IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

July 8, 2004 Session

IN RE: DNG, SDP, et ux, JASP, v. RLG and KSR

Direct Appeal from the Juvenile Court for Davidson County

No. 2219-70452 Hon. Betty Adams Green, Judge

No. M2003-02810-COA-R3-PT – Filed October 13, 2004

The Trial Court terminated the mother’s parental rights to the four year old child. On appeal, we

Affirm.

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

HERSCHEL PICKENS FRANKS, P.J., delivered the opinion ofthe court, in whichCHARLES D.SUSANO,

JR., J., and D. MICHAEL SWINEY, J., joined.

Kelli Barr Summers, Brentwood, Tennessee, for Appellant.

Paul A. Rutherford, Nashville, Tennessee, for Appellees.

OPINION

This is a parental termination case. The birth mother, KSR (“mother”), is a drug

addict who has been a user since the age of 14 or 15. She is presently serving an 8 year sentence for

dealing in cocaine. The minor child DNG (“child”) is now four years old. Petitioners have been the

foster parents and reared the child from birth with the exception of an 8 month period when the

mother was on parole. 

The mother was first incarcerated for dealing in cocaine in March of 1998. She was

paroled in September 1999, then reincarcerated on June 1, 2000 for using. Two months later, the

child was born on August 7, 2000. The child left the hospital when two days old with the petitioners,
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who have been the foster parents ever since. 

The standard of review in termination of parental rights cases is de novo upon the

record, with a presumption of correctness of the findings of fact by the Trial Court. Tenn. Dept. Of

Human Services v. Riley, 689 S.W.2d 164 (Tenn. Ct. App. 1984). The issue to determine is whether

the evidence made out a case of clear and convincing evidence in favor of terminating parental

rights. See, In re Drinnon, 776 S.W.2d 96, 100 (Tenn. Ct. App. 1988). The clear and convincing

evidence standard is something more than a preponderance of the evidence, but less than beyond a

reasonable doubt standard. O’Daniel v. Messier, 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995). This

heightened standard of proof is designed to prevent the unwarranted termination or interference with

the biological parents’ right to their children. In re M.W.A., 908 S.W.2d 620, 622 (Tenn. Ct. App.

1998).

Parents have a fundamental right to the care, custody and control of their children.

Stanley v. Illinois, 405 U.S. 645 (1972). This right is not absolute, and parental rights may be

terminated if the court finds by clear and convincing evidence that (1) grounds exist for termination

as determined under the statute, and (2) it is in the best interests of the child to terminate the parentchild relationship. Santosky v. Kramer, 455 U.S. 745 (1982); O’Daniel v. Messier. 

After trial, the Trial Court ruled that the birth mother had wilfully given up a second

opportunity to rear her child by violating her parole, thereby exhibiting wanton disregard for the

child’s welfare, as defined in Tenn. Code Ann. § 36-1-102(1)(A)(iv). The Court further found the

child’s grandmother could have assumed care for the child, but had shown little involvement until

the Petition was filed. The Court concluded the child had thrived in the continuity and stability of

the petitioners’ care, and that removing the child from petitioners’ home would be detrimental to the

child’s best interest.

The grounds for termination of parental rights are set forth in Tenn. Code Ann. §36-1-

113(g). The following are pertinent to this case:

(g) initiation of termination of parental or guardianship rights may be based upon

any of the following grounds:

(1) Abandonment by the parent or guardian, as defined in § 36-1-102, has

occurred;

. . .

(3)(A) 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
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abuse or neglect and which, therefore, prevent the child’s safe 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 safely 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 safe, stable and

permanent home.

A termination of rights based upon proof byclear and convincing evidence of any one

of the statutory factors will be affirmed on appeal. In re C.W.W., 37 S.W.3d 456, 473 (Tenn. Ct.

App. 2000).

The Trial Court found that the mother’s conduct constituted a wanton disregard for

the child’s welfare, which is deemed abandonment for purposes of the foster care statute, and the

termination of parental rights. See, Tenn. Code Ann. § 36-1-102(1)(A)(iv).

Our courts have consistently held that an incarcerated parent who has multiple drug

offenses and wastes the opportunity to rehabilitate themselves by continuing to abuse drugs, resulting

in revocation of their parole and reincarceration, constitutes abandonment of the child, and

demonstrates a wanton disregard for the welfare of the child. In re C.W.W. , 37 S.W.3d 467, 473

(Tenn. Ct. App. 2000); State v. J.S., et al., 2001 Tenn. App. Lexis 796 (Tenn. Ct. App. 2001);

G.M.C. et al v. A.V.I., 2000 WL 1195686 (Tenn. Ct. App. 2000); State v. D.G.S.L., 2001 Tenn. App.

