In Re S.C.M.

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs December 10, 2014

IN RE S.C.M. ET AL

Appeal from the Chancery Court for Hawkins County
No. 2012-AD-35 Douglas T. Jenkins, Chancellor

No. E2014-01379-COA-R3-PT-FILED-MARCH 2, 2015

This is a termination of parental rights case regarding S.C.M. and T.O.J.M. (collectively, the
Children), the minor children of H.C. (Mother) and B.M. (Father). After both parents were
arrested, the Children’s maternal grandparents, R.R. and T.R. (collectively, the Grandparents)
obtained temporary, emergency custody. Nearly three years later, the Grandparents filed a
petition seeking to (1) terminate both parents’ rights and (2) adopt the Children. Following
a trial, the court terminated both parents’ rights. Father appeals.1 We affirm.

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

C HARLES D. S USANO, J R., C.J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.

Whitney Bailey, Kingsport, Tennessee, for the appellant, B.M.

Daniel G. Boyd, Rogersville, Tennessee, for the appellees, R.R. and wife, T.R.

OPINION

I.

The Children are twins, a boy and a girl, born in August 2009 to Mother and Father,

1
The termination order states that “Mother’s consent to Petition for Adoption is hereby confirmed.”
Although the termination/adoption petition was filed against both Mother and Father, Mother did not appear
at trial and is not a party to this appeal.
an unmarried couple. Some five months later, the Grandparents received a call from the
Unicoi County Sheriff’s Department asking them to take custody of the Children on an
emergency basis because both parents had been arrested and were in jail.2 Subsequently, the
Children were adjudicated dependent and neglected; the juvenile court ordered that custody
would remain with the Grandparents as the Children’s legal guardians. In the ensuing four
to five months, Father regularly traveled from his home in Surgoinsville to the Grandparents’
home in Greeneville to visit the Children. In June 2010, he was incarcerated and his contact
with the Children ceased.

In October 2012, the Grandparents filed a petition to terminate the parents’ rights and
adopt the Children. By that time, the Children had lived with the Grandparents continuously
for almost three years. The Grandparents sought termination of both parents’ rights to the
Children as the initial step in the adoption process.

Trial was held on June 16, 2014. Father participated via telephone from Keen
Mountain Correctional Center in Oakwood, Virginia, where he had been incarcerated for the
past four years. The proof reflected that, at the time of the commission of the Unicoi County
offenses, Father was on probation from a 2006 Virginia conviction for involuntary
manslaughter. As a result of the new Tennessee charges, Father’s probation was revoked and
he was ordered to serve the remainder of his sentence in Virginia. Father testified that he had
made efforts to maintain contact with the Children from prison by writing cards on holidays.
He also had requested that grandmother send him pictures of the Children, but she had not
complied with his request. Father conceded that he had not paid any child support since the
Children had come into the Grandparents’ custody, but said that on occasion he purchased
diapers and clothing for them. Father testified that, upon his release, he intended to “work
and be a part of my children’s life and be the best father I can be.”

T.R., grandmother, was the only other witness at trial. She essentially testified that
the Grandparents had developed a bond with the Children and had been with them, for the
past four years, “every step of the way.” Grandmother testified, “we take care of all their
needs, . . . we just take care of everything, . . . and just we love them.” She concluded that
the Children were “where they belong.”

After trial, the court found that two of the three alleged grounds for termination were

2
The judgments in the criminal cases are not before us. Father asserts that he was freed on bond and
later pled guilty to misdemeanor offenses of “simple possession and possession of drug paraphernalia.” The
accuracy of his assertion is not material to the resolution of the issues in this case.

-2-
proven3 – abandonment by failure to pay child support and conduct of Father demonstrating
a wanton disregard for the Children’s welfare. The trial court further found that termination
was in the Children’s best interest. Both findings were said by the court to be based upon
clear and convincing evidence. Father filed a timely notice of appeal.

II.

Father raises the following issues for our review:

1.Whether the trial court erred in finding by clear and
convincing evidence that [Father] willfully abandoned the minor
children pursuant to Tenn. Code Ann. § 36-1-102(A)(iv)
[(2014)].4

2.Whether the trial court erred in finding by clear and
convincing evidence that termination of [Father’s] parental
rights is in the children’s best interest.

III.

