In Re Chandler M.

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
June 5, 2014 Session

IN RE CHANDLER M.1

Appeal from the Juvenile Court for Franklin County
No. 11JV317 Hon. Thomas C. Faris, Judge

No. M2013-02455-COA-R3-PT - Filed July 21, 2014

This is a termination of parental rights case in which the Tennessee Department of Children’s
Services filed a petition to terminate Father’s parental rights to the Child. The trial court
found that clear and convincing evidence existed to support the termination of Father’s
parental rights on the statutory grounds of abandonment, persistence of conditions, and
confinement under a sentence of ten years or more. The court further found that termination
of his rights was in the Child’s best interest. Father appeals. We affirm the trial court’s
termination of Father’s parental rights on the grounds of abandonment and confinement
under a sentence of 10 years or more. However, we reverse the trial court on the ground of
persistent conditions.

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

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which T HOMAS R. F RIERSON,
II, J., joined. D. M ICHAEL S WINEY, J., concurring in part, dissenting in part filing a separate
dissenting opinion.

John M. Stewart, Winchester, Tennessee, for the appellant, Henry Y., III.

1
This court has a policy of protecting the identity of children in parental rights termination cases by
initializing the last name of the parties.
Robert E. Cooper, Jr., Attorney General and Reporter, and Leslie Curry, Assistant Attorney
General, Nashville, Tennessee, for the appellee, State of Tennessee, Department of
Children’s Services.

Janet M. Songer, Winchester, Tennessee, guardian ad litem for the minor, Chandler M.

OPINION

I. BACKGROUND

Chandler M. (“the Child”) was born to Danielle M. (“Mother”) and Henry Y., III
(“Father”) in February 2011. Mother and Father did not maintain a romantic relationship
beyond the encounter which produced the Child. Mother did not list Father’s name on the
birth certificate and openly asserted that another man was the Child’s father. While in
Mother’s care, the Child was removed by the Tennessee Department of Children’s Services
(“DCS”) in August 2011. The Child was adjudicated as dependent and neglected. Mother
was uncooperative with DCS’s efforts to identify Father, causing DCS to test three other
putative fathers before she disclosed his identity. Father was incarcerated when he learned
that he might be the Child’s father. Shortly thereafter, DCS filed a petition to terminate his
and Mother’s parental rights to the Child in July 2012.2

A hearing was held at which several witnesses testified. Father acknowledged his
lengthy criminal history. He confirmed that he was released from jail in April 2011 only to
be arrested again in December 2011 for violating probation and committing several other
offenses. He stated that he was incarcerated from December 2011 until February 2012 and
that he was released for a two-week period before he returned to jail again in March 2012.
He recalled that he resolved his pending charges by entering into a plea agreement in which
he received an effective sentence of 12 years, suspended to probation following the service
of 365 days in jail. His release date was set for March 27, 2014.

Father admitted that he had protected sex with Mother on one occasion and that he
knew of Mother’s pregnancy. He claimed that he did not believe that he was the father
because Mother asserted that another man was the Child’s father. He acknowledged that he
never attempted to establish his paternity and that he first learned that he might be the father
in May 2012, when Christina Foster-Cremeans, a DCS caseworker, scheduled his paternity
test and then informed him of the positive test results in July 2012.

2
Mother voluntarily surrendered her parental rights to the Child and is not a party to this appeal.
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 Father acknowledged that he had not established a relationship with the Child due to
his incarceration. He had also not attended any parenting classes because such classes were
not offered at the county jail. He related that once he was released, he planned to marry his
fiancé, who was in the process of purchasing a home in Nashville, Tennessee, near the Child.
He claimed that his brother, who was a supervisor for Charter Communications, was in the
process of securing him a position with the company. He acknowledged that he would need
help once he was released from jail but asserted that he wanted to establish a relationship
with the Child and eventually parent the Child.

Ms. Foster-Cremeans testified that the Child had been placed with a foster mother that
had already adopted one of the Child’s siblings and had expressed a desire to adopt the Child
as well. She related that the Child had resided in the same foster home for approximately
three years. She first learned of Father’s existence in May 2012. She acknowledged that
Father was unable to complete parenting classes or any other classes that would help him
parent the Child because such classes were not offered in the county jail. She admitted that
Father had shown a willingness to participate in programs upon his release. She explained
that despite Father’s willingness to better himself, she did not want the Child to languish in
custody while Father attempted to establish himself as a suitable placement.

