In Re: Maria B.S.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
March 4, 2013 Session

IN RE: MARIA B. S. ET AL.

Appeal from the Circuit Court for Knox County
No. 3-410-10 Wheeler Rosenbalm, Judge

No. E2012–01295-COA-R3-PT - Filed April 1, 2013

Matthew V. and Carlene V. (“the Foster Parents”) filed a petition in the Circuit Court for
Knox County (“the Trial Court”) seeking to terminate the parental rights of Lewis S.
(“Father”), father to the minor twin children Maria B. S. and Anna J. S. (“the Children”).
After a trial, the Trial Court terminated Father’s parental rights to the Children after finding
that grounds for termination pursuant to Tenn. Code Ann. §§ 36-1-113 (g)(1), (g)(3), and
(g)(9) had been proven by clear and convincing evidence, and that clear and convincing
evidence had been shown that it was in the Children’s best interest for Father’s parental
rights to be terminated. We affirm as modified.

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

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

Robin Gunn, Knoxville, Tennessee, for the appellant, Lewis S.

N. David Roberts, Jr., Knoxville, Tennessee, for the appellees, Matthew V. and Carlene V.
 OPINION

Background

The Children, twin girls, were born in January 2010. The Children’s mother,
Kimberly S. (“Mother”), was incarcerated at the time of their birth. Mother was brought to
the hospital temporarily for the birth of the Children. The Children soon thereafter were
removed by the Department of Children’s Services (“DCS”) based on dependency and
neglect. Mother later voluntarily surrendered her parental rights to DCS. DCS placed the
Children with the Foster Parents in February 2010, while DCS retained legal custody of the
Children pursuant to court order. In August 2010, the Foster Parents filed a petition to adopt
the Children and to terminate Father’s parental rights. This matter was tried in July 2011.

Father, age 43, testified first. Father gave his testimony remotely from prison.
Father had been unemployed since 2007. Father acknowledged having a lengthy criminal
history, including assaults, DUIs, and drug charges. Father stated that he would be released
from incarceration in three months. Before he went to prison in August 2009, Father
subsisted on Social Security disability payments of $674 per month. Father’s disabilities
were a steel pin in his leg, steel plates in his wrist, and bipolar disorder. The disability
checks stopped when Father was incarcerated. Father stated that he would try to regain his
disability payments upon his release. Father stated that when he was released, he would stay
with relatives until he got situated. Father testified that his old landlord would let him have
his old place back and that Father learned this through his sister.

Continuing with his testimony, Father elaborated on his background. Father
had a relationship with Mother for about six months. Father began seeing Mother while he
was married to another woman. Father learned Mother was pregnant around April 2009.
Father went to prison after having assaulted another one of his girlfriends in a parking lot
while Mother was pregnant. This girlfriend had an order of protection against Father. Father
testified that he knew the order of protection was still in effect when he beat the girlfriend.
Father further acknowledged that in 1997, his mother took out an order of protection against
him. As to any other offspring, Father testified that he might be the father of twin males born
in the 1980s. Father never took any steps to investigate or assert his paternity to the twin
males.

Father had written no letters to DCS inquiring about the Children, who suffered
from a variety of health ailments including, according to Father, allergies and Hepatitis C.
Father did not make phone calls to ask about the Children either. Father did, however,
manage to make some calls to his sister.

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 Father testified about his commissary account. When he worked, Father was
paid approximately $20 per month. Father worked from three to twelve months. Father sent
none of that money to the Children. Father stated “I guess I could have sent ten dollars a
month [to the Children]” but “I don’t know the process of sending it out, really.” Father
testified that he never asked about how to send money to the Children. Father stated that he
did take a child support education program while incarcerated.

Father stated that he learned the results of a DNA test verifying his paternity
of the Children sometime around July 2010. Father took no steps to have himself declared
as the legal father of the Children, but he stated that DCS never helped him with any steps.
Father stated that he asked perhaps “once” about it. As of trial, Father’s name still was not
on the Children’s birth certificates. Father testified that he told DCS he wanted custody of
the Children, or, in the alternative, for his sister to have custody until he could get
established. Father testified that his sister already had four children living in her home and
that she was a single mother.

