IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs January 11, 2005

STATE OF TENNESSEE DEPARTMENT OF CHILDREN’S SERVICES v.

F.S.B.

 Appeal from the Juvenile Court for Sullivan County

No. J28,226 James H. Beeler, Judge

No. E2004-01220-COA-R3-PT 0 FILED JANUARY 28, 2005

The trial court terminated the parental rights of F.S.B. (“Father”) with respect to his two minor

children, K.L.B. (DOB: September 19, 1997) and S.L.B. (DOB: July 21, 1999). Father appeals,

arguing, inter alia, that the evidence preponderates against the trial court’s finding, stated to be by

clear and convincing evidence, that grounds for termination exist. We affirm.

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

Affirmed; Case Remanded

CHARLES D. SUSANO,JR.,J., delivered the opinion of the court, in which D. MICHAEL SWINEY and

SHARON G. LEE, JJ., joined.

Murry C. Groseclose, Kingsport, Tennessee, for the appellant, F.S.B.

Paul G. Summers, Attorney General and Reporter, and Juan G. Villaseñor, Assistant Attorney

General, for the appellee, State of Tennessee Department of Children’s Services.

OPINION

I.

In October, 2001, K.L.B. and S.L.B. (collectively “the children”) came into the custody of

the Department of Children’s Services (“DCS”), following a finding that the children were residing

with their mother, S.S.B. (“Mother”), in a condemned apartment with a vicious dog. At the time of

the removal, Father was living in Virginia; he testified at trial that he had left his wife and children

to go to Virginia because he and his wife “kept arguing.”

On February 10, 2003, DCS filed a petition to terminate the parental rights of Father and

Mother. The case was heard on January 14, 2004. On February 5, 2004, the trial court entered its
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order, terminating the parental rights of Father and Mother to the children. From this order, Father

appealed. Mother did not appeal.

Subsequently, DCS filed a motion before this court, seeking to vacate the trial court’s final

order as to Father and to remand the case to the trial court for the purpose of entering an order that

contained specific findings of fact and conclusions of law, pursuant to Tenn. Code Ann. § 36-1-

113(k) (Supp. 2004). On October 12, 2004, this court granted DCS’s motion. One month later, the

trial court entered an amended order, finding, by clear and convincing evidence, that grounds for

terminating Father’s parental rights existed and that termination was in the best interest of the

children. Specifically, the court made the following findings:

Here, the Court concludes that there is clear and convincing evidence

to support grounds for termination of [Father’s] parental rights to his

children under Tenn. Code Ann. §§ 36-1-113(g)(1) and (g)(3)(A). In

addition, the Court concludes, based on clear and convincing

evidence, that termination of [Father’s] parental rights is in his

children’s best interest. Each ground is discussed in turn.

* * *

[T]he Court concludes that [Father] willfully failed to support and to

visit his children in the four-month period preceding the filing of

DCS’s petition to terminate his parental rights. Tenn. Code Ann. §

36-1-102(1)(A)(i). The evidence is undisputed, based on [Father’s]

own admissions, that he failed to support his children in the relevant

four-month period, and since the children have been in DCS’s

custody. While [Father] was gainfully employed during July to

October 2002, and continued working in odd jobs between November

2002 and February 2003, he failed to provide any support for his

children. Significantly, [Father] admitted that he had no reason for

not working in 2001 and 2002. [Father] was not incarcerated during

this period of time. [Father’s] only reason for failing to support his

children was that if he had provided support, his wife would have

misused the funds. Although this could be the case, [Father] did not

present any proof to support his bare assertion.

In any event, the Court notes that parents have a duty to support their

children. Tenn. Code Ann. § 34-1-102(a). Because [Father] willfully

failed to fulfill his duty to support his children, choosing instead to

leave his wife and children in a condemned apartment building with

a vicious dog, [Father] committed abandonment. Tenn. Code Ann.

§ 36-1-113(g)(1).
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* * *

The Court also concludes that termination of [Father’s] parental rights

is supported by clear and convincing evidence under Tenn. Code

Ann. § 36-1-113(g)(3)(A). The children were removed on October

10, 2001, because they were without a proper guardian and they have

remained in DCS’s custody eversince. Further, the conditions which

led to the children’s removal still persist. The children were

originally removed because [Father] abandoned his children due to

marital problems. The undisputed proof at trial showed that [Father]

left for Virginia and had previously left for Florida for similar

reasons. During these times, [Father] simply left his children, failing

to provide any support or to stay in contact with them. Notably,

[Father] initially learned that DCS had custody of his children in July

2002, when he returned from Virginia. Yet, [Father’s] dereliction

continued and he failed to contact DCS until January 2, 2003, when

he finally met with the DCS case manager for a permanency plan

staffing. Following this meeting, however, [Father] again

disappeared, despite numerous, albeit unsuccessful, attempts by DCS

to contact him. In light of this proof, [Father’s] lack of interest in his

children is patently obvious.

