# In Re Lailonnii J.

> Court of Criminal Appeals of Tennessee · February 19, 2019

URL: https://www.frixlaw.com/law-library/cases/4369053

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** February 19, 2019
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Andy D. Bennett
- **Cited by:** 0 later opinions in the Frix Law Library

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## How later opinions describe it (automated extraction)

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## Opinion text

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.
-2-
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.
-3-
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

-8-
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4369053. Public record. Not legal advice.