In Re Kandace D.

01/08/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 2, 2017

IN RE KANDACE D.

Appeal from the Circuit Court for Bradley County

No. V-15-869 Lawrence Howard Puckett, Judge

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No. E2017-00830-COA-R3-PT

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This appeal involves the termination of a father’s parental rights to his minor child. The

child’s physical custodians petitioned to terminate the father’s parental rights. The trial

court found that the petitioners had established, by clear-and-convincing evidence, three

grounds for termination: (1) abandonment by an incarcerated parent, with the parent

having exhibited a wanton disregard for the welfare of the child prior to his incarceration;

(2) incarceration with a child under age eight and a prison sentence of ten years or more;

and (3) persistence of the conditions that led to the child’s removal from the father’s

home. The trial court also determined that termination of the father’s parental rights is in

the child’s best interest. The father appeals the three grounds for termination found by the

trial court. The father also appeals the trial court’s finding that termination of his parental

rights is in the child’s best interest. We reverse as to the ground of persistence of

conditions, but affirm termination of the father’s rights on both other grounds. We also

affirm the trial court’s conclusion that termination of the father’s parental rights is in the

child’s best interest.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in

Part, Affirmed in Part and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which FRANK G. CLEMENT,

JR., P.J., M.S., and JOHN W. MCCLARTY, J., joined.

Wilton Marble, Cleveland, Tennessee, for the appellant, Zachary D.

David K. Calfee, Cleveland, Tennessee, for the appellees, Jason M. and Earon M.

Herbert H. Slattery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor

General and W. Derek Green, Assistant Attorney General, for the intervenor-appellee,

State of Tennessee.

OPINION

BACKGROUND AND PROCEDURAL HISTORY

Beth D. (“Mother”) and Zachary D. (“Father,” or “Appellant”) are the biological

parents of one minor child, Kandace D. (d.o.b. June 2013) (“the Child”).1 Father appeals

the termination of his parental rights to the Child.2

On June 6, 2014, the Department of Children’s Services (“DCS”) received a

referral alleging that the Child was being subjected to nutritional and environmental

neglect. Based upon the referral, Jillian Shaw, a DCS investigator, visited the home of

Mother and Father. Father was not present, but Mother invited Ms. Shaw into the

residence. Ms. Shaw later testified that she observed the home to be covered with

laundry, trash, bugs, and what appeared to be dog urine. After photographing Father’s

residence, Ms. Shaw learned that the Child had been living with David W. and Marie W.,

the next-door neighbors (together, the “W.’s”), for approximately one month. Ms. Shaw

visited the W.’s home, and observed that the Child was small for her age, and she was

showing visible signs of malnourishment, including budding breasts and a protruding

stomach. After speaking with the W.’s and observing the Child, Ms. Shaw determined

that it was necessary to move forward with the DCS investigation. Accordingly, Ms.

Shaw arranged for Marie W. and Mother to bring the Child to the hospital emergency

room on the next day. The Child was released from the hospital after a one-night stay

with instructions to follow up with her regular doctor. After an appointment with her

regular doctor, the Child was admitted to the hospital for a second stay. The Child spent

four nights during this second visit; Marie W. testified that neither Father nor Mother

visited the Child during her four-night hospital stay.

On June 10, 2014, DCS filed a Petition in Juvenile Court to Transfer Temporary

Legal Custody to the Neighbors and for an Ex Parte Order, asking the trial court to find

the Child dependent and neglected and to award temporary legal custody to the W.’s. On

June 10, 2014, the trial court entered a protective custody order awarding emergency

custody to the W.’s. At the preliminary hearing on June 17, 2014, both parents consented

to the transfer of temporary legal custody of the Child to the W.’s. The trial court then

entered an Adjudicatory Order on June 19, 2014, finding that the Child was dependent

and neglected, and awarding the W.’s temporary legal custody. On October 31, 2014,

Father pled guilty to a multitude of felonies, and he was sentenced to serve ten years in

the Tennessee Department of Corrections.

1

In termination of parental rights cases, it is the policy of this Court not to use the last names of

minor children and other parties in order to protect their identities.

2

Mother voluntarily surrendered her parental rights at the final hearing on March 30, 2017, and

Father is the only parent appealing the termination of parental rights.

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Sometime later, the W.’s gave physical custody of the Child to Earon M. and

Jason M., the petitioners in this case.3 On December 7, 2015, Earon M. and her husband

Jason M., filed a petition to terminate Father’s parental rights and for the adoption of the

Child. The petition alleged that Father had been in-and-out of prison over the course of

the Child’s life, that he was currently incarcerated with a prison sentence of ten years,

and that termination of his parental rights was in the best interest of the Child.

