In Re Michael O.

01/26/2018

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 4, 2017

IN RE MICHAEL O.

Appeal from the Juvenile Court for Tipton County

No. 16-JV-256 William A. Peeler, Judge

___________________________________

No. W2017-01412-COA-R3-PT

___________________________________

The trial court terminated Father’s parental rights on the ground of abandonment

by demonstrating a wanton disregard for his child’s welfare. DCS failed to offer evidence

that Father knew of the child’s existence when Father was engaging in the behavior that

demonstrated wanton disregard. Accordingly, we reverse the termination of Father’s

parental rights.

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

and Remanded

J. STEVEN STAFFORD, P.J.,W.S., delivered the opinion of the court, in which D. MICHAEL

SWINEY, C.J., and ANDY D. BENNETT, J., joined.

Frank Deslaurier, Covington, Tennessee, for the appellant, Anthony O.

Herbert H. Slatery, III, Attorney General and Reporter; Jordan K. Crews, Assistant

Attorney General, for the appellee, State of Tennessee, Department of Children’s

Services.

Michael H. Willis, Covington, Tennessee, Guardian ad Litem.

OPINION

FACTS

Anthony O. (“Father”) is the natural and legal parent of the minor child.1 At the

time of the termination hearing the child was less than one year old. Children’s mother,

Chelsea S. (“Mother”), surrendered her parental rights to the children before the trial

1

In cases originating from juvenile court, it is the policy of this Court to remove the names of

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

-1-

court on November 11, 2016. Therefore, this case arises solely from Father’s appeal of

the termination of his parental rights.

The minor child was born in early June 2016, and placed in the custody of the

Tennessee Department of Children’s Services (“DCS”) on June 17, 2016.2 At this time,

DCS was already working with Mother and Father regarding their three older children,

who had been in DCS custody since August 27, 2015. The three older children were

removed from Mother and Father’s home due to drug use, drug paraphernalia found in

the home, and environmental neglect. See In re Aaralyn O, et al., No. W2017-01411-

COA-R3-PT, 2018 WL 468246 (Tenn. Ct. App. Jan. 18, 2018).

When the minor child was born, Father was incarcerated. Mother had been evicted

from her home prior to the child’s birth; however, Mother was able to stay with a family

friend after the child was born, but this was not a permanent arrangement. Thus, Mother

lacked stable housing. Mother was also prescribed methadone throughout her pregnancy,

and she attended a methadone clinic. After the child was born, meconium test results

confirmed that the child was positive for methadone. This led to the child experiencing

severe withdrawal symptoms during his first few months of life.

On June 14, 2016, Mother took the child to a doctor’s appointment. The child’s

pediatrician later reported that Mother seemed to be under the influence during the

appointment. The pediatrician stated that during the appointment Mother kept falling

asleep and was inattentive to the child. It was also reported that Mother placed the child

in the front seat of her vehicle when she left the doctor’s appointment.

Two days later, on June 16, 2016, Mother reportedly rear-ended another vehicle

while the child was in Mother’s vehicle. Although the child was not injured, Mother was

given a ticket for driving without a license and having no insurance.3 Mother then

contacted DCS social worker Bridget Norfork (“Ms. Norfork”) for assistance with the

child. Upon meeting, Ms. Norfork observed that the child was hungry. Mother informed

Ms. Norfork that she had only a small amount of formula for him at that time; however,

she had an appointment at WIC4 the following Monday and would obtain more formula

then.

2

From the record it appears that following the child’s birth he was hospitalized for a time due to

withdrawal symptoms, but later released from the hospital into Mother’s care.

3

Mother was on probation when the accident occurred, but the record is unclear as to the effect, if

any, of this collision on Mother’s probation.

4

WIC is “The Special Supplemental Nutrition Program for Women, Infants, and Children (WIC)

[that] provides Federal grants to States for supplemental foods, health care referrals, and nutrition

education for low-income pregnant, breastfeeding, and non-breastfeeding postpartum women, and to

infants and children up to age five who are found to be at nutritional risk.” Women, Infants, and Children

(WIC), U.S. DEP’T OF AGRIC. FOOD AND NUTRITION SERV. (last published Aug. 15, 2017),

https://www.fns.usda.gov/wic/women-infants-and-children-wic.