Following the presentation of the above evidence, the trial court declined to terminate
Father’s parental rights on the ground of abandonment for failure to support and failure to
visit. However, the court held that Father engaged in conduct prior to incarceration that
exhibited a wanton disregard for the Child’s welfare and that the conditions which led to the
removal persisted. The court further held that termination of his parental rights was
supported by the statutory ground of confinement under a sentence of ten years or more. The
court likewise found that termination of Father’s parental rights was in the best interest of
the Child. This timely appeal followed.

II. ISSUES

We consolidate and restate the issues raised on appeal by Father as follows:

A. Whether clear and convincing evidence supports the trial court’s
termination of Father’s parental rights to the Child pursuant to Tennessee Code
Annotated section 36-1-102(1)(A)(iv).

B. Whether despite reasonable efforts by DCS, clear and convincing evidence
supports the trial court’s termination of Father’s parental rights to the Child
pursuant to Tennessee Code Annotated section 36-1-113(g)(3).

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 C. Whether clear and convincing evidence supports the trial court’s
termination of Father’s parental rights to the Child pursuant to Tennessee Code
Annotated section 36-1-113(g)(6).

III. STANDARD OF REVIEW

Parents have a fundamental right to the care, custody, and control of their children.
Stanley v. Illinois, 405 U.S. 645 (1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App.
1988). This right “is among the oldest of the judicially recognized liberty interests protected
by the Due Process Clauses of the federal and state constitutions.” In re M.J.B., 140 S.W.3d
643, 652-53 (Tenn. Ct. App. 2004). “Termination of a person’s rights as a parent is a grave
and final decision, irrevocably altering the lives of the parent and child involved and
‘severing forever all legal rights and obligations’ of the parent.” Means v. Ashby, 130
S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-113(I)(1)). “‘[F]ew
consequences of judicial action are so grave as the severance of natural family ties.’” M.L.B.
v. S.L.J., 519 U.S. 102, 119 (1996) (quoting Santosky v. Kramer, 455 U.S. 745, 787 (1982)).

While parental rights are superior to the claims of other persons and the government,
they are not absolute and may be terminated upon appropriate statutory grounds. See Blair
v. Badenhope, 77 S.W.3d 137, 141 (Tenn. 2002). Due process requires clear and convincing
evidence of the existence of the grounds for termination of the parent-child relationship. In
re Drinnon, 776 S.W.2d at 97. A parent’s rights may be terminated only upon

(1) [a] finding by the court by clear and convincing evidence that the grounds
for termination of parental or guardianship rights have been established; and

(2) [t]hat termination of the parent’s or guardian’s rights is in the best interest
[] of the child.

Tenn. Code Ann. § 36-1-113(c). “[A] court must determine that clear and convincing
evidence proves not only that statutory grounds exist [for the termination] but also that
termination is in the child’s best interest.” In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
The existence of at least one statutory basis for termination of parental rights will support the
trial court’s decision to terminate those rights. In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct.
App. 2000), abrogated on other grounds by In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App.
2005).

The heightened burden of proof in parental termination cases minimizes the risk of
erroneous decisions. In re C.W.W., 37 S.W.3d at 474; In re M.W.A., Jr., 980 S.W.2d 620,
622 (Tenn. Ct. App. 1998). Evidence satisfying the clear and convincing evidence standard

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establishes that the truth of the facts asserted is highly probable. State v. Demarr, No.
M2002-02603-COA-R3-JV, 2003 WL 21946726, at *9 (Tenn. Ct. App. Aug. 13, 2003). This
evidence also eliminates any serious or substantial doubt about the correctness of the
conclusions drawn from the evidence. In re Valentine, 79 S.W.3d at 546; In re S.M., 149
S.W.3d 632, 639 (Tenn. Ct. App. 2004); In re J.J.C., 148 S.W.3d 919, 925 (Tenn. Ct. App.
2004). It produces in a fact-finder’s mind a firm belief or conviction regarding the truth of
the facts sought to be established. In re A.D.A., 84 S.W.3d 592, 596 (Tenn. Ct. App. 2002);
Ray v. Ray, 83 S.W.3d 726, 733 (Tenn. Ct. App. 2001); In re C.W.W., 37 S.W.3d at 474.