Jessica Hume (“Hume”), a foster care worker, testified. Hume had worked the
Children’s case since January 2010, beginning soon after the Children’s birth. Hume
testified that Mother did not even name the Children, and DCS brought them into its custody.
The Children were placed with the Foster Parents. Mother initially declined to identify the
father of the Children. Hume first learned of Father in May 2010 when Father’s sister
informed her of her suspicion that Father was the Children’s father. Hume met with Father
a number of times. Father told Hume that he wanted his sister to have custody of the
Children while he established himself. Hume reviewed a permanency plan with Father.
Father, for his part, sent Hume a certificate showing that he completed an anger management
course. Hume testified that the Children are doing well with the Foster Parents. In 2010, a
home study was done on Father’s sister’s home, which yielded a favorable conclusion.
Hume testified that Father had provided nothing to her prior to trial about housing for the
Children.

In August 2011, the Trial Court entered an order terminating Father’s parental
rights. Father appealed, arguing that the Trial Court’s order lacked specificity as to which
grounds for termination were found. This Court, in In re Maria B. S., E2011-01784-COA-
R3-PT, 2012 WL 1431244 (Tenn. Ct. App. April 25, 2012), no appl. perm. appeal filed, inter
alia, remanded this case to the Trial Court with instructions for it to enter an order clearly
specifying which grounds for termination were found.

In June 2012, following our Opinion, the Trial Court entered a thorough and
detailed order terminating Father’s parental rights to the Children pursuant to Tenn. Code
Ann. §§ 36-1-113 (g)(1), (g)(3), and (g)(9). The Trial Court found, by clear and convincing

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evidence, eight distinct grounds for termination. We quote extensively from the Trial Court’s
detailed order, in relevant part:

[Abandonment – Tenn. Code Ann. § 36-1-113 (g)(1)]
[1. Tenn. Code Ann. § 36-1-102 (1)(A)(i) – willful failure to support]

24. During the four months preceding the filing of the petition from April 12,
2010 until August 12, 2010, [Father] contributed not a single penny towards
the support of the children. Moreover, he did nothing towards positioning
himself to discharge his obligation to care for and support the children. He
was told by the mother early in her pregnancy that he was the father. Yet the
department, not [Father], undertook to arrange the DNA testing following their
birth to determine his parentage of the twins. He is presumed by law to have
knowledge of his responsibilities to the children yet did nothing.
25. The July, 2010 permanency plan provided that: the parent (father) will
make a good faith payment of $40.00 per month which needs to be sent to:
Central Child Support Receipting Unit, P.O. Box 305200, Nashville, TN
37229. A telephone number of 862-0366 was also provided. Despite the legal
obligation to pay support and the permanency plan requirement of a good faith
effort at providing support nothing was done.
26. Despite his support obligation, [Father] contributed not one single penny
towards the support of his children. He is presumed by law to have knowledge
of his responsibilities to these children, and in fact, while incarcerated, he took
a class and received a certificate for child support education. To do nothing
as he did, after being educated about his obligations, clearly and convincingly,
demonstrates that [Father’s] failure to support his children was willful. From
[Father’s] testimony, his sole excuse for not contributing towards the support
of his children was that he did not know where to send the money. In the
opinion of the Court that excuse is entitled to no weight or credibility. The
Court regards [Father’s] excuse as an afterthought.

***

[2. Tenn. Code Ann. § 36-1-102 (1)(A)(ii) –
failure to provide a suitable home]

28. The evidence also establishes, clearly and convincingly, that [Father]
abandoned his children within the meaning of Tenn. Code Ann. § 36-1-
102(1)(A)(ii). The children in this case were born on January 1, 2010. At the
time of their birth, their mother and their father were both incarcerated.

