In Re: Wesley S.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs February 12, 2013

IN RE WESLEY S.

Appeal from the Juvenile Court for Knox County
No. 13273 Timothy Irwin, Judge

No. E2012-02433-COA-R3-PT - Filed April 9, 2013

This is a termination of parental rights case focusing on Wesley S. (“the Child”), the minor
child of Wesley K.S. (“Father”) and Kari F. (“Mother”). The parents were runaway
teenagers when the Child was born in August 2007. Father was incarcerated several times
during the Child’s first two years. Father’s latest incarceration began on May 14, 2009, and
he has been in jail continuously since that date. The Child was taken into custody by the
Tennessee Department of Children’s Services (“DCS”) on December 17, 2010. On May 31,
2012, DCS filed a petition to terminate the parental rights of Father. The sole ground alleged
was abandonment, based on his conduct prior to incarceration exhibiting a wanton disregard
for the welfare of the Child. Following a bench trial, the trial court granted the petition upon
its finding, by clear and convincing evidence, that Father had abandoned the Child due to his
pre-incarceration conduct. The court further found, by clear and convincing evidence, that
termination was in the Child’s best interest. Father has appealed. We affirm.

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

T HOMAS R. F RIERSON, II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., P.J., and D. M ICHAEL S WINEY, J., joined.

Robin P. Gunn, Knoxville, Tennessee, for the appellant, Wesley K.S.

Robert E. Cooper, Jr., Attorney General and Reporter, and Derek C. Jumper, Assistant
Attorney General, Nashville, Tennessee, for the appellee, Tennessee Department of
Children’s Services.
 OPINION

I. Factual and Procedural Background

Mother and Father were ages seventeen and nineteen respectively when the Child was
born on August 15, 2007. Because Mother had been placed in DCS protective custody at the
time, both parents were “on the run,” staying with various friends and relatives. Father
admitted at trial that each parent had used illegal drugs before, during and after Mother’s
pregnancy. Father also testified that after the Child was born, the couple began residing with
Mother’s brother. Father attempted to work and financially support the family.

On December 13, 2007, when the Child was approximately four months old, Father
was arrested for acting as a “lookout” while two other individuals rummaged through a
vehicle. Father subsequently pled guilty to facilitation of burglary and was released the same
day. On January 2, 2008, Father was arrested for burglary when he attempted to pawn tools
he had stolen from another’s vehicle. Father subsequently pled guilty to theft and spent
approximately one week in jail. Following his release, he was placed on probation.

On March 25, 2008, and again on April 16, 2008, Father stole gasoline by driving
away without paying. He pled guilty to theft and returned to jail on April 20, 2008. Father
remained incarcerated until January 24, 2009. He then served several days in the Blount
County jail for a driving-related charge. Less than one month later, on February 12, 2009,
Father broke into the home of a female friend and assaulted her. On May 11, 2009, Father
entered the home of Mr. Roger Noe and assaulted him, removing cash from his pocket.
Father was arrested for these crimes on May 14, 2009, and has been incarcerated since that
date. On June 2, 2009, Father pled guilty to two counts of aggravated burglary, one count
of aggravated robbery, and one count of assault. All combined, Father received an eight-year
sentence.

The Child was found to be dependent and neglected by Order of the Knox County
Juvenile Court on December 20, 2010. He thereupon was placed in the protective custody
of DCS. The Child has been in foster care continuously since that date. On May 31, 2012,
DCS filed a petition to terminate the parental rights of Father.1 The only ground alleged was
abandonment, with DCS claiming that Father’s conduct prior to incarceration exhibited a
wanton disregard for the welfare of the Child. Following a bench trial, the trial court granted
the petition upon finding, by clear and convincing evidence, that Father had abandoned the
Child due to his pre-incarceration conduct. The court further found, by clear and convincing

1
That petition stated that termination of Mother’s parental rights was being sought through
independent legal proceedings.

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evidence, that termination of his parental rights was in the Child’s best interest. Father filed
a timely notice of appeal.

II. Issues Presented

Father presents the following two issues for our review:

1. Whether the trial court properly concluded that Father, prior to his
incarceration, engaged in conduct that exhibited a wanton disregard for
the welfare of the Child.

2. Whether the trial court properly concluded by clear and convincing
evidence that it was in the best interest of the Child to terminate
Father’s parental rights.