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The child was placed in DCS’s custody on June 17, 2016, based upon DCS’s

determination that Mother and Father made little to no progress in remedying the

conditions that led to the removal of their oldest three children and were non-compliant

with DCS’s recommendations. Thus, Mother’s and Father’s actions, or inactions,

rendered it unsafe for the child to remain in his parents’ care. The child has remained in

DCS’s custody since June 17, 2016, and Father has never met the child.

On November 17, 2016, DCS filed a petition to terminate Father’s parental rights

on the ground of abandonment by an incarcerated parent by exhibiting a wanton

disregard for the child. At the hearing, the trial court heard testimony from Father, Ms.

Norfork, Michelle S. (“Foster Mother”), and Zach S. (“Foster Father”). During his

testimony, Father acknowledged his lengthy criminal history: Father admitted that in

2009, he was convicted of Grand Theft Auto in Florida, where he served twenty-two

months for the crime. Further, Father testified that he was charged with, and pled guilty

to, the intentional sale of a controlled substance in 2012. Father also admitted that he had

violated probation at least four or five times in total.

Additionally, Father affirmed that he was charged with vandalism in September

2015. As a result, Father was found to have violated his probation and, in March 2016,

was sentenced to five years incarceration to be served at thirty percent. Father testified,

however, that with good time credits, his expected release date is January 2018.5

Because the child was born following Father’s current incarceration, Father

acknowledged that he has never met this child.

Father also conceded that he did have a history of drug use and that he had

continued to use drugs intermittently until he was incarcerated in March 2016. However,

he also stated that he had been drug free for approximately fifteen months, essentially the

entire time he had been incarcerated.

Lastly, Father testified that at the time of the termination hearing, he had a job

pursuant to a prison work release program packing boxes at a warehouse. He asserted

that he was paid about $7.25 an hour and earned approximately $190 per week after

paying room and board. Father had, additionally, saved approximately $2,000 at the time

of trial. However, he also admitted that even though he had savings and a steady job, he

had never paid any support to the child at issue.

Ms. Norfork also testified at the May 11 hearing. She asserted that the child was

placed in a pre-adoptive foster home, and his foster family was the only family he had

ever known. Ms. Norfork stated that she had observed the child to be bonded with the

foster family, and in her opinion it would be detrimental to remove the child from his

5

Although the record is not clear that Father’s release on this date is guaranteed, this release date

generally was not disputed by DCS.

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current placement. Foster Mother and Foster Father similarly testified that the child’s

only meaningful parental relationship is with them, that the child has flourished in their

care, and that it would be devastating for the child should he be removed from the only

family he has ever known.

Ultimately, the trial court found each witness credible, including Father as he

“d[id] not deny the facts of the Petition, merely the legal conclusions.” The trial court

also found that based on the evidence presented, there was clear and convincing evidence

that Father abandoned the minor child pursuant to Tennessee Code Annotated sections

36-1-113(g)(1) based on behavior that demonstrated a wanton disregard for the welfare of

the child and it was in the child’s best interest that Father’s parental rights be terminated.

Therefore, the trial court issued a written order on May 16, 2017, terminating

Father’s parental rights and awarding full guardianship to DCS. From this order, Father

appeals.

ISSUE PRESENTED

In his brief, Father raises three issues, arguing that the trial court erred in finding

clear and convincing evidence that Father had substantially failed to comply with the

permanency plans and that the conditions that led to the child’s removal still persist.

Father also argued that the trial court erred in finding that termination of Father’s parental

rights was in the child’s best interest.

As DCS points out in its brief, however, DCS did not pursue nor did the trial court

find the grounds of substantial noncompliance and persistence of conditions. Rather the

only ground at issue in this case is whether DCS proved by clear and convincing

evidence that Father abandoned the child by demonstrating a wanton disregard for the

welfare of the child.6 Accordingly, we will proceed in only analyzing the single ground in

which the trial court terminated parental rights--abandonment by wanton disregard. See

In re Carrington H., 483 S.W.3d 507, 52526 (Tenn. 2016) (“[W]e hold that in an

appeal from an order terminating parental rights the Court of Appeals must review the

trial court’s findings as to each ground for termination and as to whether termination is in

the child’s best interests, regardless of whether the parent challenges these findings on

appeal.”). Based upon our review of the record, we conclude that DCS failed to present

clear and convincing evidence on this ground and therefore do not proceed to consider

the best interest of the child.

