1 V.M ., R.B ’s moth er, is not a party to the pre sent ca se and the State ’s petition to term inate ind icates tha t it will

pursu e term ination o f her pa rental righ ts by inde pen den t proc eed ings.



### IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE Novem ber 12, 200 2 Session STATE O F TENN ESSEE D EPART MENT O F CHILD REN'S SERVIC ES v. F. E. B. Appeal from the Juvenile Court for Knox County No. H9675 Carey E. Garrett, Judge FILED FEBRUARY 12, 2003 No. E2001-00942-COA-R3-JV

This ap pe al fr om th e K no x C ou nt y J uvenile Cour t question s whethe r the Juven

ile Court e

rred in terminating the parental rights o f the App ellant, F .E B., with respe ct to his child, R.B., upon petition of the Appellee, Sta

te of Ten nessee D epartme

nt of Childr

en’s Ser vices. We affirm

the judgment of the Juvenile Court and remand for collection of costs. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Juve

nile Court

Affirme d; Cause Remanded
H OUSTON M. G ODDARD , P.J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS and D. M ICHAEL S WINEY , JJ., joined. George T. Underwoo d, Jr., Kn oxvill e, Tennessee, f or the Appell ant, F.E.B. Paul G. Su mmers, Attorney Ge neral and Reporter, and Douglas Ea rl Dimond, Assistant Attorn e y Genera l, Nashville, Tennessee, for the Appellee, State of Te nnes se e Depar tment of Chi ldren 's Services OPINION R.B., the child in this case, was born on Ap ril 15, 1995 . On May 15, 1995, his mother 1 appare ntly left him a

t the Unive

rsity of Tenne ssee Hos pital and failed to return. On July 27, 1995, t he Tri al Court entered a nunc pro tunc interim order which decreed that the State be g ranted temporar y

custody of R.B. a

nd that F.E.B. submit to random drug screening and assessment

an d follow treatment recommendations.-2-

On July 11, 1995, F.E.B signed and ag reed to a plan of care which noted his past involvement wi th drugs and a lcohol and stated that he would cooperate with drug a nd alcohol assessment and continue treatment until treatment goals were met. On Aug ust 31, 1995, the Juvenile Court entered an order granting th e State temp orary custody upon finding t hat R.B. was a dependant and neglected child and that it wa s contra

ry to his welf

are to r emain in th

e custody of his par

ents.
In March o f 199 6 the Juvenile Court returned R.B. to his father's custody ; however, approxima

tely four months late

r, the Sta te regained custod y upon a finding by the Court that F.E.B. had relapsed and was entering a n inpatient treatment program. Thereaf ter, F.E.B. signed and ag

reed to a permanency

plan which, among other things, required tha t he maintain visitation with R.B. Alth ough F.E.B. continued to visit R.B. until June of 1997 and contacted him by telephone until July of 1997, he neither contacted R.B. nor contributed to his support afte r July of 1997. At a hearing on January

12, 1998, F.E.B. advised the Juvenile Court that he had discontinued visiting R.B. because he had lost his job and was out of state visiting with relatives. By consent decree entered January 26, 1998, the Court ordered resumption o f vis itation u pon initi ation by F.E.B. Testimony

in the record

shows that

after the hearing F.E.B . visited R.B. only twice - on January 23, 1998, and on February

26, 1998. On March 26, 1998, F.E.B. was arre sted and incarcerated on criminal charges that he rape d a female a cquainta nce, held her at

knife poi nt and for

ced her to take an unknown number of pills. F.E.B. was previously cha rged on May

26, 1997, with dragging this same individual up stairs by her hair, attempting to choke her, wrapping a tie around her throat and hangin g her from a closet rod. And on Septemb er 23, 19 97, F.E. B. was c harge d with wea

ving whi le driving

his car a nd with possession of a loaded gun, mar ijuana , and drug paraph ernalia. On Oct ober 29, 199 9, F.E.B. resolvedcharges from

all three incidents by

pleading guilty

to attempted second degree murder and was sente nced to te n ye ars impri sonment by

the Knox Coun

ty Cr iminal Cour

t. On March 27, 2000, the State filed a petition in the Juveni le Court to terminate F.E.B.’s parental rights to R.B. Thereafte r, F.E.B.’s sister, Sadye Murphy, transmitted a le tter to the Court styled “Petition the Court for Custody” and dated June 27, 2000, reque sting that she be granted custody of R.B. Trial on the petition to terminate was held on July 12, 2000. The Juvenile Court found that grounds existed to

terminat e F.E.B.’s parental rights upon proof tha t F.E.B. was incarcerate d under a ten yea r sentence f

