best interest must be
viewed from the child’s, rather than the parent’s, perspective.” White, 171 S.W.3d at
194.

       The Tennessee Legislature has codified certain factors that courts should consider
in ascertaining the best interest of the child in a termination of parental rights case. As is
relevant to the instant case, these factors include, but are 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;

                                             ***

       (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;

                                             ***

       (9) Whether the parent or guardian has paid child support consistent with
       the child support guidelines . . . ;

Tenn. Code Ann. § 36-1-113(i). This Court has noted that “this list [of factors] is not
exhaustive, and the statute does not require a trial court to find the existence of each
enumerated factor before it may conclude that terminating a parent’s rights is in the best
                                         - 15 -
interest of a child.” In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005).
Depending on the circumstances of an individual case, the consideration of a single factor
or other facts outside the enumerated, statutory factors may dictate the outcome of the
best interest analysis. In re Audrey S., 182 S.W.3d at 877. As explained by this Court:

       Ascertaining a child’s best interests does not call for a rote examination of
       each of Tenn. Code Ann. §§ 36-1-113(i)’s nine factors and then a
       determination of whether the sum of the factors tips in favor of or against
       the parent. The relevancy and weight to be given each factor depends on the
       unique facts of each case. Thus, depending upon the circumstances of a
       particular child and a particular parent, the consideration of one factor may
       very well dictate the outcome of the analysis.

White, 171 S.W.3d at 194.

       In its order terminating Appellant’s parental rights, the trial court made the
following findings concerning the child’s best interest:

       The Court specifically finds that this Mother . . . [has] made no changes in
       [her] individual conduct or circumstances that would make it safe for this
       minor child to go home. Mother has continued to have problems with
       stability and in demonstrating a dedication to sobriety due to her use of
       illegal drugs, un-prescribed drugs, and criminal activity. . . . The Mother
       has tested positive for Hydrocodone and Opiates as recently as March of
       [2017], and plead guilty to the manufacture of methamphetamine.

Mother’s own testimony supports the trial court’s finding. In relevant part, Mother
testified that she last used illicit drugs in March 2017. Mother candidly testified that she
had not been able to stay sober consistently and that she has continued to engage in
illegal activities during the pendency of this case. Mother is currently living with her
fiancé (although she admits that she is still legally married to Hayden’s father). Since
Hayden’s removal to state custody, Mother has given birth to another child, and at the
time of the hearing on the petition to terminate her parental rights, Mother was pregnant
with a fourth child. From the record, drug use and criminal activity prevail in the home,
and there is no indication that Mother’s current living situation is in Hayden’s best
interest. In fact, there is evidence that Mother’s environment would pose substantial risk
to the child’s physical and mental welfare.

       The trial court further noted Mother’s failure to support and to visit Hayden.
These findings are well established in the record. Mother testified that she has had no
contact with the child since June 2016 and further admitted that she has made no
payments toward the child’s support.

                                           - 16 -
        The record clearly shows that Hayden is thriving in his current foster placement.
The foster father specifically testified that, although Hayden had severe adjustment issues
at first (i.e., nightmares and sleeping problems), through therapeutic sessions, the child
has overcome these initial issues and is now well-adjusted. Hayden’s DCS caseworker,
Tiffany Robbins, corroborated the foster father’s testimony, stating that Hayden is very
bonded with the foster family. Both the foster father and Ms. Robbins testified that
Hayden never asks about Mother and, when asked, indicates that he does not care about
seeing her. Hayden continues with therapy, which the foster parents ensure he attends.
To remove him from the only stable home he has ever known, would likely cause Hayden
severe psychological and emotional trauma. From the totality of the circumstance, there
is clear and convincing evidence to support the trial court’s finding that termination of
Mother’s parental rights is in the child’s best interest.

                                     VI. Conclusion

        For the foregoing reasons, we reverse the trial court’s termination of Mother’s
parental rights on the ground of abandonment by willful failure to support. We affirm the
trial court’s termination of Mother’s parental rights on the remaining grounds and on its
finding that termination of Mother’s parental rights is in the Children’s best interests.
The case is remanded for such further proceedings as may be necessary and are consistent
with this opinion. Costs of the appeal are assessed to Appellant, Tiffany P. Because
Tiffany P. is proceeding in forma pauperis in this appeal, execution for costs may issue if
necessary.




                                                   _________________________________
                                                   KENNY ARMSTRONG, JUDGE



                                          - 17 -