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 [Father] was in a prison in Morgan County, and the mother was in jail in Knox
County. The children’s mother was taken to the hospital from jail to give birth
to the children and was immediately returned to jail. At the time of their births
she declared that she did not want the children and shortly after their birth,
upon her release from jail, she surrendered them to the department. Upon the
department’s petition filed for custody, the children were declared dependent
and neglected by the Knox County Juvenile Court on February 24, 2010 and
placed into foster care. The mother had told [Father] that she was pregnant
with his children in April, 2009 but [Father] was not further identified as the
father until May, 2010 when [Father’s] sister advised the department that she
thought that her brother, [Father], was possibly the father of the children. The
department requested that [Father] submit to DNA testing. The DNA report
results are dated July 3, 2010. Upon receipt of the evidence establishing
[Father] as the father the department contacted [Father] in prison and
undertook to help him discharge his responsibilities as the children’s father
including establishing himself as their legal parent. The department’s worker
provided [Father] with a permanency plan and a copy of the Criteria &
Procedures for Termination of Parental Rights which he acknowledged with
his signature on July 15, 2010. At the last meeting with the father at the prison
in July, 2011, she left an open invitation with [Father] to enable him to contact
her when he needed any assistance in performing those tasks that were
outlined in the permanency plan that the department has developed for him.
29. On January 24, 2011, [Father] sent the case worker a certificate indicating
that he has completed an anger management class on June 24, 2010.
Otherwise, the department did not hear from [Father]. He has done absolutely
nothing to indicated [sic] that he is concerned about being a suitable parent to
his children and providing them with a suitable home.

30. The Court finds, based upon clear and convincing evidence, that [Father] has
demonstrated a lack of concern for his children to such degree that [it] appears unlikely that
he will be able to provide a suitable home for them at any time. The department’s efforts to
assist [Father] exceeded the efforts he made to comply with the permanency plan.

***

[3. Tenn. Code Ann. § 36-1-102 (1)(A)(iv) – wanton disregard]

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33. Even prior to the birth of his children, [Father] had a long history of
criminal offenses and prior jail and prison incarcerations that involved
domestic violence and aggravated assault, including court orders of protection
against him, drug offenses, public intoxication, driving under the influence,
and conviction as a habitual motor vehicle offender. [Father] was made aware
early in his girlfriend’s pregnancy that she believed that he was the father.
With this information, a reasonable person would have begun preparations to
become a parent. Instead of preparing to become a father, [Father]
reconnected with a past girlfriend, a girlfriend who held an active order of
protection against him. In the process of reestablishing this other relationship
he violated the active order of protection by committing an assault against her
and again became incarcerated and was sent to prison. As a result of those
actions and his incarceration the birth mother became homeless during the
remainder of her pregnancy and was living on the streets. During that time she
resumed engaging in prostitution to support herself. At the time of the birth
of the children she was in jail on a pending prostitution charge. Upon their
birth the mother abandoned the children at the hospital without naming them
and subsequently surrendered them to the Dept. of Children’s Services for
adoption. These events were all a direct consequence of the alleged father’s
actions. Clearly this conduct evidences a wanton disregard for the welfare of
the children.
34. However, once incarcerated and after DNA proof of his parentage was
provided to him by the department, [Father] gained a second opportunity to
prepare himself to be a parent. The DCS worker arranged to meet with him on
three (3) occasions in order to assist him in preparing for providing a home for
his children upon his release . . . Despite her offers of assistance [Father] only
made a single communication back to her, that communication being the
mailing to her of a single prison class completion certificate. No letters were
sent to the department or to the children from [Father] . . . .

***

[Persistent Conditions]
[4. Tenn. Code Ann. § 36-1-113 (g)(3) – persistent conditions]

41. As noted previously, [Father] made no preparation before the birth of the
children to act as parent. On the contrary he abandoned the mother and acted
in a manner that led to incarceration. Following his incarceration, [Father]
again made little meaningful effort to prepare to act as a parent for the children
or to prepare upon his release from prison to assume the role of a responsible

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parent. The conditions which led to the removal of the children, resulting in
them being declared dependent and neglected, continue to exist, and [Father]
has made no progress towards the remedying of those conditions and preparing
to parent the children upon his release from prison, and his lack of progress is
preventing the children from being placed in a permanent, safe and stable
adoptive home.

