FILED

August 2, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS AT NASHVILLE

STATE OF TENNESSEE, ) C/A No. 01A01-9810-JV-00564

DEPARTMENT OF CHILDREN’S ) DAVIDSON COUNTY

SERVICES ) Circuit Nos: 

) 9719-39064

Petitioner-Appellee ) 9719-39065

) 9719-39182

v. ) 

)

JAMES BOSTICK OSBORNE )

 ) 

Respondent-Appellant )

)

IN THE MATTER OF: )

SHERRY MONET HENDREN )

APPEALED FROM THE JUVENILE COURT OF DAVIDSON COUNTY 

THE HONORABLE BETTY ADAMS-GREEN, JUDGE

Thomas H. Miller

P. O. Box 681662

Franklin, TN 37068-1662

Attorney for Respondent-Appellant

Paul G. Summers

ATTORNEY GENERAL AND REPORTER

Douglas Earl Dimond

ASSISTANT ATTORNEY GENERAL

General Civil Division

Cordell Hull Building, 2nd Floor

425 Fifth Avenue North

Nashville, TN 37243-0499

Attorneys for Petitioner-Appellee

 AFFIRMED AND REMANDED

 Houston M. Goddard, Presiding Judge

CONCUR:

FRANKS, J.

SUSANO, J.
2

O P I N I O N

 Goddard, P.J.

This case involves a petition for termination of

parental rights. The Respondent/Appellant, James Bostick

Osborne, appeals from an order of the Juvenile Court of Davidson

County terminating his parental rights as the biological father

of Sherry Monet Hendren. We affirm the judgment of the Trial

Court.

On December 22, 1997, the State of Tennessee,

Department of Children’s Services, the Petitioner/Appellee,

obtained custody of Barbara and Willie Hendren’s three children:

Sherry Monet Hendren, Ricky Donneil Hendren, and Shanta Monique

Hendren. Although Mr. Hendren is listed as the father on each

child’s birth certificate, DCS discovered during its

investigation that Mr. Osborne might be the biological father of

Sherry Hendren and that Michael Patterson might be the biological

father of Ricky and Shanta Hendren. After this discovery, DCS

sought to notify Mr. Osborne and Mr. Patterson of its petition to

terminate the parental rights to the three children. This appeal

concerns only the termination of Mr. Osborne’s parental rights to

Sherry Monet Hendren, who was almost twelve years old at the time

of the trial.
3

Mr. Osborne presents three issues, which we restate,

for our consideration:

1. Whether the court erred in

finding that he willfully abandoned

his daughter; 

2. Whether the court erred in

terminating his parental rights

based upon persistence of

conditions dangerous to his

daughter; and

3. Whether the court erred in

finding that termination of his

parental rights was in the best

interest of his daughter.

 After Ms. Katie Finney, a DCS case manager, determined

that Mr. Osborne was incarcerated, she sent him a letter in May

1998 inquiring whether he is Sherry’s father. In June 1998, Mr.

Osborne, who was serving a sentence for burglary, responded that

he is indeed her father. On June 30, 1998, DCS filed a petition

to terminate Mr. Osborne’s parental rights. 

The DCS petition stated that under Tennessee Code

Annotated §§ 36-1-102(1)(A)(i) and 36-1-102(1)(A)(iv), Mr.

Osborne had willfully abandoned his daughter and that termination

of Mr. Osborne’s parental rights was in his daughter’s best

interest.
4

On October 9, 1998, DCS filed an amended petition which

stated that Mr. Osborne was incarcerated at the time the petition

was filed and stated that Mr. Osborne had failed to visit or

support his daughter in the four months preceding his

incarceration or engaged in conduct prior to his incarceration

that showed wanton disregard for his daughter’s welfare. 

In early October 1998, Ms. Finney visited Mr. Osborne

to discuss his daughter and her siblings. According to Ms.

Finney’s testimony, Mr. Osborne was not opposed to the

termination of his parental rights if his daughter could remain

with her siblings. Although Mr. Osborne stated that he would

like to see his daughter, Ms. Finney stated that he never

requested a visit.

At the trial on October 12, 1998, Mr. Osborne testified

that he was participating in a behavior modification program

called “Lifelines” while in jail and that the program had made a

profound impact on his life. He testified that he was scheduled

to be released from jail on November 2, 1998 and then go to a

halfway house for three months. He further stated that he hoped

to rear his daughter and her two siblings, although he was not

their father, but he did not know when he could provide a home

for them. He was uncertain as to what his relationship with his
5

wife and young son would be since he had had no contact with them

in seven months.

