In Re Lailonnii J.

02/19/2019

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs December 3, 2018

IN RE LAILONNII J. ET AL.

Appeal from the Juvenile Court for Knox County

No. 153990 Timothy E. Irwin, Judge

No. E2018-01198-COA-R3-PT

Father appeals the trial court’s decision to terminate his parental rights to two children on

the grounds of (1) incarceration under a sentence of ten or more years, and the children

were under eight at the time the sentence was entered, (2) wanton disregard for the

welfare of the children, and (3) failure to manifest an ability and willingness to personally

assume legal and physical custody or financial responsibility of the children, and placing

the children in Father’s care would pose a risk of substantial harm to the physical and

psychological welfare of the children. He further challenges the trial court’s finding by

clear and convincing evidence that termination of his parental rights was in the best

interest of the children. We affirm in part and vacate in part.

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

Part, Vacated in Part

ANDY D. BENNETT, J., delivered the opinion of the Court, in which J. STEVEN STAFFORD,

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

Gregory E. Bennett, Seymour, Tennessee, for the appellant, Lonnie A. J.

Herbert H. Slatery, III, Attorney General and Reporter, and Amber L. Seymour, Assistant

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

OPINION

I. FACTUAL AND PROCEDURAL BACKGROUND

Ebonii W. (“Mother”) and Lonnie A. J. (“Father”) are the biological parents of

LaiLonnii J., born in July 2015, and Laishonnii W., born in March 2017; Mother and

Father never married. Although Father was listed on the birth certificate of LaiLonnii

only, he does not dispute being the father of both children. Mother also has a child from

a previous relationship who is not involved in this case.

Father has an extensive criminal history. His prior convictions include driving on

a revoked or suspended license, evading arrest, simple possession, underage consumption

of alcohol, unlawful possession of a weapon, and possession with intent to go armed

while under the influence. Although these convictions occurred before the children were

born, Father continued to engage in criminal activity after the birth of LaiLonnii in July

2015.

On January 28, 2016, Father was arrested and charged with especially aggravated

robbery, simple possession, evading arrest, and criminal impersonation for offenses that

occurred in October 2015. He remained incarcerated until he was released on bond on

February 3, 2016. While Father was out on bond, Laishonnii was conceived.

Unfortunately, Father was arrested again on September 9, 2016, after it was discovered

that his bond had been set too low for the charges against him. He then entered a guilty

plea to the lesser-included offense of robbery, and the remaining charges against him

were dismissed pursuant to the plea agreement. Father has remained incarcerated since

his arrest on September 9, 2016. On December 14, 2017, he received a sentence of ten

years to be served in the Tennessee Department of Correction.

The Tennessee Department of Children’s Services (“the Department” or “DCS”)

removed the children from Mother’s custody in March 2017 after she tested positive for

opiates when Laishonnii was born. Following the removal, DCS placed the children in

the home of their maternal uncle and aunt, and they have continuously resided there since

that time. On December 28, 2017, the trial court adjudicated the children dependent and

neglected due to Mother’s drug use and Father’s incarceration.

The Department filed its petition to terminate Father’s parental rights on January

12, 2018.1 DCS alleged that termination of Father’s parental rights was warranted on the

grounds of (1) confinement in a correctional or detention facility under a sentence of ten

or more years, and the children were under eight years old when the sentence was

entered, (2) wanton disregard for the welfare of the children, and (3) failure to manifest,

by act or omission, an ability and willingness to personally assume legal and physical

custody or financial responsibility for the children, and placing the children in his legal

and physical custody would pose a risk of substantial harm to the physical and

psychological welfare of the children.

1

In a separate proceeding, the Department also sought to terminate Mother’s parental rights. Mother

voluntarily surrendered her parental rights during the proceedings to terminate Father’s parental rights.

She is not a party to this appeal.

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The trial court heard the matter on June 7, 2018. Father was present at the

hearing, and the Department called him as its first witness. He testified that, while

waiting to be sentenced for his robbery conviction, he submitted to an assessment to

determine whether he would be assigned to a day reporting center as an alternative to

going to prison. During the assessment, he reported that he began using cocaine at age

twelve and began selling drugs at age thirteen. At the termination hearing, however, he

denied ever using cocaine and denied selling drugs at age thirteen. Father stated, “I told

some lies when I got interviewed. My ultimate goal was to try to get out [of

incarceration].” He admitted to using alcohol and marijuana.

Prior to Father’s incarceration, he paid the bills, ensured that the children were fed,

and made certain that they were in a safe place. He testified that he loved his children

and that he wanted “to get out and do right.” In an effort to improve himself while

incarcerated, Father has taken a parenting class, participated in Alcoholics Anonymous,

and taken several substance abuse classes. According to Father, he had not received any

disciplinary infractions since being incarcerated and he would be eligible for parole in

2019 or 2020.