6

The grounds argued in Father’s brief relate not to the child at issue but to the grounds that were

alleged against Father as to this child’s three older siblings. See In re Aaralyn O., 2018 WL 468246, at

*512 (affirming the trial court’s decision in terminating Father’s rights on the grounds of failure to

provide a suitable home, abandonment by wanton disregard, substantial noncompliance with the

permanency plans, and persistent conditions).

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STANDARD OF REVIEW

As explained by the Tennessee Supreme Court:

A parent’s right to the care and custody of her child is among the

oldest of the judicially recognized fundamental liberty interests protected

by the Due Process Clauses of the federal and state constitutions. Troxel v.

Granville, 530 U.S. 57, 65 (2000); Stanley v. Illinois, 405 U.S. 645, 651

(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re

Adoption of Female child, 896 S.W.2d 546, 547–48 (Tenn. 1995); Hawk v.

Hawk, 855 S.W.2d 573, 578–79 (Tenn. 1993). But parental rights, although

fundamental and constitutionally protected, are not absolute. In re Angela

E., 303 S.W.3d at 250. “‘[T]he [S]tate as parens patriae has a special duty

to protect minors . . . .’ Tennessee law, thus, upholds the [S]tate’s authority

as parens patriae when interference with parenting is necessary to prevent

serious harm to a child.” Hawk, 855 S.W.2d at 580 (quoting In re

Hamilton, 657 S.W.2d 425, 429 (Tenn. Ct. App. 1983)); see also Santosky

v. Kramer, 455 U.S. 745, 747 (1982); In re Angela E., 303 S.W.3d at 250.

In re Carrington H., 483 S.W.3d 507, 522–23 (Tenn. 2016) (footnote omitted).

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 Jacobe M.J., 434

S.W.3d 565, 568 (Tenn. Ct. App. 2013) (quoting In re W.B., Nos. M2004-00999-COA-

R3-PT, M2004-01572-COA-R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29,

2005)). A person seeking to terminate parental rights must prove both the existence of

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 fundamental nature of the parent’s rights and the grave

consequences of the termination of those rights, courts must require a higher standard of

proof in deciding termination cases. Santosky, 455 U.S. at 769. Consequently, both the

grounds for termination and the best interest inquiry must be established by clear and

convincing evidence. Tenn. Code Ann. § 36-3-113(c)(1); In re Valentine, 79 S.W.3d at

546. Evidence that is clear and convincing “establishes that the truth of the facts asserted

is highly probable . . . and eliminates any serious or substantial doubt about the

correctness of the conclusions drawn from the evidence.” In re Navada N., 498 S.W.3d

579, 590 (Tenn. Ct. App. 2016) (citing In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct.

App. 2004)). As opined by the Tennessee Supreme Court:

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The trial court’s ruling that the evidence sufficiently supports termination

of parental rights is a conclusion of law, which appellate courts review de

novo with no presumption of correctness. In re M.L.P., 281 S.W.3d [387,]

393 [(Tenn. Ct. App. 2009)] (quoting In re Adoption of A.M.H., 215

S.W.3d [793], 810 [(Tenn. 2007)]). Additionally, all other questions of law

in parental termination appeals, as in other appeals, are reviewed de novo

with no presumption of correctness. In re Angela E., 303 S.W.3d at 246.

In re Carrington H., 2016 WL 819593, at *12. However, “[w]hen the resolution of an

issue in a case depends upon the truthfulness of witnesses, the trial judge, who has had

the opportunity to observe the witnesses and their manner and demeanor while testifying,

is in a far better position than this Court to decide those issues.” In re Navada N., 498

S.W.3d at 591 (citing McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn. 1995);

Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997)). Therefore, “this

Court gives great weight to the credibility accorded to a particular witness by the trial

court.” In re Christopher J., No. W2016-02149-COA-R3-PT, 2017 WL 5992359, at *3

(Tenn. Ct. App. Dec. 4, 2017) (citing Whitaker, 957 S.W.2d at 837).

DISCUSSION

In this case, the trial court found one ground for termination: Father abandoned the

child by demonstrating a wanton disregard for his welfare pursuant to Tennessee Code

Annotated section 36-1-113(g)(1). According to Tennessee Code Annotated section 36-

1-102(1)(A)(iv), abandonment has occurred, inter alia, when 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] 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). However, “incarceration alone [is not] a ground

from the termination of parental rights. An incarcerated or recently incarcerated parent

can be found [to have committed] abandonment only if the court finds, by clear and

convincing evidence, that the parent’s pre-incarceration conduct displayed a wanton

disregard for the welfare of the child.” In re Audrey S., 182 S.W.3d 838, 866 (Tenn. Ct.