In addition, there are other conditions which would subject the

children to further abuse or neglect. [Father] admitted to engaging in

serious criminal acts for which he received a substantial prison

sentence of 11 months and 29 days. On January 12, 2003, [Father]

was involved in an automobile accident in which he rear-ended

another vehicle and fled the scene of the accident. [Father] was

convicted [of] four counts of assault, driving with a suspended

license, leaving the scene of an accident, and evading arrest. The

Court notes that the “other condition” here is not [Father’s]

incarceration, but his underlying criminal acts, which would have left,

once again, his children without a proper legal guardian.

Given [Father’s] continued disinterest in his children, his failure to

support them, and his criminal behavior, the Court concludes that it

is unlikely that, the conditions which led to removal, or other

conditions which would subject the children to further abuse, would

be remedied at an early date. Finally, the Court finds that the

continuation of the parent-child relationship greatly diminishes the

children’s chances of integrating into a safe, stable, and permanent

home. As the undisputed proof showed, the children’s behavior has

dramatically improved since their placement with Lisa Lewis, their
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foster mother. Moreover, Lewis manifested a clear wish to adopt the

children, who have become part of her family and who address her as

“mom.”

For these reasons, the Court concludes that termination of [Father’s]

parental rights is warranted because he failed to remedy the persistent

conditions in his life that prevented the children’s return.

The court went on to make comprehensive findings related to the best interest of the children, which

findings will be discussed later in this opinion.

II.

Our review of this non-jury case is de novo; however, the record comes to us accompanied

by a presumption of correctness as to the trial court’s factual findings, a presumption we must honor

unless the evidence preponderates against those findings. Tenn. R. App. P. 13(d). No presumption

of correctness attaches to the lower court’s conclusions of law. Jahn v. Jahn, 932 S.W.2d 939, 941

(Tenn. Ct. App. 1996). 

III.

The law is well-established that “parents have a fundamental right to the care, custody, and

control of their children.” In re Drinnon, 776 S.W.2d 96, 97 (Tenn. Ct. App. 1988) (citing Stanley

v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)). This right, however, is not

absolute and it may be terminated if there is clear and convincing evidence justifying termination

under the pertinent statute. Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599

(1982). Clear and convincing evidence is evidence which “eliminates any serious or substantial

doubt concerning the correctness of the conclusions to be drawn from the evidence.” O’Daniel v.

Messier, 905 S.W.2d 182, 188 (Tenn. Ct. App. 1995).

Tenn. Code Ann. § 36-1-113(g) lists the grounds upon which parental rights may be

terminated, and “the existence of any one of the statutory bases will support a termination of parental

rights.” In re C.W.W., 37 S.W.3d 467, 473 (Tenn. Ct. App. 2000). The issues raised in the

pleadings, and the trial court’s findings, cause us to focus on the following statutory provisions:

Tenn. Code Ann. § 37-1-147 (2001)

(a) The juvenile court shall be authorized to terminate the rights of a

parent or guardian to a child upon the grounds and pursuant to the

procedures set forth in title 36, chapter 1, part 1.

* * *
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Tenn. Code Ann. § 36-1-113 (Supp. 2004)

(a) The chancery and circuit courts shall have concurrent jurisdiction

with the juvenile court to terminate parental or guardianship rights to

a child in a separate proceeding, . . . by utilizing any grounds for

termination of parental or guardianship rights permitted in this part

or in title 37, chapter 1, part 1 and title 37, chapter 2, part 4.

* * *

(c) Termination of parental or guardianship rights must be based

upon:

(1) A finding by the court by clear and convincing evidence that the

grounds for termination of parental or guardianship rights have been

established; and

(2) That termination of the parent’s or guardian’s rights is in the best

interests of the child.

* * * 

(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 [Tenn.

Code Ann.] § 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 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
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(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.