Specifically, the petition averred that Father was incarcerated from May 7, 2014 through

May 18, 2014, and from September 29, 2014 through August 26, 2016. The petitioners

also averred that the Child had been living with them for several months, and that they

had a strong bond with the Child. The petition also alleged that Mother was prepared to

voluntarily surrender her parental rights, and a “Waiver of Interest and Notice” signed by

Mother was also filed with the petition.

On February 17, 2016, the trial court awarded legal custody to Earon M. and Jason

M. On October 31, 2016, Father filed a “Motion for Visitation/ Return Custody,” which

petitioners opposed. Father’s motion was denied. On February 15, 2017, petitioners

filed an amended petition to terminate Father’s parental rights and for the adoption of the

Child. The amended petition averred that Father’s rights should be terminated on the

following grounds: incarceration with a sentence of ten years or more and a child under

eight years of age at the time the sentence is entered by the court; abandonment by willful

failure to visit or support; incarceration at the time of the filing of the original petition

and willful failure to visit or support during the four months preceding incarceration;

incarceration at the time of the filing of the original petition with Father having engaged

in conduct prior to incarceration that exhibited a wanton disregard for the welfare of the

Child; severe abuse; and because the Child had been removed from the Father’s home for

six months by the order of a court and the conditions leading to her removal or other

conditions that in all probability would cause the Child to be subjected to further abuse or

neglect still persisted and were unlikely to be remedied (commonly referred to as

“persistence of conditions”).4

On March 30, 2017, a hearing was held on the petition to terminate Father’s

parental rights. Mother, Father, Marie W., David W., Ms. Shaw, and Earon M. testified.

By order of April 25, 2017, the trial court terminated Father’s parental rights on the

following grounds: (1) abandonment by an incarcerated parent with the parent having

exhibited behavior demonstrating a wanton disregard for the welfare of the Child, prior to

his incarceration; (2) Father’s sentence to serve ten years in a correctional facility which

3

The W.’s gave physical custody to the petitioners without the trial court’s knowledge or

permission. However, the trial court later awarded legal custody to the petitioners.

4

In closing arguments, Appellees withdrew their claim of severe abuse, and the trial court did not

rely on the ground in terminating Father’s parental rights. Therefore, we will not address this ground.

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was imposed when the Child was under the age of eight;5 and (3) persistence of the

conditions that led to the Child’s removal. The trial court also found by clear-and-

convincing evidence that termination of Father’s parental rights was in the Child’s best

interest. Father timely appealed.

ISSUES

Father has presented several issues for our review, which we restate as six issues,

as follows:

1. Whether the trial court erred in terminating Father’s parental rights on

the ground of abandonment by incarceration, and upon a showing of

evidence that Father exhibited a wanton disregard for the welfare of the

Child prior to his incarceration.

2. Whether the trial court erred in terminating Father’s parental rights on

the basis of Tennessee Code Annotated Section 36-1-113(g)(6).

3. Whether the trial court erred in terminating Father’s parental rights on

the ground of persistence of conditions.

4. Whether the trial court erred in holding that termination of Father’s

parental rights is in the best interest of the Child.

5. Whether Tennessee Code Annotated Section 36-1-113(g)(6) is

constitutional, as-applied to Father.

6. Whether the trial court committed reversible error by permitting Ms.

Shaw to testify, admitting documents from the dependency and neglect

proceedings, and admitting alleged hearsay from the Child’s medical

records.

STANDARD OF REVIEW

Under both the United States and Tennessee Constitutions, a parent has a

fundamental right to the care, custody, and control of his or her child. Stanley v. Illinois,

405 U.S. 645, 651 (1972); Nash-Putnam v. McCloud, 921 S.W.2d 170, 174 (Tenn. 1996).

While this right is fundamental, it is not absolute, and the right “continues without

5

Father challenged the constitutionality of Tennessee Code Annotated Section 36-1-113(g)(6) at

the trial court level. During the termination hearing, all parties, including the Tennessee Attorney

General, made oral arguments regarding the as-applied constitutional challenge. The trial court denied

Father’s as-applied constitutional challenge at the trial and by separate written order of July 15, 2017.

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interruption only as long as a parent has not relinquished it, abandoned it, or engaged in

conduct requiring its limitation or termination.” See In re Marr, 194 S.W.3d 490, 495

(Tenn. Ct. App. 2005) (citation omitted). The state may interfere with parental rights only

when a compelling interest exists. Nash-Putnam, 921 S.W.2d at 174-75 (citing Santosky

v. Kramer, 455 U.S. 745 (1982)). Our termination statutes identify “those situations in

which the state’s interest in the welfare of a child justifies interference with a parent’s

constitutional rights by setting forth grounds on which termination proceedings can be

brought.” In re W.B., No. M2004-00999-COA-R3-PT, M2004-01572-COA-R3-PT, 2005

WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-

113(g)). A party seeking termination of a parent’s rights to his or her child must prove

both the existence of at least one of the statutory grounds for termination and that

termination is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c); In re D.L.B.,