Father agreed that the children needed to be supported, encouraged, and provided

for, and he admitted that he could not do these things while incarcerated. Although

Father acknowledged that the children’s lives should not be put on hold until he is out of

prison, he believed that his parental rights should not be terminated. He stated, “I don’t

feel like it’s fair to me not to never ever see my kids again. I don’t believe I did that

much damage to them, I haven’t did nothing.” Father testified that it did not matter to

him who had custody of the children but that he wanted to remain a part of their lives.

The Department’s next witness was Wendy Wittenbarger, the DCS case worker

assigned to the case in January 2018. She testified that all contact between Father and the

children had to go through DCS, and she had no records showing that Father ever sent

any letters, cards, or pictures to the children. Ms. Wittenbarger acknowledged that she

did not personally advise Father he could contact the children, but she believed that a

previous case worker had informed him how to contact DCS.

Finally, the maternal uncle, Mr. Foster,2 testified on behalf of the Department.

The children have continuously lived with him and his wife since being removed from

Mother’s custody. Mr. Foster stated that, in addition to the children, his child and the

children’s half-sibling lived in his home. All of the children “g[ot] along just like normal

kids” and related to each other “like a normal family.” Both Mr. and Mrs. Foster work,

and they are able to provide the care and stability the children need. The Fosters love the

children and intend to adopt them if they become available for adoption.

2

The trial court referred to the maternal uncle as “Mr. Foster” in order to protect the identity of the

children.

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In an order entered on June 13, 2018, including findings of fact and conclusions of

law, the trial court determined that three grounds for termination had been proven by

clear and convincing evidence: (1) incarceration under a sentence of ten or more years,

and the children were under eight at the time the sentence was entered, (2) wanton

disregard for the welfare of the children, and (3) failure to manifest an ability and

willingness to personally assume legal and physical custody or financial responsibility of

the children, and placing the children in Father’s care would pose a risk of substantial

harm to the physical and psychological welfare of the children. The trial court further

found that there was clear and convincing evidence that termination of Father’s parental

rights was in the best interest of the children. Father timely appealed.

We consolidate and restate the issues raised by Father on appeal as follows: (1)

whether the trial court erred in finding by clear and convincing evidence that grounds

existed to terminate Father’s parental rights, (2) whether the trial court erred in

determining that termination of Father’s parental rights was in the best interest of the

children, and (3) whether Father received ineffective assistance of trial counsel during the

termination proceedings.

II. STANDARD OF REVIEW

Under both the federal and state constitutions, a parent has a fundamental right to

the care, custody, and control of his or her own child. Stanley v. Illinois, 405 U.S. 645,

651 (1972); In re Angela E., 303 S.W.3d 240, 249-50 (Tenn. 2010); Nash-Putnam v.

McCloud, 921 S.W.2d 170, 174-75 (Tenn. 1996) (citing Nale v. Robertson, 871 S.W.2d

674, 678 (Tenn. 1994)). Although this right is fundamental, it is not absolute and may be

terminated in certain situations. In re Angela E., 303 S.W.3d at 250. Our legislature has

identified “‘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., IV., Nos. M2004-00999-COA-R3-PT,

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

Tennessee Code Annotated section 36-1-113 provides the grounds and procedures

for terminating parental rights. First, a petitioner seeking to terminate parental rights

must prove that at least one ground for termination exists. Tenn. Code Ann. § 36-1-

113(c)(1); In re Angela E., 303 S.W.3d at 251. Second, a petitioner must prove that

terminating parental rights is in the child’s best interest. Tenn. Code Ann. § 36-1-

113(c)(2); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).

The termination of a parent’s rights is one of the most serious decisions courts

make because “[t]erminating parental rights has the legal effect of reducing the parent to

the role of a complete stranger,” In re W.B., IV, 2005 WL 1021618, at *6, “and of

‘severing forever all legal rights and obligations of the parent or guardian.’” Id. (quoting

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Tenn. Code Ann. § 36-1-113(l)(1)). Consequently, a parent has a constitutional right to

fundamentally fair procedures during termination proceedings. In re Hannah C., No.

M2016-02052-COA-R3-PT, 2018 WL 558522, at *2 (Tenn. Ct. App. Jan. 24, 2018)

(citing In re Carrington H., 483 S.W.3d 507, 522 (Tenn. 2016)).

Tennessee law ensures fundamental fairness in termination proceedings by

requiring a heightened standard of proof—clear and convincing evidence. See Tenn.

