The mother’ s rig hts were terminated a nd she appa

rently did not oppose the termination. 1 

### IN THE COURT OF APPEALS OF TENNESSEE AT KNOX VILLE A ssi gne d onBr ie fs , May 22, 200 7
ST A TE OF TE N N ES SE E, D EP A R TM EN T O F C HI LD R EN ’S S ER V IC ES , v. P
. W. K. , IN R E: J. B. K. D OB : 11/ 25/ 02
Direc t Appeal from the Juvenile Court for Sul livan Cou nty No. 11722 Hon. Paul R. Wohlf ord, Judge

No. E2007-00131-COA- R3-CV- F ILED JULY 25, 2007

The pa rties stipulated statutory g rounds for te rmination of par ental rig hts, and the Tria l Court found that it was in the child’s best interest that the father’s pa renta l rig hts be terminated. O n appea l, we a ff ir m.

Te nn. R . A pp. P .3 App e al a s o f Rig ht ; J udgm e ntof t he Juv e nile Co ur t A ffirm e d.

H ER SCH EL P I CKE N S F RAN KS , P.J ., delivere d the opinion of the cour t, in which C H A RLES D. S US ANO , J R ., J ., and D. M I CH A EL S WI NEY , J ., joined.
J. Wes le y Ed e ns , B ri sto l, T e nn e sse e , f or a pp e lla nt. Robert e. Cooper , J r., Attorney Gene ral a

nd Reporter , and L aure n S. L amber

th, Assistant Attorney

Gene ral, Na shville, Tennessee , for a ppellee.
Kristen Rudder Mor

rell, Gua rdian Ad L item, Bristol, Tenne ssee.

OP IN ION

The State filed a

Petition t o Terminate the Pare ntal Rights of both the fathe r and the mother to their d au gh t er , J

. B. K., on December 7, 2005 . The Petition charg ed that the c hild was

1 fo un d to be de pe nd e nt a

nd ne g le c te d on No ve mbe r 26 , 20 03 , wh e n sh e wa s 11 months old , d ue to-2-

her pa rents’ dr ug abuse, a

nd that she had be en in foster car e eve r since that determination. The Petition charg ed th at grounds for termination, included aba ndonment, wanton disreg ard f or the child’s welf

are , that the conditions leadingt o re m o v al s t ill ex isted, and that the father ha d been sentenc ed to 10 or more y ear s in prison.

The father filed a

n Answer , admitting that he ha d rec eived a sentenc e of te n or more y ear s in jail, but denied all other g rounds for te rmination, and denie d that termination was in the child’s best intere sts.

A trial was held on November 10, 2006, and the pa

rties stipulated that g rounds for termination exist ed pursua nt to the statute, since father had been sentence d to ten or more year s and the child was le ss than eig ht y ear s old. The trial pr ocee ded on the sole issue to de termine the c hild’s be st i nte re sts

. Following the evidentiar y hear ing, the Trial Court ruled that he ha d considere d the statutory fac tors of Tenn. Code Ann. §36-1-113, and that the fac tor about cha ng e of c are taker s and environment wa s an “ove rriding ” one. H e found that a chang e of c are taker s and phy sical environment would have a devastating eff ect on the child’s emotional, psy cholog ical, and me dical condition. The Court observe d the child had a sever e condit i o n , and it was be ing a dequate ly and competently

treated, and that the foster parents were providing a ppropriate car e. The Court stated that it hoped the father would de al with his drug problem and not r elapse , but on the rec ord there was no choice but to terminate his rig hts. The re cord e stablished that t h e fa ther wa s sentence d on mul tip le dr

ug of fe ns e s in both Te nn e sse e and Vi rg ini a and re c e ive d a

15 y e ars se nte nc e in V ir g ini a and a similar se ntence in Tennesse e.

The Court fou n d the child had be en in foster car e for three y ear s, since she w as 11 mon ths old , a

nd tha t the fathe r ha d att e mpt e d to mainta in pho ne c on ta c t, b ut h a d n ot s e e n th e c hil d since July 2004. The Court said the c hild was doing well in the f o s ter home, a

nd she ca lled the foster pare nts “ mommy

/daddy ”, and had a strong bond with the foster pare nts

. T h e C o urt deter mined the child had a

sensory disorder a

nd rec eived oc cupational ther apy , an d t h at the occupational therapist s tated the child neede d consistent treatment and full-tim e attention, and the foster f amily was providing for this. The Court stated that he had considere d all the fa ctors in Tenn. Code Ann. §36-1- 113, and the child’s best interests required ter mination. Further , that to remove the child from the f

oster home would have a de vas t at i n g eff ect on the c hild’s well-being , and the fathe r did not show that he could pr ovide a suitable home for the c hild.