or criminal activity and tha t R.B. was less than eight years old when such sentence was entered. The Court found additional grounds for terminat ion in that, prior to incarceration, F.E.B. engag ed in conduct whichexhibited a wanton disregard for R.B.’s welfa re and that F.E.B willfully f

ailed to visit R.B. or make any contribution to his support for four consecutive months immediate

ly prior to h is incarc eration . The Cour t further found tha

t termina tion would

be in R.B.’s best interest. T he Court ent ered its fin al order termi nating F. E.B.’s parental rights on Septembe r 5, 2000. On Septem

ber 8, 20 00, F.E. B. filed

notice of appeal.-3-

F.E.B. raises f

ive issue s in this app eal which are re stated a s follows:
1. Whether the Juvenile

Court erred in finding there were g rounds for terminating F.E.B.’s parenta l rights. 2. Whether the Juvenile Court erred in finding that term ination of F.E.B. ’s pare

ntal rig hts was in R.B .’s best in

terest. 3. Whether th

e Juvenile

Court err

ed in ter minating F.E.B. ’s pare

ntal rig hts w ithout f

irst conducting an evidentiary hearing on the custody

petition filed by F.E.B .’s sister. 4. Whether the State provided F.E.B. with adequate notice of the petition to terminate. 5. Whether F.E.B. was appointed counsel in a timely manner. Our standard of rev iew in a non-jur y c ase is de novo upon t he reco rd of t he pro ceedin gs below. There isno presum ption of c orrect

ness with reg ards t o a trial court's conclusions of law. Campbell v. Florida Steel

Corp. , 919 S.W.2d 26 (Tenn. 1996). There is, however, a presumption that fi nd in gs of

fa ct by a tr ia l c ou rt ar e c or re ct an d, ab se nt ev id en ce pr ep on de ra ti ng to th e c on tr ar y, we must honor that presumption. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87 (Tenn.1993). We also note that, as a general rule, this Court does not pass on the credibility of witnesses. A tria l court, having seen

and heard the witnesses testify , is in the best position to deter mine the w itnesses' credibility. Bowman v. Bowman , 836 S.W.2d 563 (Tenn. Ct. App. 1991).
We reco gniz e that “parents have a fundamental rig ht to the care, custody , and control of their children.” In re Drinnon , 776 S.W.2d 9 6 (Tenn. Ct. App. 19 88). This f undament al righ t, however, may be forf eited upo n certa

in finding s by

the cour t. In order to terminate parental rights the court must first find that a statutory ground f o r termination has bee n established by clea r and convincing evidence. T.C.A. 36-1-113( c)(1). The court mus t then find

that ther e is clea r and con vincing evidenc e that ter

mination of

parenta l rights is in the child’s best interest. T.C.A. 36-1-113(c)(2). Clear and convincing evidence ha s been definedas evidence which “eliminates any serious or substantial doubt concerning the corr ectness of the conclusions to be drawn from the evidence.” O’Daniel v. Messier , 905 S.W.2d 182 (Tenn. Ct. App. 1995).
We first address the issue of whether there was c lear and con vincing evide nce sh owing a statutory ground for term ination in t

his case . In r

egard to this issue

we note th at we must

affirm the Juvenile Court’s decision if we determine that the record contains clear and convincing evidence of any one of the statutory g

rounds for termin ation. In re C. W.W. , 37 S.W.3d 467, (Tenn. Ct. App. 2000).-4-

T.C.A. 36-1-113 (g)(1 ) provide s that a pa rent’s r ights ma y be terminat ed base d u pon that parent’s abandon

ment of hisor her child

. As f urther provi ded at T.C.A. 36-1-102(1)(A)(iv) “abandonment” m

eans: [a] parent o

r guar dian is incarcerat ed 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 f

our (4) m onths immediate

ly preceding the institution of such action or proceeding, and either has willfully failed to visit or has willfully failed to support or make r easo nable pay ments toward the support of the child for four (4 ) co nsecutive months immediate

ly preceding such

parent’s or

guardian’s incarcera

tion, or the parent or guardian has engaged in conduct prior to incarceration which exhibits a wanton disregard for the welfare of the child; (emphasis added)
As previously noted, on Marc h 26, 1998, F.E.B. was arrested and incarcera ted upon criminal charg es. Pursuant t

o his plea of g

uilty to attempted murder, F.E.B. remained inca rcerated when the petition to terminate was filed on M arch 27, 2000. F.E .B.’s te stimony at trial a lso shows tha

t, within four con secutive

months of h

is incarc eration , he eng aged in the abuse of chemi cal subst

ances: Q. Well , t hese are crimes that were all bound up in y our plea. Can you te