***
[Grounds Pertaining to Putative Fathers –
Tenn. Code Ann. § 36-1-113 (g)(9)]

[5. Tenn. Code Ann. § 36-1-113 (g)(9)(A)(ii) –
failure to make reasonable payments]

In this case, the alleged father testified that he earned money from
employment while incarcerated, that he did not make any attempt to supply any
of those funds to the State of Tennessee, to assist in the care of his children,
and that he did not consult with the DCS worker about assisting him in
remitting child support payments for the benefit of his children. Further, the
address for making child support payments for his children was contained in
the permanency plan developed for the children by DCS and supplied to the
alleged father by the DCS worker. As already discussed above, [Father] gave
no sufficient legal reason or excuse for his willful failure to support his
children with the resources available to him. [Father] never paid a penny
towards the support and maintenance of his children.

***

[6. Tenn. Code Ann. § 36-1-113 (g)(9)(A)(iv) – failure to
manifest an ability and willingness to assume
legal and physical custody of the child]

The department gave [Father] written guidelines concerning the legal
grounds to terminate parental rights. In this case, the department instituted the
DNA testing upon the alleged father and determined that the alleged father
was, in fact, the biological father of the children. The department than gave
him that information. The alleged father never acted upon the information and
never undertook any steps, even after being appointed legal counsel, to pursue
the establishment of a legal relationship with the children. The alleged father
testified that his plan of care for the children before his release and after his

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release, until he could get on his feet, would be through his sister, or through
other relatives. However, none of the alleged father’s relatives intervened in
the adoption proceeding, even though his sister did testify on his behalf at trial.
His actions in regard to these two female twin children are consistent with his
actions related to prior alleged twin male children, now grown, that [Father]
suspected were his. In the same manner as the girl twin children, he never
undertook to determine if the male twins were his or to establish any legal
relationship with those twin boys that he, and his family, suspected were his.
Although he maintained some type of relationship with them, it does not
appear that is rose to the level of a parental relationship. [Father] has willfully
failed to pursue the opportunity to be a responsible parent and father not only
once during his lifetime, but now twice.

***

[7. Tenn. Code Ann. § 36-1-113 (g)(9)(A)(v) – placing custody
of the child with the parent would pose risk of substantial harm
to physical or psychological welfare of child]

In this case, the alleged father has a history of criminal charges, drug
charges, and domestic violence charges, including the violation of an order of
protection that sent him to prison. Both children were born with hepatitis C,
and suffer from serious health issues. The alleged father has not shown
himself to be capable of caring for children that have special needs, which
includes regular medical care. The alleged father does not possess a valid
driver’s license which would enable him to provide transportation to the
children’s numerous medical appointments. Although he testified that his
family would be supportive of him and would assist him with raising the twins,
only his sister appeared at the trial and testified. The sister did not intervene
in the proceedings, nor did any other relative.

***

[8. Tenn. Code Ann. § 36-1-113 (g)(9)(A)(vi) – failure to
establish paternity within thirty days of notice of
alleged paternity by the child’s mother]

In this case, the birth mother had made the alleged father aware of her
pregnancy early on and the likelihood that he was the father. The Dept. of
Children’s Services subsequently conducted DNA testing and determined that

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 the alleged father was the biological father of the children. Despite his
knowledge of these facts, the respondent never sought to establish a legal
relationship with the children. Even when appointed legal counsel, [Father]
did not pursue the establishment of any legal relationship with the children.
(internal citations omitted)

The Trial Court also found, by clear and convincing evidence, that it was in the Children’s
best interest that Father’s parental rights be terminated, stating in part:

(d) There was unrefuted testimony that the children are bonded to [the Foster
Parents], the prospective adoptive parents, and that the children have been well
cared for in their home, including the meeting of their severe and special
medical needs. The children have not lived with any other family since
placement with [the Foster Parents] in February, 2010. The children are now
more than two years old. Any change to their placement could be detrimental
to their physical and/or emotional health. The children are doing well in [the
Foster Parents’] home, especially when considering their traumatic starts in
life. There was no negative testimony about [the Foster Parents’] home, about
their placement there or any question about their commitment to these
children. Instead the proof is clear and convincing that this is a loving and
appropriate home for these children.
(e) The Court finds that the alleged father comes before the Court with a
history of personal problems and issues. Prior to these children’s birth [Father]
failed to determine his possible parentage to two other male twin children
despite personal and family suspicions that they were his children. Although
under treatment now, [Father] claims to suffer bi-polar mental illness and
certain disabilities which prevents him from working. Although he plans to
try and re-establish his disability income after his release from prison it is
unknown if he will be successful in doing so. Upon his release from prison,
[Father] will not possess a valid driver’s license and without such managing
his children’s illnesses and numerous medical appointments will be extremely
difficult. Although the alleged father testified that he would utilize his
relatives to care for his children during his absence and upon his release from
prison, no relative of the alleged father sought to intervene in this [sic]
proceedings, including the sister who testified on his behalf.

Father timely appealed to this Court.

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 Discussion

We consolidate the issues Father raises on appeal as follows: 1) whether the
Trial Court erred in erred in finding and holding that clear and convincing evidence existed
to terminate his parental rights to the Children pursuant to Tenn. Code Ann. § 36-1-
113(g)(1); 2) whether the Trial Court erred in finding and holding that clear and convincing
evidence existed to terminate his parental rights to the Children pursuant to Tenn. Code Ann.
§ 36-1-113(g)(3); and, 3) whether the Trial Court erred in finding and holding that clear and
convincing evidence existed to terminate his parental rights to the Children pursuant to Tenn.
Code Ann. § 36-1-113(g)(9). While Father does not raise this issue, we nevertheless will
address whether the Trial Court erred in finding by clear and convincing evidence that it was
in the Children’s best interest for Father’s parental rights to be terminated.

Our Supreme Court reiterated the standard of review for cases involving
termination of parental rights stating:

This Court must review findings of fact made by the trial
court de novo upon the record “accompanied by a presumption
of the correctness of the finding, unless the preponderance of the
evidence is otherwise.” Tenn. R. App. P. 13(d). To terminate
parental rights, a trial court must determine by clear and
convincing evidence not only the existence of at least one of the
statutory grounds for termination but also that termination is in
the child's best interest. In re Valentine, 79 S.W.3d 539, 546
(Tenn. 2002) (citing Tenn. Code Ann. § 36-1-113(c)). Upon
reviewing a termination of parental rights, this Court's duty,
then, is 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).

In Department of Children’s Services v. D.G.S.L., this Court discussed the
relevant burden of proof in cases involving termination of parental rights stating:

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

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 terminated if there is clear and convincing evidence justifying
such termination under the applicable statute.” Id. (citing
Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d
599 (1982)).

Termination of parental or guardianship rights must be
based upon a finding by the court that: (1) the grounds for
termination of parental or guardianship rights have been
established by clear and convincing evidence; 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). Before
a parent’s rights can be terminated, it must be shown that the
parent is unfit or substantial harm to the child will result if
parental rights are not terminated. In re Swanson, 2 S.W.3d
180, 188 (Tenn. 1999); In re M.W.A., Jr., 980 S.W.2d 620, 622
(Tenn. Ct. App. 1998). Similarly, before the court may inquire
as to whether termination of parental rights is in the best
interests of the child, the court must first determine that the
grounds for termination have been established by clear and
convincing evidence. Tenn. Code Ann. § 36-1-113(c).