118 S.W.3d 360, 367 (Tenn. 2003); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

Because of the gravity of the consequences in termination of parental rights cases,

Tennessee courts impose a heightened standard of proof—clear-and-convincing

evidence—for the parent’s benefit. See Tenn. Code Ann. § 36-1-113(c)(1); In re

Carrington H., 483 S.W.3d 507, 522 (Tenn. 2016). The clear-and-convincing-evidence

standard ensures that the facts supporting the statutory grounds for parental rights

termination are highly probable. In re Carrington, 483 S.W.3d at 522. Such evidence

“produces in a fact-finder’s mind a firm belief or conviction regarding the truth of the

facts sought to be established.” In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004).

The heightened burden of proof applies to both the initial determination of

whether statutory grounds for termination have been established and whether termination

is in the best interest of the child. Id. First, the petitioner must establish, by clear-and-

convincing evidence, at least one of the statutory grounds for termination of the parent’s

rights. See Tenn. Code Ann. § 36-1-113(c)(1); In re Angela E., 303 S.W.3d 240, 251

(Tenn. 2010). Second, the petitioner must prove, by clear-and-convincing evidence, that

termination of the parent’s rights is in the child’s best interest. Tenn. Code Ann. § 36-1-

113(c)(2); In re Carrington, 483 S.W.3d at 523 (“The best interests analysis is separate

from and subsequent to the determination that there is clear-and-convincing evidence of

grounds for termination.”) “These requirements ensure that each parent receives the

constitutionally required ‘individualized determination that a parent is either unfit or will

cause substantial harm to his or her child before the fundamental right to the care and

custody of the child can be taken away.’” See In re Carrington, 483 S.W.3d at 523

(quoting In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999)).

In light of the heightened standard of proof in termination of parental rights cases,

a reviewing court must also modify the customary standard of review in Tennessee Rule

of Appellate Procedure 13(d). On appeal, we review the trial court’s findings of fact “de

novo on the record, with a presumption of correctness of the findings, unless the

preponderance of the evidence is otherwise.” In re Taylor B.W., 397 S.W.3d 105, 112

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(Tenn. 2013); Tenn. R. App. P. 13(d). We must then make our “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.” In re Bernard T., 319 S.W.3d 586, 596-97 (Tenn.

2010). We review the trial court’s conclusions of law de novo with no presumption of

correctness. In re J.C.D., 254 S.W.3d 432, 439 (Tenn. Ct. App. 2007).

DISCUSSION

I. TERMINATION OF PARENTAL RIGHTS

The trial court relied on the following statutory grounds in terminating Father’s

parental rights: (1) abandonment by incarceration, with Father having exhibited a wanton

disregard for the Child’s well-being prior to his incarceration; (2) Father’s confinement to

a correctional facility under a sentence of ten years when the Child was approximately

one year old; and (3) persistence of the conditions that led to the Child’s removal.

Although only one ground must be proven by clear-and-convincing evidence in order to

terminate a parent’s rights, the Tennessee Supreme Court has instructed this Court to

conduct our own review to determine whether clear-and-convincing evidence supports

each ground relied upon by the trial court. See In re Carrington, 483 S.W.3d at 523; In re

M.L.P., 228 S.W.3d 139, 144 (Tenn. Ct. App. 2007) (“As long as one statutory ground

for termination is established by the facts in [the] case and termination is in the best

interest of the [child], the trial court’s decision will be sufficiently supported.”)

Accordingly, we will review all three of the foregoing grounds relied upon by the trial

court to determine if at least one statutory ground is established, and if so, whether clear-

and-convincing evidence supports termination of Father’s parental rights.

A. Grounds for Termination

1. Abandonment by Incarceration: Tennessee Code Annotated Section 36-1-

102(1)(A)(iv)

We first turn to review the trial court’s determination that Father abandoned the

Child by engaging in conduct prior to his incarceration that exhibited a wanton disregard

for the Child’s welfare. The termination of a parent’s rights to his or her child may be

initiated as a result of the parent’s abandonment of the child. Tenn. Code Ann. § 36-1-

113(g)(1). “Abandonment” occurs when a parent is incarcerated at the time a petition to

terminate his or her parental rights is filed, and the parent has “engaged in conduct prior

to incarceration that exhibits a wanton disregard for the welfare of the child.”6 Tenn.

6

Tennessee Code Annotated Section 36-1-102(1)(A) provides, in relevant portion:

For purposes of terminating the parental or guardian rights of a parent or parents or a

guardian or guardians of a child to that child in order to make that child available for

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Code Ann. § 36-1-102(1)(A). “We have previously 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 C.T.S., 156

S.W.3d 18, 25–26 (Tenn. Ct. App. 2004). When considering whether this ground for

termination has been established, “Tennessee courts may consider the parent’s behavior

throughout the child’s life, even when the child is in utero.” In re Jai’Shaundria D.L.R.,

No. M2011-02484-COA-R3-PT, 2012 WL 224424, at *4 (Tenn. Ct. App. Jun. 15, 2012).