The iss u e o na

p p e a l i s w h e th e r

th e T r ia l C o u rt e r

r e d in f in d in g , b y

c le ar and c on vin c inge vid e nc e , th a t te rm inatio n o f f a the r’ s p are nta l r ig hts wa s in the c hil d’ s b e st i nte re sts ?
Th e be st i nte re sts ana ly sis is o utl ine d in Te nn . Co de Ann. §3 6- 1- 11 3 w hic h s tate s: (I ) I n d e te rm ini ngwh e the r te rm inatio n of pare nta l or g ua rd ians hip ri g hts is i n th e be st interest of the child pursuant to this part, the court shall consider, but is not li mited-3- t o , t h e f o l l o wi n g: (1) Whether

the par ent or guardia

n h as m ad e such a

n adjustment of c ir c ums tanc e , c on du c t, or c on dit ion s a s to make it s a fe and in t he c hil d' s b e st interest to be in the home of the par ent or guardia

n; (2) Whether

the par ent or gua

rdian ha s failed to ef

fec t a lasting adjustment afte r re asonable eff

orts by available social ser

vices a g encie s f

or such dur ation of time that lasting a djustment does not reasona bly appea r possible; (3) W hether the parent or guar dian has maintained reg ular visi tation or other contac t with the child; (4) Whether

a mea ningf ul relationship has ot herw ise bee n established betwee n the par ent or guardia n and the c hild; (5 ) T he e ff

e c t a c ha ng e of c are takers and

phy sic a l e nv ir on me nt i s li ke ly to have on the child' s emotional, psy cholog ical and me dical condition; (6) Whether

the par ent or guardia

n, or other person re siding with the pa rent or guardia n, has shown bruta lity , p hy s ic a l, s e xu al, emotional or psycholog ical abuse, or neg lect towar d the child, or a nother c hild or adult in the family or household; (7 ) Wh e the r t

he ph y sic a l e nv ir on me nt o f t he pa re nt' s o r gua

rd ian' s h ome is healthy and saf e, whe ther ther e is criminal ac tivity in the home, or whe ther there is such use of a lcohol or controlled substanc es as may rende r the pa

rent or g ua rd ian c on sis te ntl y

un a ble to c are fo r t

he c hil d in a sa fe and

sta ble manner ; (8 ) Wh e the r t

he pa re nt' s or gua

rd ian' s me nta l and

/or e mot ion a l st a tus wo uld be de tr ime nta l to the c hil d o r p re ve nt t he pa re nt or g ua

rd ian f ro m e ff e c tiv e ly providing safe and stable c are and super vision for the child; or (9) Whether

the pare nt or g uardia

n has paid child support consistent with the ch i l d support g uidelines promulg ated by the depa

rtment pursuant to § 36-5-101.
Due to the f

ather ’s incar cer ation, he was unable to show that he had “ma de such a n a dju stm e nt o f c ir c ums tanc e s, c on du c t, o r c on dit ion s a s to make it sa fe and in the c hil d’ s b e st i nte re st to be in the home of the pare n t ”. M o re o v er , it was speculative whether he could pr ovide a g ood home once he wa s relea sed . He stated that he was free of drug s and did not intend to go ba ck to that lifesty le once he wa s relea sed fr om prison, but the Trial Court obviously reje cted his testimony

.-4- Th e fath e r

c l a i m e d t o h a v e a

m e an i n g f

u l r e l a t i o n s h i p w i t ht h e c h i l d , b u tt h e o n ly c on ta c t th e fathe r h a d w iththe c hil d s inc e 20 04 wa s in fr e qu e nt p ho ne c on ta c t.

The e vidence establishes that t h e child wa s happy and we ll-adjusted in her f oster home, that she was well-loved by her foster family and that she love d them in return, a nd that they had provide d for he r every need, including her need for therapy to help wit h her A DHD a nd sensory issues. The occ upational t hera pist testified at g reat leng th reg ardingthe child’s issues and the need for c ontinual therapy , both in the office and at home, in order for he r to overc ome her

disorder. The thera pist corroborated that a c hang e of care g ivers and environment would be very detrimental to the ch i l d , an d wo u l d l i k el y cau s e re gre s s i o n
. W e c o n cl u d e t h at t h e e v i d en ce wa s cl ea r a n d co n v i n ci n g, a s f ound by the Tr ia l Co ur

t, t hat te rm inatio n o f t

he fathe r’ s p are nta l r ig hts wa s in the c hil d’ s b e st int e re st.
We affir

m the J udg ment of the Tr ial Court and remand, with the cost of the a ppeal to P.W .K.

______________________________ H ER SCH EL P I CKE N S F RAN KS , P

. J.