In 2010, the Tennessee Supreme Court provided guidance to this court in reviewing
cases involving the termination of parental rights:

A reviewing court must review the trial court’s findings of fact de novo with
a presumption of correctness under [Rule 13(d) of the Tennessee Rules of
Appellate Procedure]. See In re Adoption of A.M.H., 215 S.W.3d [793,] 809
[(Tenn. 2007)]. In light of the heightened burden of proof in proceedings
under [Tennessee Code Annotated section] 36-1-113, the reviewing court must
then make its own determination regarding whether the facts, either as found
by the trial court or as supported by a preponderance of the evidence, provide
clear and convincing evidence that supports all the elements of the termination
claim. State Dep’t of Children’s Servs. v. Mims, 285 S.W.3d [435,] 447-48
[(Tenn. Ct. App. 2008)]; In re Giorgianna H., 205 S.W.3d 508, 516 (Tenn. Ct.
App. 2006); In re S.M., 149 S.W.3d 632, 640 n. 13 (Tenn. Ct. App. 2004).
Appellate courts conduct a de novo review of the trial court’s decisions
regarding questions of law in termination proceedings. However, these
decisions, unlike the trial court’s findings of fact, are not presumed to be
correct. In re Angela E., 303 S.W.3d [240,] 246 [(Tenn. 2010)]; In re
Adoption of A.M.H., 215 S.W.3d at 809.

In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn. 2010).

IV. DISCUSSION

A.

Father contends that the trial court erred by finding clear and convincing evidence that
he abandoned the Child by engaging in conduct prior to his incarceration that exhibited a
wanton disregard for the Child’s welfare. He asserts that his behavior was not willful as it
related to the Child because he was unaware of his paternity of the Child. DCS responds that
Father’s knowledge of Mother’s pregnancy put him on notice of his potential paternity of the

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Child and that his conduct showed a wanton disregard for the welfare of the Child. DCS
contends that despite Father’s knowledge of the pregnancy, he failed to discover whether the
Child was his or to curtail the behavior that led to his incarceration.

Relative to the alleged abandonment of the Child, the Tennessee Code provides, in
pertinent part,

(1)(A) For purposes of terminating the parental [] rights of [a parent] 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 . . . 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).

Under this ground of abandonment, 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 (emphasis added). The court may
consider any relevant conduct that occurred prior to incarceration and is not limited to
reviewing the four months immediately preceding the incarceration. Id. at 870-71. This
court has “repeatedly held that probation violations, repeated incarceration, criminal
behavior, substance abuse, and the failure to provide adequate support or supervision for a
child can, alone or in combination, constitute conduct that exhibits a wanton disregard for
the welfare of a child.” Id. at 867-68 (citations omitted).

While this statutory ground of abandonment does not require that the parent’s action
be willful, the parent’s conduct cannot support this statutory ground of abandonment without
the accompanying display of “a wanton disregard for the welfare of the child.” Tenn. Code
Ann. § 36-1-102(1)(A)(iv) (emphasis added). “[W]anton” is defined by Black’s Law
Dictionary, 9th edition, as “[u]nreasonably or maliciously risking harm while being utterly
indifferent to the consequences.” The consequences at issue in termination cases relate to

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the child’s welfare. In other words, the parent must be indifferent to how their conduct may
affect their child’s welfare. Tenn. Code Ann. § 36-1-102(1)(A)(iv). Here, Father was aware
that Mother was pregnant after he had sex with her. While Father was concerned enough to
question if he was the Child’s father, he made no further inquiries as to his paternity after
Mother openly identified another man as the Child’s father. Instead, Father continued in his
destructive behavior that demonstrated a “wanton disregard for his own welfare much less
that of the [C]hild.” See generally State Dep’t of Children’s Servs. v. Stinson, No. W2006-
00749-COA-R3-PT, 2006 WL 3054604, at *15 (Tenn. Ct. App. Oct. 30, 2006), perm. app.
denied (Tenn. Feb. 5, 2007) (affirming termination of a father’s parental rights based upon
his abandonment of the child even though the mother denied the father’s paternity of the
child). With these considerations in mind, we conclude that the evidence does not
preponderate against the trial court’s finding that termination of Father’s parental rights was
appropriate based upon his conduct prior to incarceration and that a statutory ground existed
for termination of Father’s parental rights to the Child.

B.