As this Court has previously explained, “a parent’s incarceration is merely ‘a triggering

mechanism that allows the court to take a closer look at the child’s situation to determine

whether the parental conduct 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 child.’” Id.

(quoting In re Audrey S., 182 S.W.3d 838, 865 (Tenn. Ct. App. 2005)).

As to this ground, the trial court made the following findings:

On or about the 31st day of October, 2014, [Father] pleaded guilty in three

(3) separate felony cases to a total of seven (7) felony charges. While the

first of these three (3) cases occurred prior to the Child’s birth, two (2)

cases encompassing six (6) different felony charges occurred during the

Child’s lifetime.

***

That the minor child was removed from the care of [Father] on or about the

7th day of June, 2014, and adjudicated dependent and neglected due to

environmental and nutritional neglect.

That [Father] continued to engage in criminal activity, which resulted in his

incarceration on or about the 29th day of September 2014, until the 26th day

of August, 2016.

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[.]

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The [Father]’s criminal activity, as well as the previous adjudication for

environmental and nutritional neglect represents a wanton disregard for the

welfare of the minor child.

That [Father]’s behavior was willful and intentional. [Father] made the

choice to engage in behavior that removed him from being able to parent

his child.

The petitioners bore the burden to prove, by clear-and-convincing evidence, that

Father was incarcerated at the time the petition was filed, and exhibited behavior that

displayed a wanton disregard for the welfare of the Child prior to his incarceration. It is

undisputed that Father was incarcerated when the petition was filed on December 7,

2015. The question, then, is whether Father’s behavior prior to incarceration displayed a

wanton disregard for the welfare of the Child. In this regard, the evidence in the record

amply supports the trial court’s finding in the affirmative.

The W.’s testified extensively concerning the dangerous conditions that the Child

was subjected to under Father’s care. Marie W. testified that, before she physically took

custody of the Child, she visited Father’s home daily and found that the Child was not

being fed regularly and her skin was peeling off because of diaper rash. Specifically, the

following exchange occurred when David W. was testifying about the conditions the

Child was subjected to under Father’s supervision:

Q: Now was there anything in particular about the way they treated the

child that gave you cause for concern?

A: The way the child was not taken care of and the diapers changed and all

of that, yes.

Q: . . . could you explain that to the Court[?]

A: Okay. Like, we would have her, you know, we’re going to take [The

Child] We’d have her three to five days, whatever. She’d have a real, real

bad diaper rash. I mean extremely horrible. We’d get it cleaned up, get it

looking good. All right. Then we got things to do for a couple days. All

right. We’d get back, we’d go back over there, we’d take the child back,

same thing; real—just horrible, bad diaper rash.

Q: Is that something that you had tried to discuss with [Mother and Father]?

A: Yes.

Q: And how did they react?

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A: We even bought her a tube of A&D ointment—that’s what we used to

get rid of it—and give it to [Mother] for this purpose.

Marie W. testified that she never witnessed Father change a diaper or feed the Child, and

that Father interacted with the Child minimally and appeared disinterested. David W.

testified that Father regularly spun the Child and dropped the Child in a dangerous way

while “playing.” When David W. told Father to stop, Father responded, “[The Child]

likes it.”

During her first visit to Father’s home, Ms. Shaw observed that the conditions

were unsafe for any child. The trash and laundry on the floor prevented the back door

from closing, and dog urine and plywood covered the floor. After observing that the

Child was showing the physical signs of malnutrition, Ms. Shaw moved forward with her

investigation and sought a physical examination and medical records for the Child. The

Child ultimately spent four days in the hospital recovering.

Father’s criminal behavior outside the home also supports the trial courts finding

that he exhibited a wanton disregard for the welfare of the Child. As mentioned

previously, Father was arrested several times before DCS became involved, and pled

guilty to a total of six felonies in October 2014. When he was released, he violated his

probation. He testified that he smoked marijuana in prison, and that he was living with a

drug user upon his release.

Father’s neglect of the Child and criminal activity demonstrates that he is unfit for

his role as a parent to the Child. Having fully reviewed the record, we find that there is

clear-and-convincing evidence to support the trial court’s termination of Father’s parental

rights on this ground.

2. Incarceration with a Sentence Over Ten Years and a Child Under Age Eight:

Tennessee Code Annotated Section 36-1-113(g)(6)

The trial court terminated Father’s parental rights based upon Tennessee Code

Annotated Section 36-1-113(g)(6), which provides the following as a ground for

termination of parental rights:

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 years of age at the time

the sentence is entered by the court.