III. Standard of Review

In a termination of parental rights case, this Court has a duty to determine “whether
the trial court’s findings, made under a clear and convincing standard, are supported by a
preponderance of the evidence.” In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). The
trial court’s findings of fact are reviewed de novo upon the record accompanied by a
presumption of correctness unless the evidence preponderates against those findings. Id.;
Tenn. R. App. P. 13(d). Questions of law, however, are reviewed de novo with no
presumption of correctness. In re Bernard T., 319 S.W.3d 586 (Tenn. 2010). The trial
court’s determinations regarding witness credibility are entitled to great weight on appeal,
and shall not be disturbed absent clear and convincing evidence to the contrary. See
McCaleb v. Saturn Corp., 910 S.W.2d 412 (Tenn. 1995).

“Parents have a fundamental constitutional interest in the care and custody of their
children under both the United States and Tennessee constitutions.” Keisling v. Keisling, 92
S.W.3d 374, 378 (Tenn. 2002). It is well established, however, that “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.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct.
App. 1988) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L. Ed.2d 599
(1982)). As our Supreme Court has instructed:

In light of the constitutional dimension of the rights at stake in
a termination proceeding under Tenn. Code Ann. § 36–1–113,
the persons seeking to terminate these rights must prove all the

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 elements of their case by clear and convincing evidence. Tenn.
Code Ann. § 36–1–113(c); In re Adoption of A.M.H., 215
S.W.3d at 808–09; In re Valentine, 79 S.W.3d 539, 546 (Tenn.
2002). The purpose of this heightened burden of proof is to
minimize the possibility of erroneous decisions that result in an
unwarranted termination of or interference with these rights. In
re Tiffany B., 228 S.W.3d 148, 155 (Tenn. Ct. App. 2007); In re
M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005). Clear and
convincing evidence enables the fact-finder to form a firm belief
or conviction regarding the truth of the facts, In re Audrey S.,
182 S.W.3d 838, 861 (Tenn. Ct. App. 2005), and eliminates any
serious or substantial doubt about the correctness of these
factual findings. In re Valentine, 79 S.W.3d at 546; State, Dep’t
of Children’s Servs. v. Mims (In re N.B.), 285 S.W.3d 435, 447
(Tenn. Ct. App. 2008).

In re Bernard T., 319 S.W.3d at 596.

IV. Wanton Disregard

Father argues that the trial court erred in holding that his pre-incarceration conduct
exhibited a wanton disregard for the welfare of the Child. He asserts that his conduct prior
to incarceration did not rise to the level of the wanton disregard standard. Father also
contends that it is significant that he never involved the Child in any of his criminal
endeavors.

The trial court terminated Father’s parental rights on the statutory ground that he
abandoned the child. Tennessee Code Annotated § 36-1-113(g)(1)(Supp. 2012) provides,
as relevant to this action, as follows:

(g) Initiation of termination of parental or guardianship rights may be based
upon any of the grounds listed in this subsection (g). The following grounds
are cumulative and non-exclusive, so that listing conditions, acts or omissions
in one ground does not prevent them from coming within another ground:

(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has
occurred; . . .

Tennessee Code Annotated § 36-1-102(1)(A)(iv) (2010) defines abandonment, in relevant
part, as:

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 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 . . . 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 . . .

(emphasis added). Regarding the ground of abandonment by wanton disregard, the statute
does not limit the parent’s conduct to any particular four-month period prior to incarceration.
In re Audrey S., 182 S.W.3d 838, 865 (Tenn. Ct. App. 2005).

The referenced statute does not define “wanton disregard.” We have previously
explained the purpose behind this statutory section, however, as follows:

Tenn. Code Ann. § 36-1-102(1)(A)(iv) also 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. Incarceration severely
compromises a parent’s ability to perform his or her parental duties. 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. However, parental incarceration is not an infallible predictor of parental
unfitness. Accordingly, Tenn. Code Ann. § 36-1-102(1)(A)(iv)’s second test
for abandonment does not make incarceration alone a ground for the
termination of parental rights. An incarcerated or recently incarcerated parent
can be found guilty of abandonment only if the court finds, by clear and
convincing evidence, that the parent’s pre-incarceration conduct displayed a
wanton disregard for the welfare of the child. Thus, the parent’s 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.

In re Audrey S., 182 S.W.3d at 866 (citations omitted).

