### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE April 5, 2001 Sessio

n STATE OF TEN

NESSEE, DEP

ARTMENT OF

CHILDREN’S

SERVICES v. D. S. Appeal from the Juvenile Court for Davidson County File No. 9719-32102 Betty Adams-Green, Judge

No. M2000-02380-COA-R3-JV - Filed May 9, 2001

The parental rights of the petitioner (Mother) to her child , “R.”, born January 29, 1997 during her Mother’s incarceration, were terminated upon a finding that statutory grounds therefore we re proved by clear and convi

ncing evidence. Weighing very carefully the Mother’s constitutional right to care for her child, on th

e one hand , and the best interests of the child, on the other, we vacate the judgment and re

mand for further

proceedings. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Juvenile Cour

t Vacated and Remanded W ILLI AM H. I NMAN , S R . J., delivered the opinion of the court, in which W ILLI AM C. K OCH , J R . and D. M ICHAEL S WINEY , JJ., joined. Kathleen G. Morr

is, Nashville, Ten

nessee, for the a

ppellant, D. S. Paul G. Summers, Attorney General and Reporter, and Elizabeth C . Driver, Assistant Attorney General, Nashville, Tennessee, for the appellee, State of Tennessee, Department of Children’s Services. OPINION Background The Department of

Children’s Services of the State of Tennessee (“DCS”) filed two petitions to terminate the parental rights of D. S. (“Mother”) to whom R. was born January 29, 1997. Mother was incarcerated at the time she gave birth; two putative fathers were initially identified, but were eliminated as a result of DNA testing. Because Mother repor ted that S awyer was the biological father he was joi ned inthe first p etition; a fter he w as elimina

ted by D NA testing

, Mother n

ext-2-

identified Crump as the biological father. He too was eliminated by DNA testing , and thus the biological father remains unknown. Tennessee Code Annotated § 36-1-113 authorizes the termination o f parental right s. This statute provides that

termination of such rights must be based upon a finding by the court by clear and convincing evidence that the grounds for termination have been established, and that te rmination is in the best interests of the child. The grounds for termination of the parental relationship in this case may be (1) a bandonment by the parent, or (2

) substantial nonc

ompliance by

the parent with a p

lan of care, or (

3) the child

has been removed from the home of the parent for a period of six months, and the conditions which led to the child’s removal still persist with little likelihood that the condition will be

remedied at an e

arly date and thus diminishes the child’s chances of early in tegration into

a safe, stable and permanent home. Tenn. Code Ann. § 36-1-113(g)(1)(2)(3)(A). The trial court found by clear and convi ncing ev idence that R. had been removed from Mother and her unknown father fo r more than six months and the conditions which led to her removal still persists and therefore prevent her return with little likelihood that the conditions

will be remedied at an early date, thus diminishing R.’s chances of ear ly integration into a stab le and permanent

home. The cour t further found th at Mother and unkn

own father substa

ntially fail

ed to comply with a Permanency Plan of Care which wa s reasonabl e and related to the conditions necessitating r

emoval. With respect to the best interests of R., the court found that Mother failed to make such an adjustmentof circumstances, conduct or conditions as to make it in R.’s b est interests to

return home in the foreseeable future. The parental relationship was terminated. Discussion The evidence is essentially undisputed. Mother is 24 years old. She was convicted and sentenced to

a term of incarc

eration for thef

t, was soon paroled, and

while on probation

was again cha

rged with theft and forgery for

which she was incarcerated. During this pe riod of incarceration, R. was born. It was expected that her grandmother

would take her home from the hospital, but she failed to do so, and R. was thereupon placed in the cust

ody of DCS. Mother is HIV positive, and a former drug user. R. was tested throughout the first two years of her life and never tested positive for HIV. Mother was released f

rom prison in

July 1997 and r

emained out of jai

l for approximately

one month, during which time she had custody of R. Upon her release, Mother lived with a cousin for a short time. She then visited a friend whom she asked to watch R. while she went to cash a check.-3-

While she was gone, the friend a llowed a man who sold dr ugs to hold R. He approached a vice car withthe chil d and the police called DCS. When she returned, Mother discovered what had happened. She then left the house with R., but was re-arrested soon thereafter and R. returned to the sam e fos ter fam ily s he l ive d wi th p revi ous ly. Mother remained incarcerated until February 8, 2000. She wa s free until March 28, 2000 when she was re-arrested. At the time of trial, she was still in prison, although not yet convicted of any new charges. She remained in jail because she could not post bail and did

not know when she would be released. In summary, Mother has had the custody of R. for a bout one month o wing to her criminal behavior. She participated in a plan of care for R. in October 1998; her obligations under this plan were to resol ve all legal p roblems, p rovide a hom e for R. and s ubmit to r andom drug t esting. The Issues The issues on appeal are (1) whet her the trial court erred in finding that DCS provided by clear and convincing evidence that the persistence of conditions which le d to the removal of