Father argues that the statutory ground of termination relating to the persistence of
conditions cannot apply to him because the removal petition related to Mother’s abuse or
neglect, not his. He asserts that he was never afforded the opportunity to parent the Child
because he was already incarcerated when he learned of his paternity. DCS responds that the
conditions that led to the Child’s removal still persist, namely Father’s history of criminal
activity and incarceration.

Under Tennessee law, a court may terminate parental rights when:

(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

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 (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) (emphasis added). Termination of parental rights requires
clear and convincing evidence of all three factors. In re Valentine, 79 S.W.3d at 550.
Additionally, the persistence of conditions ground may only be applied “where the prior court
order removing the child from the parent’s home was based on a judicial finding of
dependency, neglect, or abuse.” In re Audrey S., 182 S.W.3d at 874.

Here, the Child was removed based upon a finding of dependency and neglect relative
to Mother. Father had not even been identified as a potential putative father at the time of
removal or when the Child was subsequently adjudicated as dependent and neglected. While
it can be argued that the Child was also removed because Father was unavailable to care for
the Child due to his incarceration, the pertinent question in a termination proceeding based
upon the statutory ground of persistence of conditions is whether Father has continued to
neglect the Child. State v. C.H.K., 154 S.W.3d 586, 592 (Tenn. Ct. App. 2004). Father has
not had an opportunity to properly care for the Child or continue in his alleged neglect of the
Child because he has been incarcerated since he learned of his paternity. Id. Additionally,
Father’s incarceration, standing alone, cannot support this ground of termination as an “other
condition” when the legislature has already provided for termination due to a parent’s
incarceration pursuant to section 36-1-113(g)(6). Id. Accordingly, we conclude that the trial
court erred in relying on section 36-1-113(g)(3) as a statutory ground for termination. We
reverse the trial court’s finding that termination of Father’s parental rights was appropriate
based upon the alleged persistence of conditions that led to removal. This conclusion does
not end our inquiry because only one statutory ground for termination of parental rights listed
in section 36-1-113(g) is sufficient to support an order terminating parental rights when
termination is in the best interest of the child. In re Audrey S., 182 S.W.3d at 860.

C.

Father asserts that the trial court erred in terminating his parental rights based upon
his incarceration when he was only ordered to serve 1 year in jail, followed by 11 years on
probation. DCS responds that the record supports the trial court’s finding by clear and
convincing evidence that he was confined under a sentence of ten years or more.

This question involves the interpretation of a statute. Statutory construction is a
question of law that is reviewed de novo without any presumption of correctness. In re
Estate of Tanner, 295 S.W.3d 610, 613 (Tenn. 2009). This court’s primary objective is to
carry out legislative intent without broadening or restricting the Act beyond its intended

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scope. Houghton v. Aramark Educ. Res., Inc., 90 S.W.3d 676, 678 (Tenn. 2002). In
construing legislative enactments, we presume that every word in a statute has meaning and
purpose and should be given full effect if the obvious intention of the legislature is not
violated by so doing. In re C .K.G., 173 S.W.3d 714, 722 (Tenn. 2005). When a statute is
clear, we should apply the plain meaning without complicating the task. Eastman Chem. Co.
v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004). The statute at issue provides 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:

***

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

Tenn. Code Ann. § 36-1-113(g)(6). Father does not challenge the fact that the Child was
under eight years of age at the time of his sentencing. Instead, he claims that this ground may
not apply to him because he did not receive a sentence of confinement of ten or more years.
He distinguishes his case from others that included the mere possibility of parole by arguing
that he received a determinate sentence of only one year with a definite release date.

In applying this ground of termination to Father, the trial court noted that section 36-1-
113(g)(5) provided, in pertinent part,

The parent or guardian has been sentenced to more than two (2) years’
imprisonment for conduct against the child who is the subject of the petition,
or for conduct against any sibling or half-sibling of the child or any other child
residing temporarily or permanently in the home of such parent or guardian,
that has been found under any prior order of a court or that is found by the
court hearing the petition to be severe child abuse, as defined in § 37-1-102.
Unless otherwise stated, for purposes of this subdivision (g)(5), “sentenced”
shall not be construed to mean that the parent or guardian must have actually
served more than two (2) years in confinement, but shall only be construed to
mean that the court had imposed a sentence of two (2) or more years upon the
parent or guardian[.]

