### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs, Septem

ber 16, 200 2 THE STATE OF TEN NESSEE, DEPA RTMENT OF CHILD REN’S SERVICES, v. TL C Direct Appeal from the Juvenile Court for Hamilton County No. 168,377 Hon. Suzanne Bailey, Judge FILED OCTOBER 14, 2002
No. E2002-00699-COA-R3-CV

The Trial Court terminated the mother’s parental rights on statutory grounds. On appeal, we affirm the Tria l Court’s Judgment. Tenn. R. App.P.3 Appe al as of Right ; Judgme nt of the Juve

nile Court

Affirme d.
H ERSCHEL P ICKENS F RANKS , J., delivered the opinion of the court, in which C HARLES D. S USANO , J R ., J., and D. M ICHAEL S WINEY , J., joined.
Julie A. Ha

ll, Chatta nooga, Tenness ee, for

Appellan t.
Paul G. Summers , Attorne y General and Repor

ter, and Dougla s Earl Dim

ond, Assis t ant Attorne y General, Nashville, Tennessee, for Appe llee.

OPINION

In this actio n, the Tri al Judge t erminated the mothe

r, TLC’s pare

ntal r ig hts to the child, JAC, and the mother has appealed.

JAC was born May 17, 1994, a nd was voluntarily placed by his mother, TLC, at Bethel Bible Village in July of 1999. At that time TLC was homeless , unable t o properly c are for her son, living in and out of motels, and at times sleeping in a car. On August 19, 1999, TLC was involved in an accident in whi ch her b oyfriend wa s killed, and she later pled guilty to charges of vehicular homicide. She was incarcerated until February

11, 2000, and received a sentence of e ight yearsin the Department of Corrections, suspended with intensive probation. JAC came int o State custo dy in September, 1999, and under the permanency plan developed in conjunction with th e Departm ent, TLC agreed to obtain and maintain safe housing, obt ain a pa renting assessment and-2-

follow up with any rec ommended counseling, complete an alcohol and drug

assessme nt, submit to drug and alco

hol testing

and trea tment, an d remain

drug fr ee. She a lso agr eed to vis it with the c

hild for 4.3 ho urs per m onth afte r she wa s relea sed from

jail.
TLC remaine d free e

ight mont hs after her rel ease fr

om jail, but

h er pr obation was revoked and she w as re-in

carce rated in November 2000, after twice testing positive for marijuana use. A department worker testified that TLC visited her son only one time at Bethel during the entire time she was free. Accord ing to the wi tness , Bethe l Bibl e Vill age was less than a mile from the bus stop at Northgat e Mall, and that she had offered TL C bus tickets. She further testified that she instructed TLC to contact Be thel if she had any problem, as they

are re ady to assist pa

rents wit h visitation.
TLC testified she had not had regular contact with her son since 1999. She stated that she missed visitations with her son because she couldn’t get out to Bethel due to the bus schedule. She testified that after she was back in prison she did write

her son a letter a week fr om January

to June, and th

en once a month af

ter that.
She testified that she had not made arrangeme nts to have the parenting assessment done under the plan, and gave var ious excuses for not calling son on the phone.
TLC paid no child support during the time she was out of jail, although she had a job and income. She testified that no one ever asked her to pay support, and she thoug ht she was being allowedto save up money to g et a ho me established to t ake her son. She did not know when she would be released, but anticipated serving a t least another ye ar on her eight y ear sentence. She concede d that h er patt ern had not re ally chan ged very muc h, and admit ted th at she could not gi v e her son the stability he needs, and she could not offer any

reason the Court

should not terminated her rights, “other that aren’t being se lfish, because I just don’t want him to.”
A case worker testified that JAC is getting the permanency he needs, and responding well in a normal family e nvironment, and that

when he was placed

with a foster family he

bonded immediate

ly with them, that he continues to receive counseling service s, and does n’t wa nt to talk about his mother.