Code Ann. § 36-1-113(c)(1); In re Carrington H., 483 S.W.3d at 522. Before a parent’s

rights may be terminated, a petitioner must prove both the grounds and the child’s best

interest by clear and convincing evidence. Tenn. Code Ann. § 36-1-113(c); In re

Valentine, 79 S.W.3d at 546. “Clear and convincing evidence ‘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 Serenity B.,

No. M2013-02685-COA-R3-PT, 2014 WL 2168553, at *2 (Tenn. Ct. App. May 21,

2014) (quoting In re M.J.B., 140 S.W.3d 643, 653 (Tenn. Ct. App. 2004)).

We review the trial court’s findings of fact de novo with a presumption of

correctness unless the evidence preponderates otherwise. TENN. R. APP. P. 13(d); In re

Serenity B., 2014 WL 2168553, at *2. In light of the heightened standard of proof, we

must then make our own determination “as to whether the facts, either as found by the

trial court or as supported by a preponderance of the evidence, amount to clear and

convincing evidence of the elements necessary to terminate parental rights.” In re

Carrington H., 483 S.W.3d at 524.

III. ANALYSIS

I. Grounds for Termination

A. Incarceration under a Ten-Year Sentence

The trial court relied on Tenn. Code Ann. § 36-1-113(g)(6) as a ground for

terminating Father’s parental rights. This statute provides that a parent’s rights may be

terminated if:

The parent has been confined in a correctional or detention facility of any

type, by order of the court as a result of a criminal act, under a sentence of

ten (10) or more years, and the child is under eight (8) years of age at the

time the sentence is entered by the court.

Tenn. Code Ann. § 36-1-113(g)(6). When considering Tenn. Code Ann. § 36-1-

113(g)(6) as a ground for terminating a parent’s rights, a court “need not look beyond the

judgment of conviction and the sentence imposed by the criminal court in order to

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determine whether this ground for termination applies.” In re Audrey S., 182 S.W.3d

838, 876 (Tenn. Ct. App. 2005).

Here, the record includes a certified copy of Father’s judgment of conviction that

expressly states that he received a ten-year sentence for his robbery conviction. There is

no dispute that both children were under the age of eight when this sentence was entered.

Father argues, however, that he did not actually receive a ten-year sentence. The

judgment of conviction states that Father received credit toward the ten-year sentence for

the time he spent incarcerated prior the entry of the judgment: January 28, 2016, through

February 3, 2016; and September 9, 2016, through December 14, 2017. Father argues

that, after calculating these presentence jail credits, he was actually under a sentence of

nine years, six months and six days.

With respect to the effect presentence jail credits have on a sentence received, the

Tennessee Supreme Court has stated, in pertinent part, as follows:

Although pretrial jail credits allow a defendant to receive credit against his

sentence for time already served, awarding . . . pretrial jail credits does not

alter the sentence in any way, although it may affect the length of time a

defendant is incarcerated.

State v. Brown, 479 S.W.3d 200, 212 (Tenn. 2015). Therefore, the fact that Father

received presentence jail credits does not alter the sentence Father received. He was still

incarcerated under a criminal sentence of ten years. The only effect the presentence jail

credits may have is on the length of time Father spends incarcerated.

Tennessee Code Annotated section 36-1-113(g)(6) is explicit and absolute. See In

re D.M., No. M2009-00340-COA-R3-PT, 2009 WL 2461199, at *3 (Tenn. Ct. App. Aug.

12, 2009). If a parent is confined in any type of facility under a criminal sentence of ten

or more years and the child is under the age of eight when the sentence is entered, the

conditions of the statute are met and grounds exist to terminate that parent’s rights. Id.

The statute does not “expressly provide that the actual period of confinement must

amount to 10 or more years.” In re Chandler M., No. M2013-02455-COA-R3-PT, 2014

WL 3586499, at *7 (Tenn. Ct. App. July 21, 2014). Thus, “[i]t does not matter if the

parent may serve less than the 10-year sentence,” In re D.M., 2009 WL 2461199, at *3,

or when the parent served the sentence. See id. at *2-3 (terminating a father’s parental

rights based on Tenn. Code Ann. § 36-1-113(g)(6) even though he had completed his ten-

year sentence prior to the termination proceedings).

In the present case, the conditions in Tenn. Code Ann. § 36-1-113(g)(6) were met

when the judgment of conviction was entered on December 14, 2017, sentencing Father

to ten years imprisonment, and both children were under the age of eight when the

sentence was entered. We, therefore, conclude that clear and convincing evidence

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supports the termination of Father’s parental rights pursuant to Tenn. Code Ann. § 36-1-

113(g)(6).