App. 2005). The statutory language balances the notion that “incarceration is a strong

indicator that there may be problems in the home that threaten the welfare of the child[,]”

yet, “incarceration alone in not an infallible predictor of parental unfitness.” Id.

Therefore, a parent’s incarceration acts as a “triggering mechanism” that allows the court

to examine more closely 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

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unfit or poses a risk of substantial harm to the welfare of the child.” Id. As such, many

cases have held that a “parent’s previous criminal conduct, coupled with a history of drug

abuse, constitutes a wanton disregard for the welfare of the child.” In re Navada N., 498

S.W.3d at 602; see, e.g., State v. J.M.F., No. E2003-03081-COA-R3-PT, 2005 WL

94465, at *8 (Tenn. Ct. App. Jan. 11, 2005); In re C. LaC., No. M2003-02164-COA-R3-

PT, 2004 WL 533937, at *7 (Tenn. Ct. App. Mar. 17, 2004); State v. Wiley, No. 03A01-

9903-JV-00091, 1999 WL 1068726, at *7 (Tenn. Ct. App. Nov. 24, 1999); In the Matter

of Shipley, No. 03A01-9611-JV-00369, 1997 WL 596281, at *5 (Tenn. Ct. App. Sept.

29, 1997). Further, “probation violations, repeated incarceration, criminal behavior,

substance abuse, and the failure to provide adequate support or supervision for a child”

can constitute conduct demonstrating a wanton disregard for the child. In re Audrey S.,

182 S.W.3d at 867–68. Additionally, the court may consider a parent’s behavior prior to

the four months immediately preceding incarceration in finding behavior that exhibited

wanton disregard for the child. See id. at 871.

As a preliminary matter, it is undisputed that Father was incarcerated beginning in

March 2016, and was still incarcerated at the time DCS filed its termination petition in

December 2016. Thus, this ground is clearly applicable. See Tenn. Code Ann. § 36-1-

102(1)(A)(iv) (applying when the parent is incarcerated at or near the filing of the

termination petition). Accordingly, we will proceed in analyzing the evidence presented

regarding this ground.

Turning to the trial court’s order, the trial court made the following findings with

regard to this ground:

c. . . . Mother and Father were together while the child was

conceived.

d. That the Father has a history of violations of probation, criminal

behavior, and habitual drug use, and despite numerous opportunities

to correct behavior, has continued to drag children from ‘pillar to

post’, with no change in behavior. That the Father acknowledges his

criminal conduct, including Grand Theft Auto [in 2009],

Manufacture/delivery/sell controlled substance [in 2012], driving on

a revoked/suspended/cancelled license [in 2013], and numerous

Violations of Probation.

e. That the Father’s continued criminal behavior, even after the

removal of the children, demonstrates a wanton disregard or the

welfare of the children.

Respectfully, we do not agree that these facts support a conclusion that Father exhibited a

wanton disregard for the child at issue.

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In order for a parent to disregard or show indifference to a child, the parent must

know of the child’s existence. See In re Anthony R., No. M2014-01753-COA-R3-PT,

2015 WL 3611244, at *3 (Tenn. Ct. App. June 9, 2015) (“Logically, a person cannot

disregard or display indifference about someone whom he does not know exists.”); see

also In re Jeremiah T., No. E2008-02099-COA-R3-PT, 2009 WL 1162860, at *1 (Tenn.

Ct. App. Apr. 30, 2009) (noting that the parent’s poor conduct need not occur only in the

four months preceding the filing of the termination petition, but relying on criminal

conduct that occurred after the births of the children); In re Audrey S., 182 S.W.3d at 871

(holding that the trial court may consider poor conduct that occurred prior to the four

months preceding the filing of the termination petition, but citing only criminal conduct

that occurred following the birth of the child). In Tennessee, any person under the age of

eighteen is considered a child. See Tenn. Code Ann. § 36-1-102(13). However, this

Court has often extended the meaning of child to include not only the time after birth but

also the period of time before birth but after conception when analyzing the ground of

abandonment by wanton disregard for the welfare of the child. See, e.g., In re E.C., No.

E2016-02582-COA-R3-PT, 2017 WL 2438574, at *12 (Tenn. Ct. App. June 6, 2017)

(holding that it was inappropriate to consider the parent’s poor conduct prior to his

knowledge of the child’s existence); In re Jocilyn M.P., 435 S.W.3d 773, 782 (Tenn. Ct.