The witness stated t hat she gave TL C the telephone numbers for arranging the parenting ass ess men t, but she nev er m ade arr ang eme nt s du rin g th e ti me s he w as o ut of j ail , t hat TLC had a steady job

and housing, and was meeting the other ter ms of her probation, except for failing two drug screens, but did not maintain contact with her son.

The Tr ial Court found by clea r and convincing evidence that “De fendant made no reasona ble effortsto provide

a suitable

home and d

emonstra ted a lac k of conc ern for

the child to such a degree that it appears unlikely she will be able to provide a suitable home for the child at an early date, that there is little likelihood that said conditions will be remediedat an early age so that the child can be returned to the mother in the near future; that the continuation of the legal parent and-3-

child relation ship gre atly

diminishesthe chil d’s chances of early integration into a stable and permanent

home; t hat the D efenda

nt failed to comply

in a substa

ntial mann

er on the reasona ble responsibilities of the Fo ster Car Plan; that t

he Defe ndant willfull y abandone d the child for more than four (4) consecu

tive monthsnext prec eding th e filing of the pe tition in th

is cause an d it is therefore, for the b est inter est of the said chi ld and the public that all of the parent rights of the Defendant to the said child be forever ter minated. . . .”
Our review o f a Tria

l Court sitti ng without a jury is de novo upon the record, with a presumption of correctness. T e nn. R. App. P. 13(d). Alexander et al, v. Inman, 974 S.W.2d 689, 692 (Tenn. 1 998). The

Trial Co u rt’s conclusions of law are subject to de novo review with no presumption of correctness. Campbell v. Florida Stell Corp. , 919 S.W.2d 26, 35 (Tenn. 1993).

A parent’s right to care, custody and control of his or her child is not absolute, and may be terminated if justified by the State’s p rovin g by c lear and convincing evidence of the statutory grounds for

termination. O’Daniel v. Messier , 905 S.W.2d 182, 186 (Tenn. Ct. App. 1995). The standard for clear and convincing evidence has been

defined as “that measure or deg ree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established .” Wiltcher v. Bradley , 708 S.W.2d 407, 411 (Tenn. Ct. App. 1985). Statutory grounds f or termination of parental rights are set forth in Tenn. Code Ann. §36-1- 113 (2001). It well settled that termination of pare ntal rights may

be grounded upon the showing by clear and convincing evidence of the existence of a ny one of the statutory

bases. See In r e C. W.W. et al., 37 S.W.2d 467, 473 (Tenn. Ct. app. 2000).

Tenn. Code Ann. §36-1-102(1)(A) defines “abandonment”. Subsection (i) provides that “For a period of

four (4) consecutive months immediately preceding the filing of a pr oceeding

. . . to terminate the parental rights of the pare nt(s) . . . that the parent(s) . . . either have wi llfull y failedto visit or have willfully failed to support or make reasonable pay

ments towardthe support of the child.” Subsection (iv) applies to situations where the parent is incarcera ted for all or part

of the period prior to filing the petition: “A parent . . . is incarcerate d at the time of the in stitution of an action or proceeding . . . or . . . h as been incarce rated du rin g all or part of t

he four (4) months immediate

ly preceding the institution of such action or proceeding , and either has wi ll fu ll y failed to visit or has willfully failed to support

or make r easonab le pay

ments towa

rd the sup port of the child for four (4) consecutive months immediately preceding such parent’s . . . inca rceration, or the parent

. . . has engaged in conduct prior to incarceration which exhibits a wanton disregard for the welfare of the child.” TLC arg

ues that because the State did not allege subsection (iv), that the Court is in some way limited to proof of TL C’s actions only during

the four months immediately prec eding the filing of the pe

tition on Ma

y 29 , 2001, when she wa s incarc erated , cit ing ca se authority for the proposition that under Tenn. R. Civ. P. 8.01 and 12.06, facts must be plea ded to st ate a claim for relief. Counsel misinterprets the statute which merely defines “abandonment” for the purposes of the adoption statute. The statute does not create a cause of action, since