B. Abandonment by Wanton Disregard

We next consider the trial court’s termination of Father’s parental rights pursuant

to Tenn. Code Ann. § 36-1-113(g)(1), which provides that a parent’s rights may be

terminated where the parent abandons the child, as defined in Tenn. Code Ann. § 36-1-

102. Pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(iv), abandonment is defined to

include a parent who is incarcerated at the time when the termination petition is filed and

who “has engaged in conduct prior to incarceration that exhibits a wanton disregard for

the welfare of the child.” Father argues that the trial court’s ruling should be reversed

because the court failed to make sufficient findings of fact as to this ground. Specifically,

he asserts that the trial court failed to make a finding of fact as to what conduct he

engaged in that constituted a wanton disregard for the welfare of the children.

Tennessee Rule of Civil Procedure 52.01 provides, in pertinent part, that “[i]n all

actions tried upon the facts without a jury, the court shall find the facts specially and shall

state separately its conclusions of law and direct the entry of the appropriate judgment.”

In determining whether a trial court has complied with Rule 52.01, our Supreme Court

has stated:

There is no bright-line test by which to assess the sufficiency of factual

findings, but “the findings of fact must include as much of the subsidiary

facts as is necessary to disclose to the reviewing court the steps by which

the trial court reached its ultimate conclusion on each factual issue.”

Lovlace v. Copley, 418 S.W.3d 1, 35 (Tenn. 2013) (quoting 9C Charles A. Wright &

Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE § 2579, at 328 (3d ed. 2005)). As

a result, “[s]imply stating the trial court’s decision, without more, does not fulfill [the

Rule 52.01] mandate.” Barnes v. Barnes, No. M2011-01824-COA-R3-CV, 2012 WL

5266382, at *8 (Tenn. Ct. App. Oct. 24, 2012).

Specific findings of fact and conclusions of law serve three purposes. Lovlace,

418 S.W.3d at 34. First, they facilitate appellate review by providing the reviewing court

with “a clear understanding of the basis of a trial court’s decision.” Id. Second, these

findings clarify which issues the trial court is deciding so that the doctrines of estoppel

and res judicata may be applied in future cases. Id. at 35. Third, this requirement serves

“‘to evoke care on the part of the trial judge in ascertaining and applying the facts,’”

reducing the likelihood a case will be appealed. Id. (quoting 9C FEDERAL PRACTICE AND

PROCEDURE § 2571, at 221-22).

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To support his argument that the trial court failed to make sufficient findings of

fact, Father points to the court’s oral ruling made at the conclusion of trial. Father fails to

address the written order the trial court entered shortly after its oral ruling. “No principle

is better known than that which states that a Court speaks through its orders and decrees

entered upon the minutes of the Court.” Palmer v. Palmer, 562 S.W.2d 833, 837 (Tenn.

Ct. App. 1977). As this court has previously stated, “‘[a] judgment must be reduced to

writing in order to be valid. It is inchoate, and has no force whatever, until it has been

reduced to writing and entered on the minutes of the court . . . .’” Cunningham v.

Cunningham, No. W2006-02685-COA-R3-CV, 2008 WL 2521425, at *5 (Tenn. Ct. App.

June 25, 2008) (quoting Broadway Motor Co., Inc. v. Fire Ins. Co., 12 Tenn. App. 278,

280 (Tenn. Ct. App. 1930)). Therefore, we will consider the trial court’s written order,

not its oral ruling, to determine whether it made sufficient findings of fact in relation to

this ground.

The trial court’s written order contains the following relevant findings of fact:

The Court further finds that prior to his incarceration, [Father]

engaged in conduct which exhibits a wanton disregard for the welfare of the

children. The crime that led to his current imprisonment was committed

when LaiLonnii was just 3 months old. Although [Father] managed to

remain in the community for a short period of time, he ended up back in jail

in September 2016 and remained there continuously until his transfer to

prison. He was in jail when Laishonnii was born; he went to jail just two

months after LaiLonnii’s first birthday.

These findings of fact show that the trial court found that the robbery Father committed

and his repeated incarceration constituted conduct exhibiting a wanton disregard for the

welfare of the children. These findings of fact provide a clear understanding of the basis

of the trial court’s decision. See Hardin v. Hardin, No. W2012-00273-COA-R3-CV,

2012 WL 6727533, at *5 (Tenn. Ct. App. Dec. 27, 2012). We conclude that the trial

court’s written order satisfies the requirements of Rule 52.01.

Father next asserts that the trial court erred in terminating his rights based on this

ground because DCS failed to prove wanton disregard by clear and convincing evidence.

Unlike the willful failure to support and willful failure to visit grounds referenced at the

beginning of the statute, the wanton disregard ground is not limited to the four months

immediately preceding the parent’s incarceration. In re Audrey S., 182 S.W.3d at 871.