ll the Courthow many

differe nt things you

were c harge d with

that you resolved in your ple a t o a tte mpt ed se co nd- de gr

ee mur der? A. On what the jury c ame back with? Q. Uh-huh. A. About, I guess, eig

ht or nine things - for thre e docke

ts. Q. And tha

t was fro m three se

parate incident s?
A. Yes. Q. On e o n M ay 6 th of

1997, one on September 23 rd of 1997, and again on March 26 th of 1998. You have

told this Court that you have lea rned to be responsible for your beh a vior. Tell the Court what y our beha vior was t

hat resulted in thos e indictments and ultimately in y our plea.
A. Well, at that time, my behavior was substance abuse, more or less, during that time. This Court h as pre viously held that a paren t’s drug abuse and crimina

l activity constitute conduct which exhibits a wanton disregard for the welfare of the parent’s child. In r e C. W.W. , 37-5-

S.W.3d 467 (Tenn. Ct. App. 2000) and State v. Osborne , an unre ported op inion of th

is Courtfiled in Nashville

on August 2, 1999. Accordingly , we find that such behavior represented a ground for termination of parental rights in this case. Ad di ti on al ly, T.C.A. 36-1-113(g)(6) provides that a g round for termination of parentalrights exists if: The parent has been confined in a corre ctional 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 yea rs, and the child is under eight y ears of age at the

time the se

ntence i s entere d by

the cour t. As previous ly

no ted, on October 29, 1999, F.E.B. pled guilty to attempted second degree murder and was sentenced to ten y ears imprisonment. At that time R.B. was four years old and, t herefore, the re was also a ground for termination of F .E.B.’s parental rights under T.C.A. 36- 113(g)(6).
F.E.B. presents evidence that he was paroled f rom prison on February

4, 2002, and contends that the Juvenile

Court “did

not attemp

t to investi gate

[F.E.B. ’s] testimon

y th at he like

ly would not have to serve th e full ten year s.” F.E.B. also points out that the judgment of the Criminal Court which sets forth his ten year sentence “shows that [he] was a candidate to serve only 30 % (3 ye ars) of the 10 y ear sen tence which the c ourt neve r facto red in to its decision making.” However, as we noted in In re Copeland , 43 S.W.3d 483 (Tenn Ct. App. 2000), “[t]he statute is silent as to the possibility

of parole, and we decline to read any

intent on the part

of the legislature to account for a m ere possibility of ear ly discharg e from prison.” F.E.B.’s arg ument that the Cour t erred i n neglecting to c onsider t

he proba bility of his par

ole is, ac cording ly, without me rit.
We al so note F .E.B.’srefer ence to t he state ment of the

Tenness ee Supre

me Court i n Tennessee Baptist

Hospital v. Swanson , 2 S.W.3d 180 (Tenn. 1999) tha t “it is bey ond questi on that, before a paren

t’ s ri ghts can be terminated, there must be a showing that the parent is unfit or that substantial harm to the child will result if parental rights are not terminated.” We do not find that the Juvenile Court made a specific finding in the instant matter that F.E.B. was unfit or that substantial harm would r esult to R .B. absent termination of parental rights. However , in Osborn v. Marr , a recent opinionof this Court filed in Nashville on January 23, 2003, we dete rmined that there is neither a statutory

nor constitutional requirement of a separate finding of substantial harm where grounds for termination are established pursuant to T.C.A. 36-1- 113(g)(6).

The next issue raisedby F.E.B . is whether the Juvenile Court erred in finding that termination of F.E.B.’s paren tal rights was in the best interest of R.B. Those factor s which a

court is r equired to conside

r in dete rmining whether termi n ation of parental rights is in the child’s best interest are set forth a s follows at T.C.A.36-1-113(i):-6-

(1) Whether the parent or guardian has made suchan adjustment of circumstance, conduct, or conditions as to make it safe and in the child'sbest inter est to be in the home of the parent or guardian; (2) Whether the parent or guardia n has failed to effect

a lasting adjustment after reasona ble efforts by

available social services age ncies for such

duration of time that lasting adjustment does not reasonably appear possible; (3) Whether the parent or guardian has maintaine d regular vi sitation or other contact with the child; (4) Whether a meaningful relationship has othe rwise been established between the parent or guardian and the child; (5) The e ffect a change of careta

kers and physica

l environment is likely to have on the child's emotional, psyc hological and medical condition; (6) Whether the parent or guardian, or other person residing with theparent o r guardian, has shown brutality, phy sical, sexual, emotional or psych ologi cal abuse, or neglect toward

the child , or anoth

er child or adult in the family or household; (7) Whether

the ph ysical en viron ment o f the p arent's or guardian's home is healthy and safe, whether there is criminal activity in the home, or whether there is such use of alcohol or c ont rolled substances as may render the parent or gua rdian consistently unable to car e for the child in a safe and stable manner; (8) Wheth er the parent's or gua rdian's mental and/or emotional status would b e detrimental to the chi ld or prevent the p arent or guard ian from e ffectiv ely providing safe and stable care a nd 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.