R. would subject her to further neglect with little likelihood of remediation, and (2) whether the court erred in finding that DCS proved by clear and convincing evidence that the mother failed to follow the permanency

plan for R. In Hawk v. Hawk

, 855 S.W.2d 573 (Tenn. 1993) the Supreme Court made it c

le ar that a parent “has a constitutional right to the custody, companionship, and care of a child, and should not be deprivedthereof except by due process of la

w.” State interve

ntion in the parent

-child relationsh

ip must be justified. Against these principles we weigh whether the evidence was clear and

convincing that th e conduct of Mother resulted in, or would result in, substantial harm to R. Clear an d convincing evidence is a stringent burden the State must bear; DCS must produce evidence which eliminates any “serious or substantial doubt concerning the correctne ss to be drawn from the evidence.” In a contest between a parent and non-parent, a parent cannot be deprived of the custody of a child unless ther

e has been a find

ing of substantia

l harm to the child. O

nly th en may a court engage in a “general best interests” of the child ev aluati on i n ma kin g a de ter min ati on o f cus tod y. In re: Adoption of a female child (Bond v. Mckinzie) , 896 S.W.2d 546 (Tenn. 1995). The trial court made n

o sp ecific finding s of fact as required by Tenn. Code Ann. § 36-1- 113(K). Mother argues

that this oversig

ht, standing alon

e, requires a re

versal of the judg

ment. We cannot agree that this

oversight is as dr

aconian as Mothe

r insists. We must still

review the evidence to determine its sufficiency, see Brooks v. Brooks , 992 S.W.2d 403 (Tenn. 1999). The judgment below r

eflectsthat

the trial court essentially found that Mother’s incarceration was sufficient reas

on to terminate

her parental re

lationship. A diffi

culty with thi

s rationale is

found in the fact that the Legislature provided a specific statute which addre sses the precise issue:-4-

The parent has been confined in a correctional or detention facility of any type, by order of the court

as a result of a c

riminal act, unde

r a sentence of 1 0 or more ye ars, and the child is unde

r 8 years of

age at the time th

e mother is entere

d by the cour

t. We note that

DCS did not allege this ground for termination, since Mother was not serving a 10-year sentence. Rather, Mother had been paroled from prison following incarceration

for the ft o f pr ope rty, and had beenincarcerated, but not convicted , on a new charge. Her incarceration resulted from her inability to make bond. The record

reveals no evidence of the length of the sentence Mother was serving w hen she was paroled in February 2000. In point of fa ct, there is no documentary evidence of any criminal conviction. The information is revealed only by Mother’ s testimony; as nearly as may be deduced, she was convi cted of theft of property in 1995. When R. was born in January 1997, Mother wa s incarcerated

for a parole violation. Her only other conviction was in co nne ction with theft of property in September 1997. She was paroled in February 2000 , but later arrested on a new charge about which the record is essentially silent. Mother attributes her criminal conduct an d her convictions to “being in the wrong place with t he wrong people” as distinguished from proactive cri min ali ty. In a similar vein, the

record revea

ls no evidence ab

out the length

of time Mother woul

d remain incarcerated, if indeed, she is convicted of the new charge

. Conclusion For these reasons we resp

ectfully dis

agree with the

trial judge that D

CS proved by clear and convincing evidence that persistence of conditions which would subject

R. to further neg

lect with littlelikelihood of ear

ly remedia

tion, and proved th

at t he continuation of th e parent-child r elationship diminished R.’s early integration into a permanent home. The re cord ref lects that R. had bonded withher foster home, but as Mother obs erves, the test i s not whether she is bonded to her foster family but whether she c

an achieve per

manency in

her mother’s care. The record is de ficient in this respect, as we have seen, because no proof was offered re specting the nature of the new offense. Fin all y, the permanency

plan which Mother

was found not to hav

e followed was no

t filed in evidence, per se ; rather, all orders entered in the case - and there were many such entered

- included the plans, andevidence was pr esented as to

the requirements of these plans. Mother argues that she, in fact , di d su bst ant ial ly co mpl y with the pla n to the extent she was enabled, keeping in mind her incarceration. We find that the record does not reflect clea r and conv incing evidenc e that there is littl

e likelihood the conditions which justified R.’s removal will be unremediable at an early date, or that the best interests of R. require that thepare nta l re lat ion shi p sh oul d be ter min ate d. A ccor din gly, the judgment is vacated and remanded for further procee

dings, without pre

judice to the reop

ening of this case for additional proof. We neither hold nor intimate that incarceration for le ss than 10 years-5-

cannot suffice to terminate the parental relationship. A difficulty with the proof in this case is found in the fact that the r

ecord does not cl

early ref lect the nature o

f mother’s crimin

al a cts, th e precise charges, the precise sent

e n ces, the times served, and, particularly, plenary information about mother’s most recent brush with the law. R.’s status wil l remain subject to further order of the trial court. Costs are assessed to the petitioner.

___________________________________ WILLIA M H. INMAN, SENIOR JUDGE