On October 25, 2012, the trial court entered its Termination of Parental Rights and
Final Decree of Guardianship, finding in pertinent part, inter alia:

1. When this child was born, his mother was a runaway
from the custody of the Department of Children’s

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 Services. She had turned seventeen just one week
before. Respondent was nineteen. He had also been in
the custody of the Department of Children’s Services
prior to turning eighteen. They had been dating since she
was fifteen and had been on the run during much of this
time. The teenagers sought shelter with various friends
and relatives in Tennessee and in Michigan.

2. The child’s mother had only three prenatal visits and was
using drugs throughout this pregnancy. Respondent was
aware of her drug use and was using with her. He was
present when the child was born and assumed
responsibility for mother and child. They lived together
with her adult brother while Respondent worked to
support his family.

3. On December 13, 2007, when the child was four months
old, Respondent served as a lookout while two others
searched through a victim’s car. He was arrested and
released the same day. Less than one month later, on
January 2, 2008, he burglarized a vehicle, breaking out
the rear window and taking tools which he subsequently
attempted to pawn. He remained in jail that time for a
little more than a week. On January 11, 2008, he entered
a guilty plea to the charge of misdemeanor theft, was
sentenced to “11/29” and released on probation. [Knox
County General Sessions Court, No. 820156]. On March
25, 2008, and again on April 16, 2008, Respondent
committed theft by filling his gas tank and driving off
without paying. He was located and taken into custody
on April 20, 2008. On June 4, 2008, he entered a guilty
plea to the charge of theft and was sentenced to time
served. [Knox County General Sessions Court, No.
832804]. At the same time, probation was revoked on
his prior sentence, he remained in the Knox County
Detention Facility until January 24, 2009, when he was
transferred briefly to Blount County jail on a driving
violation.

4. On February 12, 2009, Respondent broke into the home

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 of Melanie Wade, and assaulted her and another adult in
the home. On May 11, 2009, he broke into the home of
Roger Noe, beat him up and took cash from his pocket.
He was arrested for those crimes on May 14, 2009. On
June 2, 2009, Respondent entered guilty pleas to four
criminal charges arising from those incidents. He
received a sentence of eight years imprisonment for
aggravated robbery and a sentence of three years
imprisonment, to run concurrently, for aggravated
burglary based on the events of May 11, 2009. [Knox
County Criminal Court, Division I, No. 91740, counts 3
and 4]. He also received a sentence of three years
imprisonment for aggravated burglary and a sentence of
eleven months, twenty-nine days imprisonment for
assault, to run concurrently with the previous sentences,
based on the events of February 12, 2009. He has been
incarcerated continuously since May 14, 2009.

5. Respondent last saw this child prior to his imprisonment
in June 2009, when the child was approximately 22
months old. He signed a Voluntary Acknowledgment of
Paternity at the hospital and assumed responsibility for
supporting his son, yet engaged in serious crimes
carrying the likelihood of lengthy incarceration within
months of the child’s birth. Even after spending over
nine months in jail, beginning when his son was eight
months old, he returned almost immediately to a life of
serious, violent crime. He admitted that he was an addict
and that his drug use had contributed to his behavior.
The child is now just over five years old. Due to his
criminal conduct, Respondent has been incarcerated for
all but approximately ten months of the child’s life.

7.2 Upon those facts, the Court finds that Respondent is
currently incarcerated and that prior to his incarceration,
Respondent engaged in conduct which exhibits a wanton
disregard for the welfare of the child.

2
We have maintained the same numbering of paragraphs as reflected by the Trial Court’s Final
Decree.

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 Tennessee Courts have recognized in numerous cases that a parent’s drug abuse and
criminal activity can constitute a wanton disregard for the welfare of the child. In re S.L.A.,
223 S.W.3d 295, 299 (Tenn. Ct. App. 2006); In re Audrey S., 182 S.W.3d at 867-68; In re
Daysia D., M2012-00608-COA-R3-PT, 2012 WL 4503202 at *2 (Tenn. Ct. App. Sep. 28,
2012). For example, in Daysia, the mother was convicted of selling drugs within a school
zone. Id. at *3. Mother admitted at trial that she also smoked marijuana at home while the
children were present, but in a different room. Id. This Court found that such behavior
constituted a wanton disregard for the children’s welfare. Id.