The wanton disregard provision requires, however, that the conduct occur “prior to

incarceration.” Tenn. Code Ann. § 36-1-102(1)(A)(iv); In re Jeremiah N., No. E2016-

00371-COA-R3-PT, 2017 WL 1655612, at *7 (Tenn. Ct. App. May 2, 2017).

Although the wanton disregard provision does not make incarceration alone a

ground for terminating parental rights, it reflects that “parental incarceration is a strong

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indicator that there may be problems in the home that threaten the welfare of the child.”

In re Audrey S., 182 S.W.3d at 866. Therefore, parental incarceration serves:

as a triggering mechanism that allows the court to take a closer look at the

child’s situation to determine whether the parental behavior that resulted in

incarceration is part of a broader pattern of conduct that renders the parent

unfit or poses a risk of substantial harm to the welfare of the child.

Id. Tennessee Code Annotated section 36-1-102(1)(A)(iv) does not define “wanton

disregard.” This court has repeatedly held, however, that the following types of conduct,

alone or in combination, can constitute conduct demonstrating a wanton disregard for a

child’s welfare: “probation violations, repeated incarceration, criminal behavior,

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

In re Audrey S., 182 S.W.3d at 867-68. The types of “actions that our courts have

commonly found to constitute wanton disregard reflect a ‘me first’ attitude involving the

intentional performance of illegal or unreasonable acts and indifference to the

consequences of the actions for the child.” In re Anthony R., No. M2014-01753-COA-

R3-PT, 2015 WL 3611244, at *3 (Tenn. Ct. App. June 9, 2015).

In the context of this provision, “child” includes the period of pregnancy. Id.; see

also In re Jamazin H.M., No. W2013-01986-COA-R3-PT, 2014 WL 2442548, at *9

(Tenn. Ct. App. May 28, 2014). This court has previously stated that “a person cannot

disregard or display indifference about someone whom he does not know exists.” In re

Anthony R., 2015 WL 3611244, at *3. Thus, the wanton disregard provisions “must be

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

constituting wanton disregard are taken.” Id.; see also In re Jeremiah N., 2017 WL

1655612, at *7.

On appeal, the Department elected not to defend the wanton disregard ground as it

applies to Laishonnii “because the record does not clearly and convincingly reflect

whether Father was aware that Mother was pregnant with Laishonnii when the alleged

wanton disregard conduct occurred.” As a result of the Department’s position, we will

not review the trial court’s findings with respect to this ground as it applies to Laishonnii,

and we vacate the trial court’s termination of Father’s parental rights to Laishonnii based

on abandonment by wanton disregard.

The Department asserts that the trial court properly found abandonment by wanton

disregard as it applies to LaiLonnii, however. As discussed above, the trial court found

that the robbery Father committed and his repeated incarceration constituted conduct

demonstrating a wanton disregard for the welfare of LaiLonnii. A thorough review of the

record shows that the robbery Father was convicted of and received a ten-year sentence

for occurred in October 2015. At the time Father committed the robbery, LaiLonnii was

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three months old. Unfortunately, the record contains no evidence that Father had any

knowledge of LaiLonnii when he committed the robbery.

With respect to Father’s repeated incarceration, the record shows that he was

incarcerated from January 28 through February 3, 2016, for the robbery that occurred in

October 2015. After being released on bond on February 3, 2016, Father remained in the

community for a short period of time, but he was arrested again on September 9, 2016.

Father testified that he was arrested on this date because he appeared for a hearing

concerning the robbery charge and, during this hearing, it was discovered that his bond

had been set too low for the charge against him. Generally, when courts find that a

parent’s repeated incarceration demonstrates a wanton disregard for the welfare of a

child, the repeated incarceration is due to violating probation or committing multiple

crimes. See In re Chase L., No. M2017-02362-COA-R3-PT, 2018 WL 3203109, at *13

(Tenn. Ct. App. June 29, 2018) (affirmed termination based on wanton disregard because

mother was incarcerated on multiple occasions for different crimes and probation

violation); In re Donte N., No. E2013-01617-COA-R3-PT, 2014 WL 201612, at *1-2, *7

(Tenn. Ct. App. Jan. 17, 2014) (affirmed termination based on wanton disregard where

father was repeatedly incarcerated for committing multiple crimes during a period of six

years); In re Adoption of Logan A.S., No. W2009-02661-COA-R3-PT, 2010 WL

3984712, at *8 (Tenn. Ct. App. Oct. 12, 2010) (affirmed termination based on wanton

disregard due to father’s multiple incarcerations due to drug-related thefts). Father’s

repeated incarceration was not for committing additional crimes while out on bond or for

violating probation. Rather, he was returned to jail on September 9, 2016, because his

bond had been set too low for the robbery charge he was previously incarcerated for in

early 2016, and because he could not pay the increased bond amount. In other words,

Father’s reincareration was for the robbery committed in October 2015. The record

contains no evidence of conduct by Father demonstrating a wanton disregard for the

welfare of the children other than the robbery committed in October 2015. As discussed

above, we have determined that the Department failed to prove that Father had any

knowledge of LaiLonnii at the time he committed the robbery.