Although Father does not take issue with the trial court’s conclusion that clear-and-

convincing evidence supports this ground for termination of his parental rights, we are

required to make our own determination as to whether clear-and-convincing evidence

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supports each ground for termination relied upon by the trial court. See In re Carrington,

483 S.W.3d at 523. Accordingly, we turn to evaluate whether clear-and-convincing

evidence supports this ground for termination.

The petitioners bore the burden to establish, by clear-and-convincing evidence,

that Father was convicted of a crime and sentenced to a prison term of ten or more years,

and the Child was under the age of eight at the time the sentence was entered. Tenn. Code

Ann. § 36-1-113(g)(6). The record indicates that on October 31, 2014, Father was

sentenced to a total of ten years of confinement in the Tennessee Department of

Corrections after pleading guilty to multiple felonies.7 It is undisputed that the Child was

approximately one-year old when Father was sentenced. Accordingly, we conclude that

the record contains clear-and-convincing evidence to support the trial court’s termination

of Father’s parental rights based upon this ground.

3. Persistence of Conditions: Tennessee Code Annotated Section 36-1-113(g)(3)

Parental rights may be terminated for persistence of conditions when:

(g)(3) [t]he child has been removed from the home of the parent . . . 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 . . . 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 . . .

in the near future; and

(C) The continuation of the parent . . . 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). “The purpose behind the persistence of conditions

ground for terminating parental rights is to prevent the child’s lingering in the uncertain

status of foster care if a parent cannot within a reasonable time demonstrate an ability to

7

Specifically, Father pled guilty to felony theft of property, and he was sentenced to three years.

Father pled guilty to aggravated burglary, and he was sentenced to four years to be served consecutive to

his three year sentence. Father also pled guilty to burglary other than a habitation, and he was sentenced

to serve an additional three years consecutive to his sentence for felony theft of property and aggravated

burglary. In total, Father was ordered confined under a sentence of ten years. Father also pled guilty to

several other charges; however, those sentences were to be served concurrently with his sentence of ten

years. Copies of Father’s convictions are contained in the record on appeal.

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provide a safe and caring environment for the child.” See In re Mickia J., No. E2016-

00046-COA-R3-PT, 2016 WL 5210794, at *4 (Tenn. Ct. App. Sept. 19, 2016) (internal

citation and quotation marks omitted). “As a threshold requirement for the applicability

of the ground of persistence of conditions in termination of parental rights cases, the child

must not only have been adjudicated dependent and neglected, but he or she must also

have been removed from the defendant parent’s home.” In re Damien G.M., No. E2016-

02063-COA-R3-PT, 2017 WL 1733867, at *3 (Tenn. Ct. App. May 3, 2017).

The trial court found that petitioners established that Father’s parental rights

should be terminated on the ground of persistence of the conditions that led to the Child’s

removal from his custody. Tenn. Code Ann. § 36-1-113(g)(3). The trial court’s

conclusion was based, in part, on its initial finding that, “the minor child was removed

from the home of [Father] and co-petitioner [Mother] on or about the 7th day of June,

2014, due to allegations of environmental neglect and malnutrition.” However, the record

indicates that the Child was not actually living in Father’s home when DCS became

involved in this case. The testimony of Ms. Shaw, Marie W., and David W. all indicated

that the Child had been living with the W.’s for over a month when DCS initiated its

investigation. The following exchange occurred when Marie W. was asked to explain

how the Child began living at her home a month before DCS began its investigation:

A. [S]he was living with us for a month before DCS come and got her—or

was coming to get her.

Q: Can you describe for the Court how that came to occur?

A: Went over there one day and—I’m sorry. The baby was crying and

[Mother] was in the bed with a pillow over her head. So I just got [the

Child’s] clothes together and I picked [the Child] up and I told [Mother], I

said, I’m taking her home with me. She said, Okay.

Q: Was Father there when this occurred?

A: No.

The ground of persistence of conditions requires both that the child be adjudicated

to be dependent and neglected and that the child be removed from the parent’s home by

DCS. See In re Damien, 2017 WL 1733867, at *4 (citing Tenn. Code Ann. 36-1-

113(g)(3) (“The child has been removed from the home of the parent[.]”). Here, the

record clearly indicates that the Child had already been removed from Father’s home by

Marie W. with the biological parents’ consent at least one month before DCS became

involved. Accordingly, we reverse the trial court as to the grounds of persistence of

conditions.

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B. Best Interest of the Child Analysis

When at least one of the statutory grounds for termination of a parent’s rights to

his or her child has been established, the petitioner must then prove, by clear-and-

convincing evidence, that termination of the parent’s rights is in the child’s best interest.

In re Navada N., 498 S.W.3d 579, 606 (Tenn. Ct. App. 2016) (citing White v. Moody, 171

S.W.3d 187, 192 (Tenn. Ct. App. 1994)). Not all parental misconduct is irredeemable.