Mr. Osborne admitted that there was a period of

approximately four years of Sherry’s life that he lost total

contact with her. Mr. Osborne never legitimated Sherry as his

child, although she is aware that he is her father, and he never

paid child support for his daughter.

Ms. Finney of DCS testified that Mr. Osborne could not

be considered as a placement for children until he had been sober

at least one year. Ms. Finney further testified that termination

of Mr. Osborne’s parental rights was in Sherry’s best interest

and that Sherry, who was almost twelve years old at the time,

needed a permanent, stable home to prepare her for her teenage

years.

Mr. Steve Walker, Sherry’s guardian ad litem, stated to

the Trial Court that Sherry was willing to live with her father

if her two siblings could live with them. If that was not

possible, then Sherry preferred to be placed in a home along with

her brother and sister.
6

On October 13, 1998, the Trial Court filed a decree of

guardianship and thus, terminated Mr. Osborne’s parental rights. 

The Trial Court concluded that Mr. Osborne had willfully

abandoned his daughter for more than four consecutive months

preceding the filing of this petition to terminate his parental

rights by not visiting during that period of time. Furthermore,

the Trial Court found that Mr. Osborne was

incarcerated during all or part of the four months

immediately preceding the filing of the petition and

willfully failed to visit or support or make reasonable

payments toward the support of the child for four

consecutive months immediately preceding such

incarceration OR has engaged in conduct prior to

incarceration which exhibits a wanton disregard for the

welfare of the child. 

That pursuant to T.C.A. 36-1-113(g)(3)(A), the

said children have been removed from Defendant parents

for more than six (6) months and the conditions which

led to removal or other conditions which in all

reasonable probability would cause the children to be

subjected to further abuse or neglect and which,

therefore, prevent the children’s return to the care of

the Defendants still persists; that there is little

likelihood that these conditions will be remedied at an

early date so that the children can be returned to the

Defendants in the near future; and the continuation of

the legal parent and child relationship greatly

diminishes the children’s chances of early integration

into a stable and permanent home. 

First, Mr. Osborne argues that he did not willfully

abandon his daughter. He explains that he was incarcerated in

December 1997 on a burglary conviction when his daughter was

placed in DCS custody. Mr. Osborne contends that although DCS

did not know that he was Sherry's father until March 1998, it did

not contact him until May 1998 and did not speak with him until
7

October 1998. Mr. Osborne maintains that before meeting with Ms.

Finney from DCS the week before the trial in October 1998, "he

had no meaningful way to inform DCS that he desired visitation

with [Sherry]." He asserts that before he was incarcerated he

saw Sherry "frequently" and had a "good relationship" with her.

Furthermore, Mr. Osborne argues that he had no income

during his incarceration, and thus, was unable to pay child

support. Consequently, his failure to pay child support was not

willful. Moreover, Mr. Osborne contends that the State did not

show by clear and convincing evidence that his conduct before his

incarceration exhibited a "wanton disregard" for his daughter's

welfare. Although Mr. Osborne admits to a long history of drug

abuse, he maintains that such abuse or a criminal conviction does

not constitute "wanton disregard" for a child's welfare. 

Next, Mr. Osborne argues that the court erred by

finding that dangerous conditions to his daughter would likely

persist. Mr. Osborne maintains that he has undergone a "lifechanging" behavior modification program while incarcerated and no

longer uses drugs. He further contends that there are no

allegations of abuse or neglect against him because at the time

his daughter was removed from her home, she was living with her

mother.
1

Although the State refers to Tennessee Code Annnotated § 36-1-101(1)(A)

in its brief, the section that refers to a willful failure to visit is § 36-1-

102(1)(A).

8

Mr. Osborne further argues that termination of his

parental rights is not in the best interest of his daughter. He

asserts that DCS failed to make reasonable efforts to “reunite”

him with his daughter, with whom he had a good relationship.

The State argues that the Trial Court properly

terminated Mr. Osborne's parental rights for abandonment. The

State maintains that Mr. Osborne was incarcerated in the four

months preceding the filing of the petition on June 30, 1998 to

terminate his parental rights. While the State concedes that Mr.