In light of the foregoing, we conclude that the Department failed to prove by clear

and convincing evidence the ground of abandonment by wanton disregard for the welfare

of either of the children. We vacate the trial court’s termination of Father’s parental

rights to LaiLonnii based on this ground.

C. Failure to Manifest an Ability and Willingness to Personally Assume Custody

The trial court also relied on Tenn. Code Ann. § 36-1-113(g)(14) as a ground for

terminating Father’s parental rights. Pursuant to this ground, a court may terminate

parental rights in situations where:

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A legal parent or guardian has failed to manifest, by act or omission, an

ability and willingness to personally assume legal and physical custody or

financial responsibility of the child, and placing the child in the person’s

legal and physical custody would pose a risk of substantial harm to the

physical or psychological welfare of the child.

Tenn. Code Ann. § 36-1-113(g)(14)3. Essentially, this ground requires a party seeking

termination to prove two elements by clear and convincing evidence. Tenn. Code Ann. §

36-1-113(c)(1), (g)(14). First, a party must prove that the parent failed to manifest both

“an ability and willingness to personally assume legal and physical custody or financial

responsibility of the child[ren].” Tenn. Code Ann. § 36-1-113(g)(14). If a party proves

only the “ability” criterion or the “willingness” criterion, the requirements of the statute

are not met, and this ground may not serve as a basis for terminating parental rights. In

re Ayden S., No. M2017-01185-COA-R3-PT, 2018 WL 2447044, at *7 (Tenn. Ct. App.

May 31, 2018). The second element a party seeking termination based on this ground

must prove is that placing the children in the parent’s “legal and physical custody would

pose a risk of substantial harm to the physical or psychological welfare of the child[ren].”

Tenn. Code Ann. § 36-1-113(g)(14).

Here, the trial court concluded that DCS proved the first element by clear and

convincing evidence based on its finding that Father “is in prison; he is completely

unable to assume responsibility for these children.” A thorough review of the record

shows that Father was incarcerated from January 28, 2016 through February 3, 2016, and

he has been continuously incarcerated since September 9, 2016. He is currently serving a

ten-year sentence for a robbery conviction. Father anticipates that he will get out on

parole in either 2019 or 2020, but he may be required to serve the entire ten-year

sentence. We conclude that a preponderance of the evidence supports the trial court’s

finding that Father does not currently have the ability to assume physical and legal

custody or financial responsibility of the children.

The trial court made no specific findings of fact regarding whether Father failed to

manifest a willingness to assume physical and legal custody or financial responsibility of

the children. An examination of the record, however, shows that DCS presented

evidence pertaining to this criterion. Father testified that he loved the children and he

“want[ed] to get out and do right.” DCS correctly points out that, during his

incarceration, Father has not sent any letters, cards, or pictures to the children, which

would indicate “willingness.” Ms. Wittenbarger admitted, however, that she did not

provide Father any information regarding how to contact the Department so he could

send the children letters, cards, or pictures. Rather, she merely believed that the previous

caseworker contacted Father in prison and provided him with the necessary information.

3

This is the version of the statute in effect when the petition was filed. Tennessee Code Annotated

section 36-1-113(g)(14) was amended effective July 1, 2018.

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This evidence does not establish by clear and convincing evidence that Father failed to

manifest a willingness to assume physical and legal custody or financial responsibility of

the children. In light of the foregoing, we conclude that the Department failed to prove

the first element of the statutory ground by clear and convincing evidence, and we vacate

the trial court’s termination of Father’s parental rights based on this ground.