See In re Miracle M., No. W2017-00068-COA-R3-PT, 2017 WL 3836020, at * 8 (Tenn.

Ct. App. Aug. 30, 2017). Accordingly, the statutes governing the termination of parental

rights recognize that termination may not always serve the child’s best interest. Id.

However, when the interests of the parent and the child conflict, the courts must always

resolve the conflict in favor of the rights and best interest of the child. Id. Tennessee law

provides that a court may consider the following factors when determining whether

termination of parental rights is in the child’s best interest:

(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 affect 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 and 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 assault

in the family or household;

(7) Whether the physical environment of the parent’s or guardian’s home is

healthy and safe, whether there is criminal activity in the home, or whether

there is such use of alcohol or controlled substances as may render the

parent or guardian consistently unable to care for the child in a safe and

stable manner;

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(8) Whether the parent’s or guardian’s mental and/or emotional status

would be detrimental to the child or prevent the parent or guardian from

effectively providing safe and stable care and supervision for the child; or

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

the child support guidelines promulgated by the department pursuant to §

36-5-101.

Tenn. Code Ann. § 36-1-113(i). The factors enumerated above are not exhaustive, and

“[t]he statute does not require every factor to appear before a court can find that

termination is in a child’s best interest.” Dep’t of Children’s Svcs. v. T.S.W., No. M2001-

01735-COA-R3-PT, 2002 WL 970434, at *3 (Tenn. Ct. App. May 10, 2002). In some

cases, the consideration of a single factor, or facts outside the statutory factors, may

dictate the outcome of the court’s analysis. See In re Miracle, 2017 WL 3836020, at * 8.

The trial court made detailed findings concerning the factors enumerated above,

and concluded that clear-and-convincing evidence supports termination of Father’s

parental rights. We now turn to conduct our own evaluation as to whether clear-and-

convincing evidence supports the trial court’s conclusion that termination of Father’s

parental rights is in the Child’s best interest.

Marie W., David W., and Ms. Shaw testified that the condition of Father’s house

that the Child was being subjected to before moving in with the neighbors was unsafe for

children. Ms. Shaw testified that the home was covered in bugs, trash, laundry, and dog

urine. David W. testified that Father’s home was not properly heated, and Father paid

little to no attention to the Child. David W. testified that he got into several arguments

with Father because Father was “playing” with the Child in a way that the W.’s perceived

to be dangerous and inappropriate. The W.’s both testified that they were very concerned

that the Child was not being properly fed.

Father was in and out of jail during the months preceding the beginning of the

DCS investigation concerning the Child. Father testified that he had absolutely no contact

with the Child from September 29, 2014 to August 26, 2016 because he was incarcerated

after pleading guilty to several felonies, including aggravated burglary. He testified that

he has seen the Child three times since his release from prison, but that the Child did not

recognize who he was during his alleged visits.8 Father testified, “[s]he didn’t call me

daddy. I don’t think she knows me as daddy. She knows [the petitioners] as daddy now

[sic].” Father estimated that he has spent approximately one and a half hours with the

Child since he was imprisoned in September of 2014. He testified that he has never

provided monetary support, diapers, toys, baby food, or other supplies since the Child

8

Marie W. and David W. testified that two out of three of these alleged visits with Father never

occurred.

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began living with the neighbors in May of 2014. Father testified that he had been living

with his girlfriend in a trailer until the week before trial, but they had broken up because

he suspected that she was using drugs.

Earon M. testified that the Child has been doing very well, and the couple intends

to adopt the Child as soon as possible. Earon M. testified that she and her husband have

stable jobs, and they are able and willing to financially support the Child. She reported

that the Child is doing well in pre-school and has many friends. The following exchange

took place when Earon M. was asked to describe her relationship with the Child:

A. I love her so much. She’s the best thing that’s ever happened to me. We

have a very strong mother-daughter bond, we really do. And I would do

anything for her and will continue to.

Q: Okay. What about her relationship with your husband?

A: Well, as you can see, he’s crying. We love her very, very much and

we’re her parents. We’re her mommy and daddy. We’re there when she has

a bad dream. We’re there when she skins her knee. We’re there if she has a

bad day at school. We’re there. We’re mommy and daddy; bottom line.

Earon M. testified that she did not see any benefit in the Child having any visitation with

Father at any time in the future.

Father’s past actions provide little indication that he will be capable of being a

proper parent to the Child at any time in the near future. Earon M. testified that the M.’s

love the Child, and desire to adopt her. Having carefully considered the testimony and

record, we find that clear-and-convincing evidence supports the trial court’s conclusion

that termination of Father’s parental rights is in the best interest of the Child.