App. 2014) (considering criminal charges against father “from the discovery of

[mother’s] pregnancy”); In re O.J.B., No. W2009-00782-COA-R3-PT, 2009 WL

3570901, at *5 (Tenn. Ct. App. Nov. 2, 2009) (considering the fact that mother ingested

drugs while she was pregnant with the child and pled guilty to additional criminal charges

shortly after the child’s birth); State of Tenn., Dep’t of Children’s Servs. v. Harville, No.

E2008-00475-COA-R3-PT, 2009 WL 961782, at *8 (Tenn. Ct. App. Apr. 9, 2009)

(finding that mother demonstrated a wanton disregard for the child’s welfare by exposing

the child to cocaine in utero). Thus, even though the statutory meaning of the word

“child” encompasses the time at which the child was conceived up until its eighteenth

birthday, we must construe Tennessee Code Annotated section 36-1-102(1)(A)(iv) “to

require that the father has knowledge of the child at the time his actions constituting

wanton disregard are taken.” In re E.C., 2017 WL 2438574, at *12 (quoting In re

Anthony R., 2015 WL 3611244, at *3).

After a review of the record, it appears to this Court that the trial court failed to

consider Father’s knowledge of the child’s existence in its findings on this factor. Here,

none of Father’s criminal conduct occurred after the birth of the child. The child was born

in early June 2016. Clearly, then, the trial court’s reliance on Father’s criminal conduct

in 2009, 2012, and 2013, years before the child at issue’s birth, was in error. See In re

E.C., 2017 WL 2438574, at *12 (Tenn. Ct. App. June 6, 2017) (holding that father’s

criminal activity that occurred prior to the father’s knowledge of the conception of the

child was insufficient to support this ground).7

7

DCS does not cite any authority to suggest that criminal conduct that occurs during an older

-8-

Less clear, however, is whether the trial court erred in considering Father’s

September 2015 vandalism charge, which ultimately led to Father’s incarceration in

March 2016, in making its wanton disregard determination.8 Although the trial court

found that Mother and Father were “together” when the child was conceived, the trial

court made no finding as to whether Father was aware of Mother’s pregnancy at the time

he committed this crime. See In re Anthony R., 2015 WL 3611244, at *3 (requiring that

the father know of the child’s existence). The trial court’s lack of finding on this issue is

unsurprising, as after a thorough review of the record, we can find no evidence that meets

the clear and convincing standard to show that Father had knowledge of the existence of

the child prior to his birth.

We note that the burden of proof in a parental termination case falls on the party

seeking to terminate parental rights. Thus, the burden falls on DCS, not Father, to prove

Father’s wanton disregard of the child by clear and convincing evidence Tenn. Code

Ann. § 36-1-113(c)(1); In re Audrey S., 182 S.W.3d at 861 (“Because the stakes are so

profoundly high, Tenn. Code Ann. § 36-1-113(c)(1) requires persons seeking to terminate

a biological parent’s parental rights to prove the statutory grounds for termination by

clear and convincing evidence.”). After a thorough review of the record, we conclude

that DCS failed to provide any evidence that Father knew of the child’s conception at the

time he committed the criminal act that DCS now contends constituted a wanton

disregard for the child’s welfare. DCS did offer evidence that (1) Father was the

biological father of this child; (2) Father’s name was listed on the birth certificate; (3)

Mother and Father lived together at some points from September 2015 to March 2016;

and (4) Mother and Father were married prior to September 2015 and were still married

at the time of trial. Thus, while there is no dispute that Father is the biological and legal

parent of the child, this evidence fails to establish at what point Father knew or even

suspected that Mother was pregnant with the child at issue. DCS alleges, however, that

the child was likely conceived around September 2015, the same time that Father

committed the vandalism that led to the violation of his probation. Even assuming that

the child was conceived in September 2015, however, this evidence alone does not

establish by clear and convincing evidence that Father knew of the child’s existence at

sibling’s life should automatically be applied in the case of an after-born child. Indeed, nothing in section

36-1-102(1)(A)(iv) indicates that this ground should apply regardless of whether the wanton disregard

was exhibited toward the child, his or her siblings, or other children in the home, unlike the ground of

severe abuse. See generally Tenn. Code Ann. § 36-1-102(1)(A)(iv) (requiring that the parent’s conduct

show a wanton disregard for “the child” without reference to siblings); but see Tenn. Code Ann. § 36-1-

113(g)(4) (applying the severe abuse ground where the parent has committed severe abuse “against the

child who is the subject of the petition or against any sibling or half-sibling of such child, or any other

child residing temporarily or permanently in the home of such parent or guardian”). As such, we consider

only conduct that exhibited a wanton disregard to the child at issue in this case.