II. Best Interest

Having determined that clear and convincing evidence of at least one statutory

ground exists to terminate Father’s parental rights, we must next consider whether the

trial court properly determined that termination of Father’s parental rights is in the best

interest of the children. See Tenn. Code Ann. § 36-1-113(c)(2); In re Audrey S., 182

S.W.3d at 860. After a court finds that clear and convincing evidence exists to support a

ground for termination, the child’s interests diverge from those of the parent and the court

focuses on the child’s best interests. In re Audrey S., 182 S.W.3d at 877. A court must

view the child’s best interest from the perspective of the child, not that of the parent. Id.

at 878. A finding that at least one ground for termination of parental rights exists does

not necessarily require that a parent’s rights be terminated. Id. at 877. Because some

parental misconduct is redeemable, our termination of parental rights statutes recognize

that “terminating an unfit parent’s parental rights is not always in the child’s best

interest.” Id. The facts a court considers in its best interest analysis must be proven by “a

preponderance of the evidence, not by clear and convincing evidence.” In re Kaliyah S.,

455 S.W.3d 533, 555 (Tenn. 2015). Once a court makes the underlying factual findings,

it should “consider the combined weight of those facts to determine whether they amount

to clear and convincing evidence that termination is in the child’s best interest.” Id.

When considering whether terminating a parent’s rights to a child is in the child’s

best interest, a trial court is to consider the following non-exclusive factors:

(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;

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(5) The effect a change of caretakers and physical environment is likely to

have on the child’s emotional, psychological and medical condition;

(6) Whether the parent or guardian, or other person residing with the parent

or guardian, has shown brutality, physical, sexual, emotional or

psychological abuse, or neglect toward the child, or another child or adult

in the family or household;

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

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

there is such use of alcohol, controlled substances or controlled substance

analogues as may render the parent or guardian consistently unable to care

for the child in a safe and stable manner;

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

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

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

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

the child support guidelines promulgated by the department pursuant to

§ 36-5-101.

Tenn. Code Ann. § 36-1-113(i). A trial court is not required to find that each of the

enumerated factors exists before concluding that it is in the best interest of the child to

terminate a parent’s rights. In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005).

Although in some circumstances “the consideration of one factor may very well dictate

the outcome of the analysis,” In re Audrey S., 182 S.W.3d at 878, a court is still obligated

to consider “all the factors and all the proof.” In re Gabriella D., 531 S.W.3d 662, 682

(Tenn. 2017).

Father argues that the trial court failed to make specific findings of fact regarding

the best interest factors, citing to the trial court’s oral ruling. A careful review of the

record, however, shows that the trial court made specific findings of fact regarding the

best interest factors in its written order. For the reasons discussed above, this argument is

without merit.

Here, the trial court found that the best interest factors weighed in favor of

terminating Father’s parental rights. Specifically, the court found that Father “ha[d] not

made such an adjustment of circumstance, conduct, or conditions as to make it safe and

in the children’s best interest to be in his home.” See Tenn. Code Ann. § 36-1-113(i)(1).

The evidence does not indicate that Father has any home outside of prison. He has been

incarcerated for most of LaiLonnii’s life and the entirety of Laishonnii’s life. He is

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serving a ten-year sentence for a robbery conviction, and there is a possibility that he will

be required to serve the entire ten-year sentence. Father testified that he has made efforts

to improve himself, such as taking a parenting class, participating in Alcoholics

Anonymous, and taking several substance abuse classes. We commend Father’s efforts,

but they do not negate the fact that he is unavailable to care for the children because he is

incarcerated under a ten-year sentence, and there is a possibility he will have to serve the

entire length of his sentence.

The trial court also found that, “[d]ue to his conduct, [Father] has not been able to

maintain regular visitation or other contact with the children and no meaningful

relationship has otherwise been established between [Father] and the children.” See

Tenn. Code Ann. § 36-1-113(i)(3), (4). Although it appears that Father genuinely loves

and cares for the children, he has not established a meaningful relationship with them

because he has been incarcerated for most of LaiLonnii’s life and the entirety of

Laishonnii’s life.

In addition, the trial court found that Father was “without a healthy and safe

physical environment to offer the children” and, “[p]rior to his incarceration, he engaged

in criminal activity.” See Tenn. Code Ann. § 36-1-113(i)(7). Father has a lengthy history

of criminal activity and drug and alcohol use. His prior convictions include driving on a

revoked or suspended license, evading arrest, simple possession, underage consumption

of alcohol, unlawful possession of a weapon, and possession with intent to go armed

while under the influence. Moreover, he is currently serving a ten-year sentence for a

robbery conviction. In regard to drug use, Father admitted at trial that he used marijuana.

Finally, the trial court found that “[a] change of caretakers and physical

environment from their stable, kinship foster home is likely to have a detrimental effect

on the children’s emotional and psychological condition.” See Tenn. Code Ann. § 36-1-

113(i)(5). LaiLonnii has lived with his maternal uncle and aunt since he was one year old

and Laishonnii has lived with them his entire life. The children’s half-sibling also lives

with them. The Fosters love the children and provide a safe and stable environment for

them. The children are happy and doing well. If they become available for adoption, the

Fosters want to adopt them.

In light of the foregoing, we conclude that there is clear and convincing evidence

to establish that termination of Father’s parental rights is in the best interest of the

children.