It is well established that parents have a fundamental right to the care, custody, and
control of their children. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551
(1972); In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988). While parental rights are
superior to the claims of other persons and the government, they are not absolute, and they
may be terminated upon appropriate statutory grounds. See Blair v. Badenhope, 77 S.W.3d
137, 141 (Tenn. 2002). 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 interests of the child.” T.C.A. § 36-1-113(c) (2014); In re
F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006). Both of these elements must be established
by clear and convincing evidence. See T.C.A. § 36-1-113(c)(1); In re Valentine, 79 S.W.3d
539, 546 (Tenn. 2002). Evidence satisfying the clear and convincing evidence standard
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. M.S., filed August
13, 2003), and eliminates any serious or substantial doubt about the correctness of the

3
The third alleged ground was abandonment by failure to visit.
4
We recite the issue as taken verbatim from the “Argument” section of Father’s brief as that section
most accurately reflects Father’s positions on appeal.

-3-
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). The trial court’s findings of fact made pursuant to
a clear and convincing evidence standard are reviewed de novo upon the record accompanied
by a presumption of correctness unless the preponderance of the evidence is otherwise. In
re F.R.R., III, at 530; Tenn. R. App. P. 13(d). Questions of law are reviewed de novo with
no presumption of correctness. Langschmidt v. Langschmidt, 81 S.W.3d 741, 744-45 (Tenn.
2002).

IV.

Father challenges the trial court’s findings of multiple forms of abandonment as
grounds for termination. Tenn. Code Ann. § 36-1-113(g)(1). As further defined in Tenn.
Code Ann. § 36-1-102, “abandonment” by an incarcerated parent is defined as follows:

A parent or guardian is incarcerated at the time of the institution
of an action or proceeding to declare a child to be an abandoned
child, or the parent or guardian has been incarcerated during all
or part of the four (4) months immediately preceding the
institution of such action or proceeding, and either has willfully
failed to visit or has willfully failed to support or has willfully
failed to make reasonable payments toward the support of the
child for four (4) consecutive months immediately preceding
such parent’s or guardian’s incarceration, or the parent or
guardian has engaged in conduct prior to incarceration that
exhibits a wanton disregard for the welfare of the child.

Tenn. Code Ann. § 36-1-102(1)(A)(iv)(emphasis added). Further, “willfully failed to
support” or “willfully failed to make reasonable payments toward such child’s support”
means, in this case, that a parent, for a period of four (4) consecutive months immediately
preceding incarceration, has willfully failed to provide monetary support or has willfully
failed to provide more than token payments toward the support of the child. Tenn. Code
Ann. § 36-1-102(1)(D).

In the present case, the trial court found that, prior to Father’s incarceration, he
abandoned the Children in that he (1) “willfully fail[ed] to support or make reasonable
payments toward the support of the minor children” and (2) “engaged in a course of conduct
which shows a wanton disregard for the welfare of the [Children].” We quote pertinent
portions of the trial court’s findings with respect to these grounds for termination:

The Court, after hearing all the proof, reading through the

-4-
technical record of the case, hearing what you’ve said, . . .
hearing what [grandmother] said, believes that what support you
provided in the way of diapers, clothes, and things of that nature
that you talked about in your testimony, are not such a
substantial amount that it would amount to actually supporting
the [Children]. The Court credits [the grandmother’s] testimony
as to what you provided, and the Court doesn’t necessarily
disbelieve you, [Father]. It’s just that even the way you describe
it, it’s pretty clear to The Court that there wasn’t a whole lot of
support here. So the Court is going to find by clear and
convincing evidence that you failed to support the [C]hildren the
four months before you were incarcerated.

* * *

Then that brings us to . . . the statutory ground of willful and
wanton behavior or behavior that exhibits a willful and wanton
disregard for the welfare of these children. [Father], the Court
finds that . . . before the birth of these children you had engaged
in certain behavior that was criminal in nature, resulted in a
pretty lengthy prison sentence for you. . . . And then after the
birth of these children, you committed some other crimes,
misdemeanors in nature, that caused your lengthy prison term in
Virginia that you were on probation for to be reinstated. It also
resulted in you being placed on it sounds like misdemeanor
probation down here in Tennessee. . . .

* * *

. . . [Y]ou’ve still got a lot of issues in your life to be sorted out.
Best case scenario, you can’t get out and be a parent to these
kids [for] another eight, ten months.