Similarly, in the case of In re Chyna L.M.D., E2012-00661-COA-R3-PT, 2012 WL
3776699 at *1 (Tenn. Ct. App. Aug. 31, 2012), the father was on probation when the child
was conceived. He subsequently violated his probation by failing to appear for court and
testing positive for drugs. Id. The father was offered the opportunity to participate in a
program called “Community Alternatives to Prison Program” or “CAPP,” which would allow
him to complete his sentence in a halfway house and remain in the community with his
girlfriend and child. Id. When the father appeared in court for a hearing, however, he
behaved in such a manner that the “CAPP” offer of enhanced probation was withdrawn. Id.
Consequently, the father’s probation was revoked and he was returned to prison. Id. This
Court found that such conduct was sufficient to establish that the father exhibited a wanton
disregard for the welfare of his unborn child. Id. at *5.

In the case at bar, Father was arrested in December 2007 regarding the first of a string
of criminal charges. The Child was then four months old. His arrest less than a month later
resulted in Father spending a week in jail and being placed on probation. Again, Father was
arrested on April 20, 2008, following two additional theft charges. Father pled guilty to these
charges and returned to jail, where he remained until January 24, 2009. Less than a month
after being released, he committed another crime by breaking into a friend’s home and
assaulting her. Three months later, Father entered Mr. Noe’s home, assaulting and robbing
him. Father subsequently was arrested and convicted. He received an eight-year sentence
of confinement. All of this criminal behavior occurred before the Child was two years of
age.

Father admitted that he was responsible for taking care of the Child and Mother during
the time he embarked upon this crime spree. He testified that he was addicted to drugs, and
that he and Mother were both using drugs. Father also stated that he and Mother used drugs
together before the Child was conceived and during Mother’s pregnancy. As the trial court
found, despite having spent several months in jail during the Child’s first year, Father
committed another crime within one month of being released from custody.

As supported by the record in this cause, Father’s criminal activity increased in

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severity over time. In a previous action addressing a father’s abandonment by wanton
disregard, this Court found it significant that “after Father was aware he had the Child to
consider, the seriousness of his criminal conduct only escalated.” In re Johnny J.E.M.,
E2011-02192-COA-R3-PT, 2012 WL 1929802 at *14 (Tenn. Ct. App. May 29, 2012). In
the present action, Father first served as a “lookout” while others burglarized a vehicle. He
later burglarized a vehicle himself and stole gasoline from business establishments. After
his release following a nine-month prison sentence, Father soon committed another crime,
which proved more serious in nature. Father continued his criminal activities approximately
three months later. Consequently, he was given an eight-year sentence. Father remained
incarcerated at the time of trial.

We conclude that Father clearly engaged in conduct prior to his incarceration that
exhibited a wanton disregard for the welfare of the Child. Father knew he was responsible
for the welfare of the Child but failed to take such into consideration. He instead chose to
embark upon a course of continuing criminal activity. The evidence does not preponderate
against the trial court’s determination, by clear and convincing evidence, that Father
“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).

Father further argues that it is significant that he never involved the Child in any of
his criminal behavior. The crimes that lead to a parent’s incarceration are not the only
conduct the court may consider in its determination of wanton disregard. Rather, the court
may consider conduct such as “probation violations, repeated incarceration, criminal
behavior, substance abuse, and the failure to provide adequate support or supervision for a
child.” In re D.M., M2009-00340-COA-R3-PT, 2009 WL 2461199 at *4 (Tenn. Ct. App.
Aug. 12, 2009). We hold that the trial court did not err in terminating Father’s parental rights
on this ground. See, e.g., In re Johnny J.E.M., 2012 WL 1929802 at *13-14.

V. Best Interest of Child

Finally, Father contends that DCS failed to show, by clear and convincing evidence,
that termination of his parental rights was in the Child’s best interest. When at least one
ground for termination of parental rights has been established, as here, 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. 1994). When
a parent has been found to be unfit by establishment of a ground for termination, the interests
of parent and child diverge, and the focus shifts to what is in the child’s best interest. In re
Audrey S., 182 S.W.3d 877.

Tennessee Code Annotated § 36-1-113(i) (Supp. 2012) provides a list of factors the

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trial court is to consider when determining if termination is in the child’s best interest. This
list is not exhaustive, and the statute does not require the court to find the existence of every
factor before concluding that termination is in a child’s best interest. In re Audrey S., 182
S.W.3d at 878. Further, the best interest of a child must be determined from the child’s
perspective and not the parent’s. White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App.
2004).