II. AS-APPLIED CONSTITUTIONAL CHALLENGE TO TENNESSEE CODE

ANNOTATED SECTION 36-1-113(g)(6).

Father argues that termination of his parental rights based upon Tennessee Code

Annotated Section 36-1-113(g)(6) is unconstitutional, as-applied to him because on

August 26, 2016, after approximately two years in prison, Father was released on parole.9

According to Father, he is now available to parent the Child. Therefore, Father argues,

9

In contrast to a facial challenge, which involves the constitutionality of a statute as written, “[a]n

‘as applied’ challenge to the constitutionality of a statute is evaluated considering how it operates in

practice against the particular litigant and under the facts of the instant case, not hypothetical facts in

other situations.” City of Memphis v. Hargett, 414 S.W.3d 88, 107 (Tenn. 2013). Father concedes that

Tennessee Code Annotated Section 36-1-113(g)(6) is facially constitutional, as we have held in many

other cases. See, e.g., In re T.M.G., 283 S.W.3d 318 (Tenn. Ct. App. 2008).

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the trial court’s reliance on this ground is not narrowly tailored to serve a compelling

state interest, and termination of his rights on this ground would violate his fundamental

right to parent under Article I, Section 8 of the Tennessee Constitution and the Fourteenth

Amendment to the United States Constitution.

Termination of Father’s rights on this ground is irrelevant to the outcome of this

appeal, as we have concluded that clear-and-convincing evidence supports termination of

Father’s parental rights on another ground, and only one of the statutory grounds for

termination must be proven. When the outcome of a constitutional claim is

inconsequential to the outcome of a case, we decline to address the constitutional

question raised. See Haynes v. City of Pigeon Forge, 883 S.W.2d 619, 620 (Tenn. Ct.

App. 1994) (“[U]nder Tennessee law, our courts do not decide constitutional questions

unless the issue’s resolution is absolutely necessary for determination of the case and the

rights of the other parties.”) Accordingly, it is not necessary for us to address this issue,

and it is pretermitted.

III. EVIDENTIARY ISSUES

Appellant claims that the trial court erroneously admitted several forms of

evidence. Before turning to the Appellant’s specific claims of error, we first note that

“[d]ecisions regarding the admission or exclusion of evidence are entrusted to the trial

court’s discretion.” State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008). Thus, reviewing

courts will not disturb these decisions on appeal unless the trial court has abused its

discretion.” Id. (citing State v. Robinson, 146 S.W.3d 469, 490 (Tenn. 2004); State v.

James, 81 S.W.3d 751, 760 (Tenn. 2002)). An abuse of discretion will only be found

where the trial court “applied incorrect legal standards, reached an illogical conclusion,

based its decision on a clearly erroneous assessment of the evidence, or employed

reasoning that causes an injustice to the complaining party.” Id. (citing Konvalinka v.

Chattanooga-Hamilton Cty. Hosp. Auth., 249 S.W.3d 346, 358 (Tenn. 2008)). “An

appellate court should permit a discretionary decision to stand if reasonable judicial

minds can differ concerning its soundness.” White v. Vanderbilt Univ., 21 S.W.3d 215,

222–23 (Tenn. Ct. App. 1999) (citation omitted).

A. DCS Caseworker’s Testimony

Father first argues that the trial court erred by allowing Ms. Shaw, the DCS case

worker, to testify. Specifically, Father argues that Ms. Shaw’s testimony should have

been excluded pursuant to Tennessee Code Annotated Section 37-1-409, which protects

the confidentiality of information included in reports of child abuse, including the

identity of the reporter. However, Tennessee Code Annotated Section 37-5-107

specifically provides that under certain circumstances, such as the circumstances of this

case, DCS may provide otherwise confidential information to the courts for the purpose

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of protecting a child from abuse or neglect.10 These proceedings have the principle

purpose of preventing future neglect of the Child by Father. Accordingly, we discern no

error with the trial court’s decision to admit Ms. Shaw’s testimony.

B. Petition, Affidavit, and Protective Custody Order from the Dependency

and Neglect Proceedings

Father contends that the petition, affidavit of Ms. Shaw, and protective order from

the dependency and neglect proceedings contained hearsay, and should not have been

admitted. We reiterate that the admissibility or exclusion of evidence rests within the trial

court’s discretion, and we will only reverse those evidentiary decisions for an abuse of

discretion. State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008) (citing State v. Robinson,

146 S.W.3d 469, 490 (Tenn. 2004); State v. James, 81 S.W.3d 751, 760 (Tenn. 2002));

Pack v. Boyer, 438 S.W.2d 754, 758 (1968). When Appellant’s attorney objected to the

admission of these documents, the trial judge instructed that the petition, affidavit, and

protective order were not admitted to prove the truth of the matters asserted by the

documents. Rather, the trial judge admitted the aforementioned documents for context,

so that the adjudicatory order could be understood. Father agrees that the Juvenile

Court’s Adjudicatory Order was properly admitted. The information contained in the

aforementioned documents is also contained in the Juvenile Court’s Adjudicatory Order

on dependency and neglect. Furthermore, the Court notes that Tennessee Rule of

Appellate Procedure 36(b) provides, in part:

A final judgment from which relief is available and otherwise appropriate,

shall not be set aside unless, considering the whole record, error involving a

substantial right more probably than not affected the judgment or would

result in prejudice to the judicial process.