Dep’t of Children’s Servs. v. D.G.S.L., No. E2001-00742-COA-R3-JV, 2001 Tenn. App.
LEXIS 941, at **16-17 (Tenn. Ct. App. Dec. 28, 2001), no appl. perm. appeal filed. Clear
and convincing evidence supporting any single ground will justify a termination order. E.g.,
In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

Regarding abandonment, Tenn. Code Ann. § 36-1-113 (g) provides:

(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;

Tenn. Code Ann. § 36-1-113 (g)(1) (Supp. 2012). As pertinent to this appeal, Tenn. Code
Ann. § 36-1-102 provides:

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

(i) For a period of four (4) consecutive months immediately preceding
the filing of a proceeding or pleading to terminate the parental rights of the
parent(s) or guardian(s) of the child who is the subject of the petition for
termination of parental rights or adoption, that the parent(s) or guardian(s)
either have willfully failed to visit or have willfully failed to support or have
willfully failed to make reasonable payments toward the support of the child;

(ii) The child has been removed from the home of the parent(s) or
guardian(s) as the result of a petition filed in the juvenile court in which the
child was found to be a dependent and neglected child, as defined in § 37-1-
102, and the child was placed in the custody of the department or a licensed
child-placing agency, that the juvenile court found, or the court where the
termination of parental rights petition is filed finds, that the department or a
licensed child-placing agency made reasonable efforts to prevent removal of
the child or that the circumstances of the child’s situation prevented reasonable
efforts from being made prior to the child’s removal; and for a period of four
(4) months following the removal, the department or agency has made
reasonable efforts to assist the parents(s) or guardian(s) to establish a suitable
home for the child, but that the parent(s) or guardian(s) have made no
reasonable efforts to provide a suitable home and have demonstrated a lack of
concern for the child to such a degree that it appears unlikely that they will be
able to provide a suitable home for the child at an early date. The efforts of the
department or agency to assist a parent or guardian in establishing a suitable
home for the child may be found to be reasonable if such efforts exceed the
efforts of the parent or guardian toward the same goal, when the parent or
guardian is aware that the child is in the custody of the department;

***

(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

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 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;
or . . . .

***

(D) For purposes of this subdivision (1), “willfully failed to support” or
“willfully failed to make reasonable payments toward such child’s support”
means the willful failure, for a period of four (4) consecutive months, to
provide monetary support or the willful failure to provide more than token
payments toward the support of the child; . . . .

Tenn. Code Ann. § 36-1-102 (1) (2010).

Tenn. Code Ann. § 36-1-113(g)(3), the ground concerning persistent
conditions, provides:

(3) The child has been removed from the home of the parent or guardian by
order of a court for a period of six (6) months and:
(A) The conditions that led to the child’s removal or other conditions
that in all reasonable probability would cause the child to be subjected to
further abuse or neglect and that, therefore, prevent the child’s safe return to
the care of the parent(s) or guardian(s), still persist;
(B) There is little likelihood that these conditions will be remedied at
an early date so that the child can be safely returned to the parent(s) or
guardian(s) in the near future; and
(C) The continuation of the parent or guardian and child relationship
greatly diminishes the child’s chances of early integration into a safe, stable
and permanent home;

Tenn. Code Ann. § 36-1-113(g)(3) (Supp. 2012).

As to the grounds for termination of parental rights concerning putative fathers,
Tenn. Code Ann. § 36-1-113 (g)(9) provides:

(9)(A) The parental rights of any person who, at the time of the filing of a
petition to terminate the parental rights of such person or, if no such petition
is filed, at the time of the filing of a petition to adopt a child, is not the legal
parent or guardian of such child or who is described in § 36-1-117(b) or (c)

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 may also be terminated based upon any one (1) or more of the following
additional grounds:

(i) The person has failed, without good cause or excuse, to pay a reasonable
share of prenatal, natal, and postnatal expenses involving the birth of the child
in accordance with the person's financial means promptly upon the person's
receipt of notice of the child's impending birth;

(ii) The person has failed, without good cause or excuse, to make reasonable
and consistent payments for the support of the child in accordance with the
child support guidelines promulgated by the department pursuant to §
36-5-101;

(iii) The person has failed to seek reasonable visitation with the child, and if
visitation has been granted, has failed to visit altogether, or has engaged in
only token visitation, as defined in § 36-1-102(1)(C);

(iv) The person has failed to manifest an ability and willingness to assume
legal and physical custody of the child;

(v) Placing custody of the child in the person's legal and physical custody
would pose a risk of substantial harm to the physical or psychological welfare
of the child; or

(vi) The person has failed to file a petition to establish paternity of the child
within thirty (30) days after notice of alleged paternity by the child's mother,
or as required in § 36-2-318(j), or after making a claim of paternity pursuant
to § 36-1-117(c)(3); . . . .