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The trial court then stated,

[T]he legislature states that “sentenced” shall not be construed to mean that the
parent or guardian must actually have served more than two (2) years in
confinement, but shall only be construed to mean that the Court had imposed
a sentence of two (2) or more years upon the parent or guardian. By analogy
in the instant case, if the legislature had wanted a period of probation to not
count in the time factor, the Court feels they would have explicitly said so.

Contrary to the trial court’s finding, the construction in subsection (g)(5) of “sentenced” as
inclusive of non-confinement sentences, such as probation, is expressly stated in the statute
to apply only to subsection (g)(5). Accordingly, the trial court erred by applying this
construction to the express use of the term, “confinement,” in subsection (g)(6).

Despite this error in the trial court’s reasoning, a panel of this court reached a similar
result in a case involving like circumstances. See In re Caleb F.N.P., No. M2013-00209-
COA-R3-PT, 2013 WL 5783141, at *13 (Tenn. Ct. App. Oct. 25, 2013) (upholding
termination of mother’s parental rights pursuant to section 36-1-113(g)(6) when she was only
ordered to serve 12 days of her sentence in confinement). In upholding the termination of
mother’s parental rights, this court stated,

Mother concedes that she was sentenced to twelve years of community
corrections for theft of over $60,000 on September 8, 2008. Additionally,
Mother concedes that [the Child] was under the age of eight at that time.
Nevertheless, Mother argues that she was only “confined” for twelve days and
received a community corrections sentence. She argues that because she was
not confined for a period of more that ten years, the trial court erred in relying
on this ground to terminate her parental rights.

Mother’s argument is meritless. This court has “repeatedly recognized that a
court considering a petition for termination of parental rights based on Tenn.
Code Ann. § 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).

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Id. In this case, the requirements of the statute have also been met, namely Father has been
confined under a sentence of 10 or more years when the Child was less than 8 years of age.
While the statute 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. Indeed, the legislature expressly provided as follows:

(a) The primary purpose of [the adoption statutes] is to provide means and
procedures for the adoption of children and adults that recognize and
effectuate to the greatest extent possible the rights and interests of persons
affected by adoption, especially those of the adopted persons, which are
specifically protected by the constitutions of the United States and the state of
Tennessee and to those ends seek to ensure, to the greatest extent possible,
that:

***

(5) The adoption proceedings are held in an expeditious manner to enable the
child to achieve permanency, consistent with the child’s best interests, at the
earliest possible date[.]

Tenn. Code Ann. § 36-1-101(a). As Father is well aware from his past experience, his
probation could be revoked at any time following his release, thereby subjecting the Child
to an unending quest for permanency. In consideration of the foregoing, we hold that clear
and convincing evidence exists in the record to support the trial court’s termination of
Father’s parental rights based upon his confinement under a sentence of ten years or more.
In light of the dissenting opinion filed in this case and the potential affect this holding could
have on future cases, the issue presented on this ground for termination might merit further
review by the Tennessee Supreme Court.

D.

Having concluded that there was clear and convincing evidence establishing at least
one statutory ground to terminate Father’s parental rights, we must now consider whether
termination of Father’s parental rights was in the best interest of the Child. Although Father
has not appealed the court’s best interest finding, we have reviewed the issue because of the
gravity and finality that this decision will have on Father’s parental rights. See In re Arteria
H., 326 S.W.3d 167, 184 (Tenn. Ct. App. 2010) (considering the best interest issue even
though the issue was not raised on appeal). Following our review, we conclude that there

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was clear and convincing evidence to establish that termination of Father’s parental rights
was in the best interest of the Child pursuant to Tennessee Code Annotated section 36-1-
113(i).
V. CONCLUSION

The judgment of the trial court is affirmed as to the court’s termination of parental
rights pursuant to Tennessee Code Annotated sections 36-1-102(1)(A)(iv), abandonment
by conduct prior to incarceration that exhibited a wanton disregard for the child’s welfare ;
and 36-1-113(g)(6), confinement under a sentence of 10 years or more. The judgment of the
trial court is reversed as to the court’s termination of parental rights pursuant to Tennessee
Code Annotated section 36-1-113(g)(3), persistence of conditions that led to removal. The
case is remanded for such further proceedings as may be necessary. Costs of the appeal are
taxed to the appellant, Henry Y., III.

______________________________________
JOHN W. McCLARTY, JUDGE

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