* * *

The Court finds by clear and convincing evidence that you did,
in fact, engage in conduct that shows a willful and wanton
disregard for the children with all the jail time you’ve got, the
nature of the offenses, and also the probation violations, and so
that ground is sustained.

-5-
We proceed on our review, mindful that only a single statutory ground must be sufficiently
proven in order to support an order for termination. In re Audrey S., 182 S.W.3d 838, 862
(Tenn. Ct. App. 2005).

We begin with the trial court’s finding of abandonment by failure to pay child support.
Father testified that in the six months before he reported to prison in Virginia, he worked for
his father’s vinyl siding and window business in Kingsport and was paid in cash. He testified
that he was never asked to pay child support but said he “bought diapers a couple times,
. . . and numerous outfits.” On cross-examination, Father further testified as follows:

[Mr. Boyd]: Have you provided a penny to help feed these
children since they were born?

[Father]: Yes. . . .

Q: To [grandmother]?

A: I never give her cash in hand.

Q: Never. Thank you.

A: But I did give them clothing and diapers, and they got food
from WIC. She didn’t buy it neither. WIC did. The
government. Not [grandmother], but the government.

For her part, grandmother agreed that Father provided diapers – one time – and said he also
brought some “used” clothing for the Children.

The evidence does not preponderate against the trial court’s finding that Father
abandoned the Children by failing to support them in the four months before he went to
prison. Even crediting Father’s testimony, as the trial court seems to have done, we agree
with the court’s implicit conclusion that the extent of Father’s support – none of which
support was in the nature of financial help – can only be deemed “token” in nature. There
is clear and convincing evidence to establish abandonment by non-support as a ground for
termination.

We next consider the ground of abandonment by wanton disregard. “Wanton
disregard for the welfare of a child can be established by the parent’s previous criminal
conduct along with a history of drug abuse.” In re Jai’Shaundria D.L.R., No.

-6-
M2011-02484-COA-R3-PT, 2012 WL 2244244 at *5 (Tenn. Ct. App. M.S., filed June 15,
2012)(citing In re S.L.A., 223 S.W.3d 295, 299 (Tenn. Ct App. 2006). This Court has
further addressed the “wanton disregard” ground as follows:

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.” In re Audrey S., 182 S.W.3d at
866. It is well established “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).

In re Michael A.C., No. E2014-01268-COA-R3-PT, 2014 WL 6092834 at *7 (Tenn. Ct.
App. E.S., filed Nov. 17, 2014).

At trial, the proof indicated that Father was on felony probation following a 2006
involuntary manslaughter conviction in Virginia. At the same time, Father admitted that he
was “deep into the drug scene.” He testified that when the Children came along, he wanted
to change, but was “young and dumb” and continued his drug habit. As a result, he violated
the terms of his probation and had spent the past four years in prison and out of the
Children’s lives. Father anticipated being released in the Fall of 2014 and hoped to be
accepted into a program that would permit him to serve another six months to a year in a
halfway house. Father believed he also had a misdemeanor probation violation pending in
“city court.” He testified that since entering prison, he had completed a substance abuse
program and was attending work preparedness classes as part of a re-entry program. Father
testified that, following his release, he planned to live with his grandparents and raise the
Children.

The trial court concluded that Father’s conduct following the birth of the Children
demonstrated a “willful and wanton disregard” for their welfare. We agree. In doing so, we
note that neither the restrictions of probation nor a desire to be a responsible parent was
enough to lead Father to address his drug habit and cease his drug-related activities. Father
has basically been absent for all but the first few months of the Children’s lives. Moreover,
in the four months before his date of incarceration, he worked but paid nothing for the
support of the Children. In our view, these factors display a clear lack of regard for the
Children’s well being. In summary, clear and convincing evidence exists to terminate
Father’s parental rights on the ground of abandonment by conduct exhibiting a wanton
disregard for the welfare of the Children.

-7-
 V.

Having concluded that grounds for termination exist, we next consider the question
of the Children’s best interest. Our review is guided by the list of non-exclusive factors set
forth at Tenn. Code Ann. § 36-1-113(i). 5 We proceed with the following principles in mind
as stated by us in White v. Moody:

The ultimate goal of every proceeding involving the care and
custody of a child is to ascertain and promote the child’s best
interests. However, as important as these interests are, they do
not dominate every phase of a termination of parental rights

5
These factors are:

(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.