Tenn. Code Ann. § 36-1-113 (g)(9)(A) (Supp. 2012).

We now address whether the Trial Court erred in finding and holding that clear
and convincing evidence existed to terminate Father’s parental rights to the Children
pursuant to Tenn. Code Ann. § 36-1-113(g)(1). Specifically, the Trial Court found three
distinct grounds of abandonment: willful failure to support, failure to provide a suitable
home, and wanton disregard.

From our review of the record, Father has been immensely uninvolved in the
lives of the Children, to say the least. We are cognizant that Father was incarcerated from
the time of the Children’s birth through trial, but, even in light of that enormous obstacle,

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Father was glaringly detached from the Children’s lives. Remarkably, Father testified that
he earned money in prison and could have sent some small amount for the Children’s support
but never sent any to the Children because he did not know how. Father never bothered to
inquire as to how. We agree with the Trial Court that Father’s excuse is a mere
“afterthought.” Having earned only around twenty dollars per month in prison, it would be
understandable if Father’s contributions to supporting the Children were quite small.
However, Father’s failure to provide any support to the Children despite having earned at
least some small amount of money, and, with no credible explanation as to why he failed
even to attempt to fulfill this basic parental duty, demonstrates willful failure to support.

With respect to failure to provide a suitable home, we note that the Children
were not removed from Father’s home. Moreover, the Trial Court’s order with respect to this
issue generally does not track the relevant statutory language. We acknowledge the
impediment posed by prison to Father establishing a suitable home for the Children. From
the record before us, and despite his general non-involvement with the Children, we cannot
conclude that the Foster Parents met their burden with respect to the ground of failure to
provide a suitable home by clear and convincing evidence.

Finally with respect to abandonment there is the ground of wanton disregard.
As this Court stated in In re: Audrey S.: “We have repeatedly held that probation violations,
repeated incarceration, criminal behavior, substance abuse, and the failure to provide
adequate support or supervision for a child can, alone or in combination, constitute conduct
that exhibits a wanton disregard for the welfare of a child.” In re: Audrey S., 182 S.W.3d
838, 867-68 (Tenn. Ct. App. 2005). With regard to this ground, the most pertinent fact in the
record is that of Father’s assault on his former girlfriend. Father admitted to striking this
former girlfriend, despite her having an order of protection against him, and, additionally,
despite Mother’s being pregnant with the Children. While the Children were not yet born
at the time of this assault, these acts by Father led to his incarceration which created a serious
barrier to his fulfilling his duties as a parent to the Children. Father’s assault resulting in his
incarceration represents wanton disregard for the welfare of the Children.

From our review of the record before us, we find that the Trial Court’s
findings, apart from those concerning the ground of failure to establish a suitable home, made
under the clear and convincing standard as relevant to this issue of abandonment are
supported by a preponderance of the evidence. The Trial Court did not err in finding and
holding that clear and convincing evidence existed that grounds were proven to terminate
Father’s parental rights to the Children pursuant to Tenn. Code Ann. § 36-1-113 (g)(1) and
Tenn. Code Ann. § 36-1-102 (1)(A)(i) and (iv).

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 We next address whether the Trial Court erred in finding and holding that clear
and convincing evidence existed to terminate Father’s parental rights to the Children
pursuant to Tenn. Code Ann. § 36-1-113(g)(3). Father argues that this ground could not be
applied to his case as the Children were not removed from his home by order of a court.
“The child has been removed from the home of the parent or guardian by order of a court.
. . .” Tenn. Code Ann. § 36-1-113 (g)(3) (Supp. 2012).