Lexis 941 (Tenn. Ct. App. 2001); State v. Grant, 2002 Tenn. App. Lexis 158 (Tenn. Ct. App. 2002);

Dept. Of Children’s Serv. V. Wiley, 1999 WL 1068726 at *7 (Tenn. Ct. App. 1999). Cf. In re C.T.S.,

2004 WL 1838441 (Tenn. Ct. App., Aug. 16, 2004); (the Court found the fact that the mother

ingested crack cocaine during pregnancy was conduct that itself established a wanton disregard for

the welfare of the child.)

In this case the mother had the benefit of numerous treatment programs and

interventions, a home to live in, the support of her mother and brother, employment, parole, a new

boyfriend, and some limited contact with her older daughter. Despite all of these opportunities, she

returned to her old lifestyle. She freely admitted in open court that it would be a lie to say she would

never use again, and she could give no promises. She conceded that if she does relapse, it is not in

the child’s best interest to be with her. Her defense was that she was now dealing with things

“differently”. In parental rights matters, the court does not look to the protestations of affections and

expressed intentions of the parent, but rather the parent’s course of conduct. Koivu v. Irwin, 721

S.W.2d 803 (Tenn. Ct. App. 1986); Fancher v. Mann, 432 S.W.2d 63, 65 (Tenn. Ct. App. 1968).

The mother’s behavior has severely diminished, if not nullified, her ability to

discharge her proper role as a parent. The record establishes that she used crack cocaine during her
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pregnancy, and by her own admission there is no guarantee that further rehabilitation will be any

more successful than her past treatment programs. Considering the environment of addiction,

relapse, and overall irresponsibility and disregard for the child’s welfare, the Trial Court properly

found by clear and convincing evidence that the mother’s parental rights should be terminated

pursuant to Tenn. Code Ann. § 36-1-113(g)(3)(A). 

The final issue is whether termination is in the best interest of the child. A nonexhaustive list of the factors to be weighed in this determination are set forth in Tenn. Code Ann.

§ 36-1-113(I). A minimum of seven of these factors are directly implicated in this case. Finding that

termination of parental rights is in the best interest of the child has been justified with as few as four

of the criteria set forth. See G.M.C. et al v. A.V.I., 2000 WL 1195686 (Tenn. Ct. App. 2002).

Expecting a young child to wait years on incarcerated parents to remedy their

problems is neither reasonable nor in the best interests of the child. In re Shipley, 1997 WL 596281

(Tenn. Ct. App. 1997); State v. T.K., 2002 WL 1115730 (Tenn. Ct. App. 2002). Counsel argues that

the mother’s efforts to get into treatment and the realization of her need describes a loving and caring

mother. However, the evidence is the child has never established a meaningful relationship with the

birth mother or the grandmother. Petitioners have been the child’s parents in reality from birth, and

the child has known no other family. Moreover, stability is important to a child’s well-being.

Contreras v. Ward, 831 S.W.2d 288, 290 (Tenn. Ct. App. 1981). When placing children, there is

a preference to return them to their parents or place them with relatives over permanent placement

through adoption. Tenn. Code. Ann. § 37-2-403 (1993); State Dept. Of Human Serv. V. Smith, 785

S.W.2d 336, 338 (Tenn. 1990). Nevertheless, the best interest of the child remains the paramount

and utmost consideration; it is the polestar, the alpha and omega in the court’s determination. Arnold

v. Arnold, 774 S.W.2d 613, 621 (Tenn. Ct. App. 1989). The grandmother has shown only the barest

interest in the child and offered no concrete plan for rearing the child. The evidence in the record

indicates that the grandmother’s involvement with the grandchild has been minimal at best.

Moreover, the grandmother did not demonstrate that it would be in the child’s best interest to place

the child with the grandmother. The proof establishes that the child has flourished as a part of the

petitioners’ family, and thrives under their care. The evidence is clear and convincing that it is in the

best interest of the child that parental rights be terminated.

The cost of the appeal is assessed to the defendant, KSR.

_________________________

HERSCHEL PICKENS FRANKS, P.J.
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