-8-
 proceeding. The best interests of the child do not become the
paramount consideration until the trial court has determined that
the parent is unfit based on clear and convincing evidence of
one or more of the grounds in Tenn. Code Ann. § 36-1-113(g)
(Supp. 2004). Once a parent has been found to be unfit, the
interests of the parent and the child diverge. While the parent’s
interests do not evaporate upon a finding of unfitness, . . . the
focus of the proceedings shifts to the best interests of the child.

* * *

[A]scertaining a child’s best interests in a termination
proceeding is a fact-intensive inquiry requiring the courts to
weigh the evidence regarding the statutory factors, as well as
any other relevant factors, to determine whether irrevocably
severing the relationship between the parent and the child is in
the child’s best interests. The child’s best interests must be
viewed from the child’s, rather than the parent’s, perspective.

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

White v. Moody, 171 S.W.3d 187, 192-194 (Tenn. Ct. App. 2004), perm. app. denied (Tenn.
2005)(internal citations omitted).

In the present case, the trial court orally announced its ruling at the close of the proof.
With respect to the “best interest” issue, the court stated only that it relied on “the comments
of the Guardian ad litem and the testimony of [grandmother]” in finding that “it’s in the best
interest of these children that [Father’s] rights be terminated, and . . . that is by clear and
convincing evidence.” The court did not further elaborate on its decision and included no
specific findings of fact in its written termination order. To be sure, the lack of factual
findings hampers our ability to undertake a meaningful review of the trial court’s decision.
To that end, this Court has “repeatedly called the plain, mandatory requirements of Tenn.

-9-
Code Ann. § 36-1-113(k) to the attention of the trial bench. Unlike ordinary civil
proceedings, trial courts must enter written findings of fact and conclusions of law in
termination cases within thirty days following the conclusion of the termination hearing.”
White, 171 S.W.3d at 191. (emphasis added). “We have likewise pointed out that failure to
comply with Tenn. Code Ann. § 36-1-113(k) may necessitate remanding the case with
directions to prepare written findings of fact and conclusions of law.” Id. at 192 (citing, e.g.,
In re M.J.B., 140 S.W.3d 643, 653-54 (Tenn. Ct. App. 2004)). Here, however, we are
mindful that the Children have already been in the Grandparents’ custody for over four years.
Rather than delaying the final resolution of this case, we have undertaken our own best
interest analysis. Upon consideration of the evidence in light of the relevant factors, we
conclude there is clear and convincing evidence that termination of Father’s rights is in the
best interest of the Children.

At the time of trial, the Children had been in the Grandparents’ custody for some four
years. Every aspect of the Children’s young lives was guided by grandmother and
grandfather. The Children had just successfully completed pre-Kindergarten. They attended
church and Bible school, participated in sports, and enjoyed helping with the animals on the
Grandparents’ farm. As a consequence of his personal choices, Father was not a presence
in the Children’s lives. His criminal conduct and lengthy prison term had left him unable to
demonstrate whether he could achieve lasting change in his conduct and circumstances by
exiting the drug scene and providing a proper home and supervision for the Children. Father
had failed at his one, brief opportunity to pay child support for their benefit. Grandmother
testified that it would “just destroy [the Children]” to be taken out of the safe, stable home
they knew. Nothing in the evidence leads us to a different conclusion.

Michelle Greene, the Guardian ad litem, investigated the case and personally visited
with the Children. She concluded that they were in a “safe, stable home” with “the only
parents they’ve truly ever known.” Ms. Greene advocated that it was in the Children’s best
interest that termination be decreed and that the adoption proceed.

At the close of the proof, the trial court expressed that it was hopeful, based on
Father’s testimony at trial, that he had “turned the corner in [his] life and matured to the point
where you can get out of jail and be a productive citizen. . . .” At the same time, the court
advised Father that “[w]e’ve got some kids to raise” and “[the court] cannot make those kids
sit around and wait to have a permanent home until you maybe do what you can do.” We
agree that the Children’s interest is best served by terminating Father’s parental rights, as
shown by clear and convincing evidence.

-10-
 VI.

The judgment of the trial court terminating Father’s parental rights to the Children,
S.C.M. and T.O.J.M. is affirmed. Costs on appeal are taxed to the appellant, B.M. This case
is remanded to the trial court, pursuant to applicable law, for enforcement of the trial court’s
judgment and the collection of costs assessed below.

____________________________________
CHARLES D. SUSANO, JR., CHIEF JUDGE

-11-