The record also contains clear-and-convincing proof in the form of testimony from Marie

W., David W., Earon M., Ms. Shaw, and Father and Father’s criminal records, sufficient

to support this Court’s holding in this case. Accordingly, any error the trial court

committed in admitting hearsay contained in the petition, affidavit, and protective

custody order was harmless, because the judgment is supported by alternative competent

evidence. See Berke v. Chattanooga Bar Ass’n, 436 S.W.2d 296, 304 (Tenn. Ct. App.

10

The statute provides numerous exceptions to the confidentiality of DCS records, including

Tennessee Code Annotated Section 36-1-612(h) which provides:

For purposes directly connected with the administration of this part and part 4 of this

chapter, the department may disclose any relevant information to the court,

administrative board or hearing officer, the parties or their legal representatives in any

proceedings that may be brought in any court, or before any administrative board or

hearing officer, for the purpose of protecting a child or children from child abuse or

neglect or child sexual abuse.

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1968). We discern no reversible error with the admission of the aforementioned

documents.

C. Medical Records & Qualifications of Ms. Shaw to Testify

Father contends that some information contained in the medical records is hearsay

and should have been excluded from the evidence admitted at trial. While Father

concedes that the records themselves fell within the statutory exception to the hearsay

rule, he argues that the particular statements concerning the diagnoses in the records for

failure to thrive, microcephaly, and sexual precocity are hearsay; thus, presenting a case

of hearsay within hearsay and rendering the diagnoses inadmissible. At trial, the judge

indicated that the medical records were admissible as medical records, business records,

or statements made for the purposes of medical diagnosis or treatment. See Tenn. R.

Evid. 803(4); 803(6); 805. As required by the rule, the records were accompanied by an

affidavit from the hospital’s custodian of records. See Tenn. R. Evid. 803(6). The trial

judge gave the limiting instruction that Ms. Shaw’s statements in connection with the

medical records were admissible to show the effect on the listener only in the course of

her investigation—not the truth of the diagnoses.

“‘Hearsay’ is a statement, other than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the truth of the matter asserted.” See

Tenn. R. Evid. 801(c). Because the diagnoses in the medical records were not admitted

for the truth of the matters asserted, the statements were not hearsay.

Furthermore, Tennessee Rule of Evidence 803(4) provides the following exception

to the general ban on hearsay evidence:

Statements made for purposes of medical diagnosis and treatment

describing medical history; past or present symptoms, pain, or sensations;

or the inception or general character of the cause or external source thereof

insofar as reasonably pertinent to diagnosis and treatment.

Furthermore, Tennessee Rule of Evidence 803(6) provides that the

following is not excluded by the hearsay rule:

(6) Records of Regularly Conducted Activity. A memorandum,

report, record, or data compilation, in any form, of acts, events, conditions,

opinions, or diagnoses made at or near the time by or from information

transmitted by a person with knowledge and a business duty to record or

transmit if kept in the course of a regularly conducted business activity and

if it was the regular practice of that business activity to make the

memorandum, report, record or data compilation, all as shown by the

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testimony of the custodian or other qualified witness or by certification that

complies with Rule 902(11) or a statute permitting certification, unless the

source of information or the method or circumstances of preparation

indicate lack of trustworthiness. The term “business” as used in this

paragraph includes business, institution, profession, occupation, and calling

of every kind, whether or not conducted for profit.

Even if the statements had been admitted for their truth, the statements, including

the diagnoses, fell within the exceptions to the hearsay ban, and we discern no error with

their admission.

CONCLUSION

For the forgoing reasons, we reverse the trial court’s termination of Father’s

parental rights on the grounds of persistence of conditions. We affirm the trial court’s

termination of Father’s parental rights on the grounds of abandonment by incarceration

with a sentence over ten years and abandonment by incarceration with Father having

displayed a wanton disregard for the Child’s well-being prior to his incarceration, and its

determination that termination of Father’s parental rights is in the Child’s best interest.

Father’s as applied constitutional challenge is pretermitted. The case is remanded for

such further proceedings as may be necessary and are consistent with this opinion. Costs

of the appeal are assessed against the Appellant, Zachary D. Because Zachary D. is

proceeding in forma pauperis in this appeal, execution for costs may issue if necessary.

_________________________________

ARNOLD B. GOLDIN, JUDGE

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