The mother’s rights were terminated and she apparently did not oppose the termination. 1

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs, May 22, 2007

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN’S SERVICES, v.

P.W.K., IN RE: J.B.K. DOB: 11/25/02

Direct Appeal from the Juvenile Court for Sullivan County

No. 11722 Hon. Paul R. Wohlford, Judge

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

The parties stipulated statutory grounds for termination of parental rights, and the Trial Court found

that it was in the child’s best interest that the father’s parental rights be terminated. 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 of the court, in whichCHARLES D.SUSANO,

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

J. Wesley Edens, Bristol, Tennessee, for appellant.

Robert e. Cooper, Jr., Attorney General and Reporter, and

Lauren S. Lamberth, Assistant Attorney General, Nashville, Tennessee, for appellee.

Kristen Rudder Morrell, Guardian Ad Litem, Bristol, Tennessee.

OPINION

The State filed a Petition to Terminate the Parental Rights of both the father and the

mother to their daughter, J.B.K., on December 7, 2005 . The Petition charged that the child was 1

found to be dependent and neglected on November 26, 2003, when she was 11 months old, due to
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her parents’ drug abuse, and that she had been in foster care ever since that determination. The

Petition charged that grounds for termination, included abandonment, wanton disregard for the

child’s welfare, that the conditions leading to removal still existed, and that the father had been

sentenced to 10 or more years in prison.

The father filed an Answer, admitting that he had received a sentence of ten or more

years in jail, but denied all other grounds for termination, and denied that termination was in the

child’s best interests. 

A trial was held on November 10, 2006, and the parties stipulated that grounds for

termination existed pursuant to the statute, since father had been sentenced to ten or more years and

the child was less than eight years old. The trial proceeded on the sole issue to determine the child’s

best interests.

Following the evidentiary hearing, the Trial Court ruled that he had considered the

statutory factors of Tenn. Code Ann. §36-1-113, and that the factor about change of caretakers and

environment was an “overriding” one. He found that a change of caretakers and physical

environment would have a devastating effect on the child’s emotional, psychological, and medical

condition. The Court observed the child had a severe condition, and it was being adequately and

competently treated, and that the foster parents were providing appropriate care. The Court stated

that it hoped the father would deal with his drug problem and not relapse, but on the record there was

no choice but to terminate his rights. The record established that the father was sentenced on

multiple drug offenses in both Tennessee and Virginia and received a 15 years sentence in Virginia

and a similar sentence in Tennessee. 

The Court found the child had been in foster care for three years, since she was 11

months old, and that the father had attempted to maintain phone contact, but had not seen the child

since July 2004. The Court said the child was doing well in the foster home, and she called the

foster parents “mommy/daddy”, and had a strong bond with the foster parents. The Court

determined the child had a sensory disorder and received occupational therapy, and that the

occupational therapist stated the child needed consistent treatment and full-time attention, and the

foster family was providing for this. The Court stated that he had considered all the factors in Tenn.

Code Ann. §36-1-113, and the child’s best interests required termination. Further, that to remove

the child from the foster home would have a devastating effect on the child’s well-being, and the

father did not show that he could provide a suitable home for the child.

The issue on appeal is whether the Trial Court erred in finding, by clear and

convincing evidence, that termination of father’s parental rights was in the child’s best interests?

The best interests analysis is outlined in Tenn. Code Ann. §36-1-113 which states:

(I) 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
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to, the following:

(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;

(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 or controlled substances 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.

Due to the father’s incarceration, he was unable to show that he had “made such an

adjustment of circumstances, conduct, or conditions as to make it safe and in the child’s best interest

to be in the home of the parent”. Moreover, it was speculative whether he could provide a good

home once he was released . He stated that he was free of drugs and did not intend to go back to that

lifestyle once he was released from prison, but the Trial Court obviously rejected his testimony. 
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The father claimed to have a meaningful relationship with the child, but the only

contact the father had with the child since 2004 was infrequent phone contact.

The evidence establishes that the child was happy and well-adjusted in her foster

home, that she was well-loved by her foster family and that she loved them in return, and that they

had provided for her every need, including her need for therapy to help with her ADHD and sensory

issues. The occupational therapist testified at great length regarding the child’s issues and the need

for continual therapy, both in the office and at home, in order for her to overcome her disorder. The

therapist corroborated that a change of caregivers and environment would be very detrimental to the

child , and would likely cause regression. We conclude that the evidence was clear and convincing,

as found by the Trial Court, that termination of the father’s parental rights was in the child’s best

interest.

We affirm the Judgment of the Trial Court and remand, with the cost of the appeal

to P.W.K.

______________________________

HERSCHEL PICKENS FRANKS, P.J.