The record presents clear a nd co nvincing

evidenc e that ter

mination of

parenta l rights i s in R.B.’s best interest with respect to several of the factor s set forth in t he statute . With respect to T.C.A. 36-1-113(i)(1), the reco rd shows th at F.E.B . enga

ged in su bstance abuse and crimina

l activity at various t imes durin g R.B.’ s life and that F.E .B. fai led to make an a djustment o f this conduct as of the time of his incarceration. With respect to T.C.A. 36-113(i)(3), the recordshows that F.E.B. failedto maintai n regu lar visita tion in that , during the eight mo nth perio d immediat ely preced ing his incarceration, F.E.B visited R.B. ononly two occa sions. With respe ct to T.C.A . 36-1-11 3(i)( 4) , it does not appear from the record that a meaningful relationship was established betwee n F.E.B. and R.B. given the fact that

their longest sustained

contact was a four month pe

riod which ended in

July 19 96 when R.B. was little more than one yea r old and given the additional fact that, as of the termination hearing, R.B. had had only two visits with his father

in the previous three y

ears, the last of which took place o ver two y ears pr ior to ter mination. F

in ally, with respect to T.C.A. 36-113- (i)(9), the rec ord shows that F.E.B. failed to pay any child support

on behalf of R.B. during the eight months preceding his incarceration.

In addition to

the above

statutory factor s, we note

the following test

imony of Mr. Willia

ms:-7-

Q. Has [R.B] had any stability in his life?

A. Only the

foster parents. He has been, more or le ss, in the same foster ho m e from beginning. I

t’s a very loving

home; and, if y ou can call that stability that would be it.

It is our conclusion that there is clear and convincing evidence in the recor d that supports the Juvenile Cou

rt’s find ing that terminat ion of F. E.B.’s p arenta

l rights i s in R.B.’ s best inte rest.

The next issue raised by F.E.B . is whether the Juvenile Court erred in failing to conduct an evidentiary

hearing on the petition for custody filed by F .E.B.’ssister before te rminating his parental rights.
By

letter dated Jun e 27, 2000, and styled “Petition the Court for Custody ” F.E.B’s sister, Sa dye Murphy, requests t hat she be grante d custody of R.B. F.E.B. argues that the Juvenile Court should have continued the terminationhearing so that it cou ld explo re the possi bility of placing R .B. withMs. Murphy. F.E.B. argue s that “it w as harmf ul error for the ju venile c ourt not to

exhaust al l effortsto place

[R.B.] with th

is blood re

lative” a nd that it is

“th e State of Tenn essee’s codified preference

to place children with blood relatives ahead of putting them up for adoption.” I n support of this arg ume nt F .E.B. cites T.C.A. 37-2-403 and State Dep artment of Human Se rvices v. Smith , 785 S.W.2d 336 (Tenn. 1980).

The record shows F.E.B requested tha tthe Juvenile

Court con

tinue this c ase to allow Ms. Murph y time to complete the necessary procedure for obtaining custody of R.B. F.E.B. premised this request

on the ra tionale th at “if

a relative is caring for the child, that that would kee p my parental rights from being terminated. I can still be a part of the child’s life as my family takes care of

him.” However, our review of

the trial record does not in dicate

any asser tion that the Juvenile Court was required to continue the case until all effor ts to place

R. B. in the custody of his a unt had been exhausted because of a “co dified pr

efere nce” in Tennesse e “to place children w ith blood relatives before putting them up for adoption.” Because this issue was not raised a t trial we decline to review it upon appeal. Sutton v. Bledsoe , 635 S.W.2d 379 (Tenn. Ct. App. 1981).

The final two issues rai sed byF.E.B question whether he rece ived adequate notice of the petition to terminate and whether he was app ointed c ounsel in a timely manner. As with the preceding issue, the r ecord does not indicate that either of these issues was raised at trial and, therefore, review of these issues is also dec lined. Sutton, ibid.-8-

For the fo regoin g r eas ons we affirm the judgment of the Juvenile Court and remand for collection of costs below. Costs of appeal are adjudged against F.E.B.

_________________________________________ HOUSTON M. GODDARD, PRESIDI NG JUDGE