Osborne's options for visitation were limited, it maintains that

he did not contact his daughter or request a visit with her until

the week before the trial, which was several months after he

learned of the State's efforts to locate him. The State

maintains that these facts constitute a willful failure to visit

under Tennessee Code Annotated § 36-1-101(1)(A)1.

The State further argues that Mr. Osborne abandoned his

daughter pursuant to Tennessee Code Annotated § 36-1-

102(1)(A)(iv) in the four months before his incarceration. It

maintains that Mr. Osborne paid no child support, instead

spending all his paycheck on crack cocaine, and had no more than

"token visitation" with his daughter. It argues that after five
9

years of no contact, Mr. Osborne saw his daughter on some

Saturdays during the eight months before his incarceration and

even then, was out of contact with her for as long as a month.

Moreover, the State asserts that Mr. Osborne's drug

abuse and criminal conduct constitute "wanton disregard" for his

daughter's welfare, citing In re Shipley, an unreported opinion

of this Court, filed in Knoxville on September 29, 1997 (finding

that the father’s criminal conduct and drug abuse showed a wanton

disregard for the welfare of his children). The State contends

that Mr. Osborne has demonstrated by past performance that he

could remain sober only while incarcerated, and when released,

retreats to a life of drug abuse. The State maintains that Mr.

Osborne, who claimed to be in recovery while incarcerated, had

one month remaining to serve in jail and an additional three

months in a halfway house before he would be free. The State

also notes that DCS would not consider placing Mr. Osborne’s

daughter with him until he had demonstrated a year of sobriety.

The State contends that the termination of Mr.

Osborne's parental rights was in the best interest of his

daughter. It explains that Mr. Osborne was unable to provide a

home for his daughter, had not maintained regular contact or

visitation with her, had paid no child support during her

lifetime, and had a chronic drug abuse problem. 
1 0

Finally, the State argues that Mr. Osborne’s argument

that DCS did not make reasonable efforts to “reunite” his

daughter with him is without merit. Although the State lists

numerous reasons why this argument is without merit, it asserts

primarily that its mandate to “reunify” families does not apply

to putative parents such as Mr. Osborne, who has not established

a familial relationship to which his daughter could have

returned.

In accordance with Rule 13(d) of the Tennessee Rules of

Appellate Procedure, this Court reviews a Trial Court's decision

to terminate parental rights de novo upon the record, with a

presumption of correctness of the findings of fact by the Trial

Court unless the preponderance of evidence is otherwise. 

However, no presumption of correctness attaches to a lower

court's decisions regarding questions of law. Ganzevoort v.

Russell, 949 S.W.2d 293, 296 (Tenn. 1997).

The decision to terminate parental rights must be

established by “clear and convincing evidence.” See State

Department of Human Services v. Defriece, 937 S.W.2d 954, 960

(Tenn. Ct. App. 1996). Tennessee Code Annotated § 36-1-113(c)

provides in relevant part:

Termination of parental or guardianship 

rights must be based upon:
2

This statute was amended with an effective date of July 1, 1998. The

State filed its petition for termination of parental rights on June 30, 1998. 

The 1998 amendment substituted “Initiation of termination” for “termination”;

in (g)(3)(A)(i), “safe” was inserted preceding “return”; in (g)(3)(A)(ii)

“safely” was inserted preceding “returned”; in (g)(3)(A)(iii) “safe” was

inserted preceding “stable.” See Amendments, Tenn. Code Ann. § 36-1-113

(Supp. 1998).

1 1

(1) A finding by the court by clear and 

convincing evidence that the grounds for 

termination or [sic] parental or guardianship 

rights have been established; and

(2) That termination of the parent’s or

guardian’s rights is in the best interests of the

child.

Tennessee Code Annotated § 36-1-113(g)(3)(A) (Supp.

1997)2 provides the possible grounds for termination of parental

rights:

Termination of parental or guardianship 

rights may be based upon any of the following 

grounds: 

* * * *

The child has been removed from the home of 

the parent or guardian by order of a court for a 

period of six (6) months and:

(i) The conditions which led to the child’s 

removal or other conditions which in all reasonable probability would cause the child to be 

subjected to further abuse or neglect and which,

therefore, prevent the child’s return to the

care of the parent(s) or guardian(s), still 

persist;

(ii) There is little likelihood that these 

conditions will be remedied at an early date so

that the child can be returned to the 

parent(s) or guardian(s) in the near future; and

(iii) The continuation of the parent or 

guardian and child relationship greatly diminishes

the child’s chances of early integration into a 

stable and permanent home.
3

This statute was amended with an effective date of July 1, 1998. The

State filed its petition for termination of parental rights on June 30, 1998. 