8

It seems that Father was arrested again in November, 2015, and incarcerated for a short time

following this arrest; however, we have found no evidence that Father was ever convicted as a result of

the November 2015 arrest.

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this early date.

We note, however, that the record does suggest that Mother was aware of her

pregnancy prior to the birth because an order in the dependency and neglect proceeding

states that Mother had been ordered to attend a methadone clinic during the pregnancy

and advised that the child could test positive for methadone once born. Nothing in the

record, however, indicates the timeline for Mother’s own discovery of her pregnancy and

subsequent treatment at the methadone clinic. Because Father testified without dispute

that he and Mother were not in a relationship throughout the proceedings at issue,9 we

cannot conclude that Mother’s knowledge of the child’s existence at some unspecified

point in her pregnancy should be imputed to Father, especially at the early date of

September 2015. Instead, Father was simply never asked at trial the date upon which he

or Mother discovered the pregnancy. Respectfully, given the stringent standard applicable

in termination of parental rights cases, we cannot merely assume Father’s knowledge in

the absence of proper evidence. Thus, the trial court erred in relying on any of Father’s

admitted criminal conduct in this case because DCS failed to prove that any of this

conduct occurred at a time when Father was aware of the existence of the child.

As noted above, however, criminal conduct is not the only type of conduct that can

constitute a wanton disregard for the child. See In re Audrey S., 182 S.W.3d at 867–68.

We therefore proceed to consider if DCS met its burden to show any other conduct on the

part of Father that exhibits a wanton disregard for the child. While it was undisputed by

Father that he continued to abuse drugs until his incarceration in March 2016, Father’s

abuse of drugs suffers the same malady that befell the evidence of his criminal conduct:

there is no evidence in the record to show that Father knew of the child’s existence at the

time he was using illegal drugs. Rather, the only evidence concerning Father’s drug use

following the birth of the child was that Father had not used illegal drugs following his

incarceration in March 2016. While refraining from drug use in jail is often insufficient to

show that a parent’s drug use has been remedied, see In re Navada N., 498 S.W.3d 579,

606 (Tenn. Ct. App. 2016) (noting that a parent’s cessation of drug use while incarcerated

is not sufficient to show that parent had resolved their drug problem), it is relevant in this

case to the extent that it illustrates the lack of evidence that Father’s drug use occurred

following the birth of the child at issue. Again, while it is possible that Father knew of the

child’s existence prior to his current incarceration, as Mother appears to have known at

some point prior to the child’s birth, assumptions and surmises regarding Father’s

knowledge do not meet the clear and convincing standard necessary to justify the

permanent termination of his parental rights on this ground. Thus, with no evidence or

testimony regarding Father’s knowledge of the existence of the child while he was using

illegal drugs, we conclude that the trial court also erred in considering Father’s illegal

9

For example, Father testified that he and Mother lived together until September 2015 and other

evidence suggests that they were together as late as November 2015. Still, the evidence does not clearly

and convincingly show that Mother herself discovered her pregnancy prior to November 2015.

- 10 -

drug use up until March 2016 in its wanton disregard determination.

Finally, DCS argues that the wanton disregard ground has been shown by proof

that Father failed to support the child despite his ability to do so. As previously discussed,

“the failure to provide adequate support . . . for a child can, alone or in combination,

constitute conduct that exhibits a wanton disregard for the welfare of a child.” In re

Audrey S., 182 S.W.3d at 86768. As an initial matter, we note that the trial court made

no specific findings regarding Father’s failure to provide adequate support for the child.

Nevertheless, the evidence at trial was undisputed that Father paid no support for the

child despite the fact that he was working in prison and had saved a considerable sum of

money, approximately $2,000.00. While we have previously held that “a single instance

of bad conduct can lead to a finding of abandonment by wanton disregard,” In re E.C.,

2017 WL 2438574, at *13, we have also noted that certain “redeeming factors” may be

considered to show that the single instance of bad conduct does not rise to the level of

wanton disregard. Id. (noting that evidence of “redeeming factors” in the record shows

that the father was willing to take care of the child). For example, this Court has

previously held that a parent’s decision to engage in a single instance of non-violent

criminal conduct that resulted in a jail sentence was insufficient to show wanton

disregard where the parent had made a considerable effort to parent the child while not

incarcerated. Id.