Tennessee Code Annotated § 36-1-113(i) lists the following factors for consideration:

(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;

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 (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.

In the instant action, the trial court considered the above factors, making the following
relevant findings:

1. Respondent testified that he has completed multiple
programs and courses during his confinement, including
obtaining his GED and passing two college-level classes
through U.T. Martin. He has been sober for more than
three years. He anticipates “without a doubt” that he will
be released when he comes up for parole again in May
2013. At that point he plans to return to his mother’s
home. His counsel argued that he wants the opportunity
to meet his son again and that there would be no harm
from further delay as the child is in a safe placement.
Due to his own conduct, Respondent has not been able to
maintain regular visitation or other contact with the child
and no relationship at all has otherwise been established
between Respondent and the child. The Court applauds
Respondent’s exemplary records while incarcerated. He
has obviously used his time well. But whether he has
actually made such an adjustment of circumstance,
conduct, or conditions as to make it safe and in the
child’s best interest to be in his home simply cannot be
determined. He currently has no home. He says he has
changed his life, he says he will be released next May, he
says he will then be a law-abiding citizen with a suitable
home and a job, but right now that is all speculation.
Asking this child to wait on that possibility is not in his
best interest. The child is in a wonderful foster home
where he has the opportunity to achieve permanency
through adoption and be raised with his younger half-

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 sister, with whom he is very bonded. The Court has
observed the two children with their foster mother and
noted their attachment to each other and to her. A
change of caretakers and physical environment
(including a separation from his half-sister) is likely to
have a detrimental effect on the child’s emotional and
psychological well-being. Respondent is certainly an
individual who has shown neglect toward this child and,
through his drug use with the mother during her
pregnancy, contributed to this child’s long-term
disadvantages. He engaged in criminal activity and
substance abuse while claiming to be committed to the
care of his son. And, finally, due to his incarceration he
has been unable to provide any child support.

2. The child’s mother has surrendered her parental rights.

3. The Department of Children’s Services has made
reasonable efforts toward achieving permanency for this
child.

4. The child is entitled to a safe, secure and loving home
and, as noted above, has found one with his current foster
parents.

5. It is, therefore, in the best interest of [the Child] and the
public that all of Respondent’s parental rights to this
child be terminated and the complete custody, control,
and full guardianship of the child be awarded to the State
of Tennessee, Department of Children’s Services, with
the right to place him for adoption and to consent to such
adoption in loco parentis.

The evidence preponderates in favor of the trial court’s factual findings. Father was
not able to show that he had made an adjustment of circumstance such that it would be safe
for the Child to be in his home. Father did testify that he had received his GED in jail,
completed two college-level courses, a program that focused on life skills and substance
abuse issues, and two anger resolution seminars. Father also indicated that he was eligible
for parole in May 2013. He admitted, however, that he had been considered for parole twice
before, but had not been released.

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 Father further indicated that he desired to get to know the Child and teach him to
avoid a life of crime and drugs. However, Father also admitted that he knew little about the
Child. Due to his incarceration, Father had not maintained contact, visited or provided
support regarding the child. The proof established that at the time of trial there existed no
meaningful relationship between Father and Child.

Both the foster mother and the guardian ad litem stated during trial that it would be
devastating for the Child to be separated from his half-sister, because the children maintained
such a close relationship. The guardian ad litem further testified that the Child was thriving
in his foster home. The foster mother stated that she was prepared to adopt both children and
provide a home for them together. Further, the trial court noted that it had observed both
children with the foster mother, and that the children were obviously quite bonded to each
other as well as with her.

The evidence further supports the trial court’s determination that Father has shown
neglect toward the Child. Father admitted that he and Mother were on the run when the
Child was born, and that both were using drugs. Father testified that he was first arrested
when the Child was about four months old. Father also admitted that he was guilty of all of
the crimes for which he was charged. Due to his continuing criminal activity, Father’s
incarceration continued for all but approximately ten months of the Child’s life.

From our examination of the record before us, we determine that there is clear and
convincing evidence that termination of the Father’s parental rights was in the Child’s best
interest.

VI. Conclusion

The judgment of the trial court terminating the parental rights of Father is affirmed.
Costs on appeal are taxed to appellant, Wesley K.S. This case is remanded to the trial court,
pursuant to applicable law, for enforcement of the trial court’s judgment and collection of
costs assessed below.

__________________________________________
THOMAS R. FRIERSON, II, JUDGE

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