The 1998 amendment added a new (h) and redesignated the former (h)-(p) as

present (i)-(q); in present (i)(1) inserted “safe and” following “it”; in

present (i)(7) inserted “in a safe and stable manner” following “child” and in

present (i)(8) inserted “safe and stable” preceding “care.” See Amendments,

Tenn. Code Ann. § 36-1-113 (Supp. 1998).

1 2

Tennessee Code Annotated §§ 36-1-102(1)(A)(i) and 36-1-

102(1)(A)(iv) provide in relevant part:

“Abandonment” means, for purposes of

terminating the parental or guardian rights of

parent(s) or guardian(s) of a child to that child in

order to make that child available for adoption, that:

(i) For a period of four (4) consecutive months

immediately preceding the filing of a proceeding or

pleading to terminate the parental rights of the

parent(s) or guardian(s) of the child who is the

subject of the petition for termination of parental

rights or adoption, that the parent(s) or guardian(s)

either have willfully failed to visit or have willfully

failed to support or make reasonable payments toward

the support of the child;

* * * * 

(iv) A parent or guardian is incarcerated at the

time of the institution of an action or proceeding to

declare a child to be an abandoned child, or the parent

or guardian has been incarcerated during all or part of

the four (4) months immediately preceding the

institution of such action or proceeding, and either

has willfully failed to visit or has willfully failed

to support or make reasonable payments toward the

support of the child for four (4) consecutive months

immediately preceding such parent’s or guardian’s

incarceration, or the parent or guardian has engaged in

conduct prior to incarceration which exhibits a wanton

disregard for the welfare of the child.

Tennessee Code Annotated § 36-1-113(h) (Supp.

1997)3 provides the following regarding the best interest of

a child:

In determining whether termination of parental or

guardianship rights is in the best interest of the

child pursuant to this part, the court shall consider,

but is not limited to, the following:
1 3

(1) Whether the parent or guardian has made such

an adjustment of circumstance, conduct, or conditions

as to make it 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;

(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 other children in the family

or household;

(7) Whether the physical environment of the

parent’s or guardian’s home is healthy and safe,

whether there is criminal activity in the home, or

whether there is such use of alcohol or controlled

substances as may render the parent or guardian

consistently unable to care for the child;

(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 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.

This Court must determine whether the evidence in the

record preponderates against the Trial Court’s findings of fact

supporting termination. The State argues that the primary

evidence of Mr. Osborne’s "wanton disregard" for the welfare of

his daughter is his criminal conduct and drug abuse prior to his

incarceration. 
1 4

During his testimony, Mr. Osborne acknowledged that

twelve years ago he had been convicted of burglary and that he is

currently serving a sentence for burglary. He also admitted that

he had abused drugs since the age of twelve and began using

cocaine when he was fifteen or sixteen years old, thus admitting

to abusing drugs for approximately twenty-seven years. Mr.

Osborne testified that except for periods of incarceration, the

longest period of time that he has been free from drugs is sixty

days. He testified that he did not think that abusing drugs

indicated abuse or neglect for a child’s welfare.

Furthermore, Mr. Osborne admitted that he never

legitimated Sherry, never paid child support, and had no home to

provide for his daughter, although he had completed a parenting

class and had participated in a behavior modification course

called “Lifelines” while incarcerated.

We are of the opinion that the evidence in the record

does not preponderate against the Trial Court’s findings of fact. 

Mr. Osborne admitted to chronic drug abuse and criminal conduct

and admitted that he had no home to provide for his daughter. 

During his daughter’s life, Mr. Osborne never provided support

for her, and his relationship with her was sporadic at best. Mr.

Osborne’s daughter has experienced a disturbing childhood, so her

placement into a stable, permanent home as soon as possible is
1 5

critical as she enters adolescence. Therefore, we agree with the

Trial Court that termination of Mr. Osborne’s parental rights is

in the best interest of his daughter.

For the foregoing reasons, the judgment of the Trial

Court is affirmed. Costs on appeal are taxed to Mr. Osborne. 

This case is remanded to the Trial Court for enforcement of the

judgment and collection of costs below. 

_______________________________

Houston M. Goddard, P.J. 

CONCUR:

________________________________

Herschel P. Franks, J.

________________________________

Charles D. Susano, Jr., J.