TLC was incarcer

ated during the four months immediately prec eding the filing of the petition, subsection (iv) is applicable as the relative time period. Th us, the relevant time period is the four months preceding de fendant’s incarceration

in November 2000, during which abandonment would be established by proving either-4-

willfully failing to visit the

child, willfully

failing to make r

easonab le pay

ments towa

rd his supp ort, or engaging in conduct that exhibited a wanton disregard for the child’s welf are. The Court found by clear and convincing evidence that, bas ed upon the visitation alone, TLC had abandoned the child. The Trial Court observed :

You let this child si t for a period of months [in Bethel] while you we re worki ng, you

did have income. Y ou did hav e the abi lity to pay to visit this child, and you didn’t.
You weren ’t demonstrating then that y ou prioritized this child in your life. Instead y ou were prioritizing being either co-dependent on somebody else for your existence, following their way of life, but

you didn’t do what y

ou could have done.

. . . So on the grounds of failure to fol low t hrough on her fo ster ca re plan, as well as abandonment on the grounds of lac k of visi tation, and lack of attempt to be reunitedwith this child, I believe strongly also the remainder of

the evide nce that it is indeed in

the child ’s best

interest to be presented the opportunity to continue where he is, or at least for a permanent home.
This Court has previous ly rejected th e argument that self-crea ted legal problems, such as incarc eration

for drug offense s can excu se a

parent’s failure to visit his or her child. In re M.C.G., No

. 01A01-98 09-JV00461 , WL 332 729; In re Shipley , No. 03A0 1-96 11-JV -003 69, 19 97 WL 596281.
A parent with a criminal history for drug offense s, who fa

ils drug screens and who violates parole and does not visit their child during the periods they are in and out of pri son, pres ents clear and convincing evidence of abandonment, as well as wanton disregar d for the welfare of

the child. State v. J.S., et al , 2001 Ten n. App. L exis 796, No. M2 000-0321 2-COA-R3 -JV; G.M.C. et al. v. A.V.I., 2000 WL

2295686, No. E2000- 00134-CO A-R3-CV; In re C .W.W. et al, 37 S.W.2d 467, 473 (Tenn. Ct. app. 2000). Also see State v. J.S., 2001 Tenn. App. Lexis 796, No. M2000-3212, COA-R3-JV.; State v. Gr ant , 2002 Tenn. App. Lexis 158, No. W2001-01934-COA-R3-JV. The record establishes by

clear and convincing evidence as found by the Tr

ial Court that TLC abandoned the child and failed to follow through on other responsibilities in the foster care plan. See State v. Frazier , 2002 Tenn. App. Lexis 138, W2001-01935-COA-R3-JV.

After determin ing that ground s exist to ter

minate pa rental r ights, the trial ju dge is require d to consider the statutory c riteria to determine whether termination is in the child’s be s t interest

. See Tenn. Code Ann. §36-1-113(i). These factors are not exhaustive, and at least seven of the nine factors in the statute are implicated in this case. See also, G.M.C. et al v. A.V.I. , 2000 W L 1195686, No. E2000-00134-COA-R3-CV. Expecting a y oung ch ildto wait years on a

n incarcerated parent to remedy

his or her problems is neither reasonable, nor in the best interest of the child. In re Shipley , No. 03A0 1-96 11-JV -003 69, 19 97 WL 596281; State v. T. K. , 2002 WL 1115730 (Tenn. Ct. App. ES).-5- The evidence establish

ed that JAC isbonding

well and is now happy, outg oing and not emotion ally

detached. On

the other hand, TLC could g ive no reason for the Court to consider other than her being “selfish” and “she did want him to” to deny termination. The Trial Court found the child was adoptable, and he has hope for a re al life with a real family . Continuing the parental relationship would destroy any hope he

has for a real future in the Trial Court’s opinion. We hold there was clear and co nvin cing e vidence that the child’s best interest is served by termination of TLC’ s parent

al righ ts. The cost of the appeal is assessed to TL C, and the cause remanded.

_________________________ H ERSCHEL P ICKENS F RANKS , J.