Redeeming factors in this case likewise militate against the conclusion that

Father’s failure to support, alone, is sufficient to show a wanton disregard for the child.

As an initial matter, Father testified at trial that he had asked the DCS caseworker about

where to send support, but that his offer was discouraged. The trial court in this case

expressly found that Father was a credible witness and we will not overturn the trial

court’s findings that rest on credibility absent clear and convincing evidence to the

contrary. See Wells v. Tennessee Bd. of Regents, 9 S.W.3d 779, 783 (Tenn. 1999)

(“[A]ppellate courts will not re-evaluate a trial judge’s assessment of witness credibility

absent clear and convincing evidence to the contrary.”) (citing Humphrey v. David

Witherspoon, Inc., 734 S.W.2d 315, 315–16 (Tenn. 1987); Bingham v. Dyersburg

Fabrics Co., Inc., 567 S.W.2d 169, 170 (Tenn. 1978)).10 Moreover, the evidence in the

record was undisputed that Father completed anger management, relapse prevention, and

parenting courses while incarcerated. While these actions proved “too little too late” with

regard to Father’s three older children who had been in DCS custody for some time, the

completion of these courses occurred within the six months following the child at issue’s

birth. See In re Aaralyn O., 2018 WL 468246, at *10. Thus, Father’s conduct following

10

The DCS caseworker’s testimony was not clear as to whether DCS specifically requested

support from Father. Nevertheless, it is well-settled that parents have a duty to support their children

regardless of whether support has been ordered by the court. See In re Makenzie L., No. M2014-01081-

COA-R3-PT, 2015 WL 3793788, at *20 (Tenn. Ct. App. June 17, 2015), perm. app. denied, (Tenn. Oct.

15, 2015).

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the birth of the child, considered in toto, does not rise to the level of “unrestrainedly

excessive” disregard for the child. See The American Heritage College Dictionary 1544–

45 (4th ed.) (defining “wanton” as “[u]nrestrainedly excessive”). Consequently, even

though Father is ultimately unable to parent this child at this time due to his incarceration,

the evidence presented at trial was insufficient to show that Father continued to engage in

conduct following the birth of the child that amounted to a wanton disregard for the

child’s welfare.

In sum, DCS failed to prove that Father engaged in any criminal conduct or illegal

drug use after he became aware of the existence of the child. While it was undisputed

Father failed to provide support for the child despite his ability to do so, this fact, alone,

does not reach the elevated standard of clear and convincing evidence and thus, is

insufficient to support a finding of wanton disregard given other facts in the record. See

In re Navada N., 498 S.W.3d at 590 (noting that in parental termination cases the

standard of proof is elevated to clear and convincing, which courts generally define as

“evidence [that] establishes that the truth of the facts asserted is highly probable . . . and

eliminates any serious or substantial doubt about the correctness of the conclusions drawn

from the evidence.”). As such, the trial court erred in terminating Father’s parental rights

on the ground of abandonment by wanton disregard.

We acknowledge the disparate result in this case in relation to the child’s older

siblings, where we determined that the evidence clearly supported a determination that

terminating the parental relationship with Father would serve their best interests, due in

large part to the fact that Father has no meaningful relationship with the older children

due to his current incarceration. See In re Aaralyn, 2018 WL 468246, at *13–14.

Likewise, in this case, Father’s decision to engage in criminal conduct prior to the child’s

birth means that he not only has no meaningful relationship with this child, but no

relationship with him whatsoever. In this case, however, we do not reach the issue of

whether termination is in the child’s best interest because the proof presented by DCS

was insufficient to substantiate the single ground for termination alleged. See White v.

Moody, 171 S.W.3d 187, 192 (Tenn. Ct. App. 1994) (noting that the court considers best

interest once a ground for termination has been proven).

CONCLUSION

The judgment of the Tipton County Juvenile Court is reversed, and this cause is

remanded for further proceedings consistent with this Opinion. The costs of this appeal

are taxed to the Department of Children’s Services for which execution may issue if

necessary.

_________________________________

J. STEVEN STAFFORD, JUDGE

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