We agree with Father as to this issue. Father was incarcerated at the time of
the Children’s birth. No one removed the Children from Father–he never had the Children
in the first place. There is case precedent to support Father’s position that, without removal
from that parent’s home, the ground of persistent conditions is inapplicable. See In re T.L.,
No. E2004-02615-COA-R3-PT, 2005 WL 2860202, at *7 (Tenn. Ct. App. Oct. 31, 2005),
Rule 11 appl. perm. appeal denied Feb. 17, 2006; In re D.L.B., No. W2001-02245-COA-R3-
CV, 2002 WL 1838147, at *9 (Tenn. Ct. App. Aug. 6, 2002), rev’d on other grounds, 118
S.W.3d 360 (Tenn. 2003); In re B.P.C., M2006-02084-COA-R3-PT, 2007 WL 1159199, at
*7 (Tenn. Ct. App. April 18, 2007), no appl. perm. appeal filed. The Foster Parents offer no
compelling counterargument, and we decline to depart from this precedent. The Trial Court
erred in finding and holding that clear and convincing evidence exists to terminate Father’s
parental rights under the ground of persistent conditions.

We next address whether the Trial Court erred in finding and holding that clear
and convincing evidence existed to terminate Father’s parental rights to the Children
pursuant to Tenn. Code Ann. § 36-1-113(g)(9). The facts relevant to the grounds under this
part are clear. Father never has established his paternity of the Children in law.
Nevertheless, Father has been aware of his paternity of the Children since early 2009.
Despite earning some small amount of money in prison, Father has failed to remit any
amount of support to the Children. Father has not communicated with the Children. Father
has done virtually nothing of substance towards becoming a proper parent. On appeal, and
throughout this case, Father has asserted that his sister can take care of the Children while
he establishes himself in society. This, however, simply does not pass muster. Father has
shown zero ability to care for the Children, and his claimed willingness to do so rings hollow.

From our review of the record before us, we find that the Trial Court’s findings
made under the clear and convincing standard as relevant to this issue are supported by a
preponderance of the evidence. The Trial Court did not err in finding and holding that clear
and convincing evidence existed that grounds were proven to terminate Father’s parental
rights to the Children pursuant to Tenn. Code Ann. § 36-1-113 (g)(9) (ii), (iv), (v), and (vi).

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 Finally, we address whether the Trial Court erred in finding by clear and
convincing evidence that it was in the Children’s best interest for Father’s parental rights to
be terminated. As pertinent to this issue, Tenn. Code Ann. § 36-1-113 (i) provides:

(i) In determining whether termination of parental or guardianship rights is in
the best interest of the child pursuant 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, controlled substances or controlled substance
analogues as may render the parent or guardian consistently unable to care for
the child in a safe and stable manner;
(8) Whether the parent's or guardian's mental and/or emotional status would
be detrimental to the child or prevent the parent or guardian from effectively
providing safe and stable care and supervision for the child; or
(9) Whether the parent or guardian has paid child support consistent with the
child support guidelines promulgated by the department pursuant to §
36-5-101.

Tenn. Code Ann. § 36-1-113 (i) (Supp. 2012).

The record reflects that the Children are in a caring, stable foster home and
have received treatment for their severe medical needs. On the other hand, there is virtually

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nothing in the record to suggest that Father is or will be in any position to serve as a suitable
father to the Children. On the contrary, Father has proven to be amazingly indifferent and
indolent when it comes to fulfilling his responsibilities as a parent. The evidence in the
record on appeal does not preponderate against the Trial Court’s findings made by clear and
convincing evidence that it is in the Children's best interest for Father's parental rights to be
terminated. We affirm the Trial Court’s finding that it is in the best interest of the Children
for Father’s parental rights to be terminated.

We find and hold that, apart from its reliance on the grounds of persistent
conditions and failure to provide a suitable home, which we modify, the Trial Court did not
err in terminating Father's parental rights to the Children. We, therefore, affirm as modified
the Trial Court's judgment terminating Father's parental rights to the Children.

Conclusion

The judgment of the Trial Court is affirmed as modified, and this cause is
remanded to the Trial Court for collection of the costs below. The costs on appeal are
assessed against the Appellant, Lewis S., and his surety, if any.

_________________________________
D. MICHAEL SWINEY, JUDGE

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