III. Ineffective Assistance of Counsel

Father next argues that he was denied effective assistance of counsel during the

termination proceedings because his trial counsel only met with him twice. In In re

Carrington H., the Tennessee Supreme Court held that, although several procedural

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safeguards exist to protect a parent’s rights during termination proceedings, there is no

right to effective assistance of counsel in parental termination cases. In re Carrington H.,

483 S.W.3d at 535. The Court explained:

By refusing to import criminal law post-conviction type remedies,

we do not at all disregard the well-established constitutional principle

precluding the termination of parental rights except upon fundamentally

fair procedures. But this constitutional mandate can be achieved without

compromising the interests of children in permanency and safety. “By its

very nature, ‘due process negates any concept of inflexible procedures

universally applicable to every imaginable situation.’” Heyne v. Metro.

Nashville Bd. of Pub. Educ., 380 S.W.3d 715, 732 (Tenn.

2012) (quoting Cafeteria & Rest. Workers Union, Local 473 AFL-CIO v.

McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961)).

Tennessee court rules, statutes, and decisional law are already replete with

procedures, some previously described herein, designed to ensure that

parents receive fundamentally fair parental termination proceedings.

....

. . . Given these existing procedural safeguards, we decline to hold

that securing the constitutional right of parents to fundamentally fair

procedures requires adoption of an additional procedure, subsequent to or

separate from an appeal as of right, by which parents may attack the

judgment terminating parental rights based upon ineffective assistance of

appointed counsel.

Id. at 533, 535.

Father acknowledges the Supreme Court’s holding in In re Carrington H., but he

argues that we should consider Father’s argument anyway because the Supreme Court’s

decision was “a 3-2 divided opinion.” The United States Supreme Court denied a

petition for writ of certiorari in Vanessa G. v. Tennessee Department of Children’s

Services, 137 S.Ct. 44 (2016), an attempt to appeal In re Carrington H. Therefore, the

holding In re Carrington H. is final and binding on this court. There is no mechanism for

Father to seek relief from the termination of his parental rights based on ineffective

assistance of counsel.

Father was entitled to fundamentally fair procedures, however. In re Carrington

H., 483 S.W.3d at 533-35. He contends that he did not receive fundamentally fair

procedures because he was provided inadequate time to develop a proper defense due to

his attorney only meeting with him twice. To support his argument, Father relies on the

case In re Cameron S.H., No. E2012-00220-COA-R3-PT, 2012 WL 4045303 (Tenn. Ct.

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App. Sept. 14, 2012). In In re Cameron S.H., the trial court terminated the father’s

parental rights after neither the father nor his appointed counsel appeared at the

termination of parental rights trial. In re Cameron S.H., 2012 WL 4045303, at *1. The

record showed that counsel did not receive notice of the termination hearing until after

entry of the judgment terminating the father’s parental rights. Id. at *3. On appeal, this

court held that the father was entitled to a new trial because the failure to notify the

father’s counsel “of the termination proceeding affected the substantial constitutional and

statutory rights of the father.” Id.

Father’s reliance on In re Cameron S.H. is misplaced. Both Father and his

appointed counsel appeared at the termination hearing. Although Father asserts that he

only met with counsel twice, such an allegation does not evoke constitutional concerns

similar to a situation where trial counsel is completely absent from a termination

proceeding because he or she was not notified of the proceeding. Moreover, the record

on appeal does not reflect how Father was prejudiced by this alleged deficiency. See

Tanner v. Whiteco, L.P., 337 S.W.3d 792, 796 (Tenn. Ct. App. 2010) (stating that

appellate review is limited to the record on appeal). We conclude that Father has failed

to prove that he was deprived of any of his rights related to his representation or to

fundamental fairness in the termination proceedings.

IV. CONCLUSION

We affirm the trial court’s decision terminating Father’s parental rights based on

the ground of incarceration under a sentence of ten or more years, and the children were

under the age of eight at the time the sentence was entered. We vacate the trial court’s

decision terminating Father’s parental rights based on the grounds of wanton disregard

for the welfare of the children and failure to manifest an ability and willingness to

personally assume legal and physical custody or financial responsibility of the children,

and placing the children in Father’s care would pose a risk of substantial harm to the

physical and psychological welfare of the children. We affirm the trial court’s conclusion

that it is in the best interest of the children to terminate Father’s parental rights, and thus,

affirm the trial court’s ultimate decision to terminate Father’s parental rights to the

children. This matter is remanded with costs of appeal assessed against the appellant,

Lonnie A. J., for which execution may issue if necessary.

________________________________

ANDY D. BENNETT, JUDGE

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