* * *

Tenn. Code Ann. § 36-1-102 (Supp. 2004)

As used in this part, unless the context otherwise requires:

(1)(A) “Abandonment” means, for purposes of terminating the

parental or guardian rights of parent(s) or guardian(s) of a child to

that child in order to make that child available for adoption, that:

(i) For a period of four (4) consecutive months immediately preceding

the filing of a proceeding or pleading to terminate the parental rights

of the parent(s) or guardian(s) of the child who is the subject of the

petition for termination of parental rights or adoption, that the

parent(s) or guardian(s) either have willfully failed to visit or have

willfully failed to support or have willfully failed to make reasonable

payments toward the support of the child;

* * *

(D) For purposes of this subdivision (1), “willfully failed to support”

or “willfully failed to make reasonable payments toward such child’s

support” means the willful failure, for a period of four (4) consecutive

months, to provide monetary support or the willful failure to provide

more that token payments toward the support of the child;

(E) For purposes of this subdivision (1), “willfully failed to visit”

means the willful failure, for a period of four (4) consecutive months,

to visit or engage in more than token visitation;

IV.

Father raises three issues for our consideration: (1) whether the trial court erred in admitting

into evidence certain hearsay testimony; (2) whether Father’s due process rights were violated when

he was not made a party to foster care reviews during the children’s dependency and neglect

proceedings; and (3) whether the trial court erred in finding the existence of grounds for terminating

Father’s parental rights. We will address each of these issues in turn.
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A.

Father first contends that the trial court erred when it allowed two witnesses for DCS to

testify about statements made to them by Mother concerning Father’s alleged acts of physical abuse

toward both Mother and the children. At trial, Father objected to the testimony on the basis that it

constituted inadmissible hearsay under Tenn. R. Evid. 801 & 802. The trial court overruled the

objections and allowed the witnesses to testify about what Mother had told them about the alleged

physical abuse. 

Assuming, without deciding, that it was error for the trial court to have admitted these out-ofcourt statements into evidence, there is absolutely nothing in the record to indicate that the trial court

relied on these statements when deciding to terminate Father’s parental rights. Indeed, the trial court

terminated Father’s rights on the basis of abandonment and failure to remedy persistent conditions

– grounds that have nothing to do with any allegations of abuse. Accordingly, any such error is

harmless error. See Tenn. R. App. P. 36(b).

B.

Father next asserts that his due process rights were violated when DCS failed to make him

a party to the foster care reviews that took place during the children’s dependency and neglect

proceedings. 

Our review of the record reveals that at no time did Father raise this issue before the trial

court. The law is well-established that issues not raised before the trial court cannot be raised for

the first time on appeal. State Dep’t of Human Servs. v. Defriece, 937 S.W.2d 954, 960 (Tenn. Ct.

App. 1996). However, assuming, for the sake of argument, that the issue was properly raised before

the trial court, this Court has held that any violation of due process in dependency and neglect

proceedings may be cured by a subsequent valid termination of parental rights proceeding. See In

re S.Y., 121 S.W.3d 358, 366 (Tenn. Ct. App. 2003). Moreover, a review of the trial court’s final

order reveals that the court in no way relied upon any evidence from the dependency and neglect

proceedings in deciding to terminate Father’s parental rights. This issue is without merit.

C.

Father next contends that the trial court erred in finding that grounds existed for terminating

his parental rights. We disagree. 

In addressing this issue, Father specifically argues that there was no clear and convincing

evidence that he abandoned his children. In support of this argument, Father states that DCS did not

give him an opportunity to visit his children and that, because he did not have a job in the four

months leading up to the filing of the petition to terminate, he had no income and therefore could

not possibly pay child support. He argues that the evidence preponderates against the trial court’s

holding that his failure to support was intentional. With respect to Father’s failure to visit, the trial
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court found – by clear and convincing evidence – that Father had failed to visit his children in the

four months preceding the filing of the petition to terminate. Indeed, the trial court specifically

found that Father had not visited the children since October, 2001. While Father met with the

children’s DCS case worker on January 2, 2003, regarding the children’s permanency plan, the case

worker did not hear from him again, despite numerous attempts to contact him. While Father claims

in his brief that he was unemployed for the entire four-month period preceding the filing of the

petition, he admitted at trial that he was working “odd jobs” during those four months. However,

he did not send any of the income earned from these “odd jobs” to support his children. In fact, the

only reason that Father gave at trial for failing to support the children in the past was due to his

concern that Mother would “misuse” the funds. 

The evidence does not preponderate against the trial court’s finding, by clear and convincing

evidence, that Father abandoned the children. Further, while Father does not raise any issue with

respect to the trial court’s finding that Father failed to remedy persistent conditions, we find likewise

that the evidence does not preponderate against the trial court’s finding of this ground for

termination. The evidence establishes a pattern of Father leaving his family due to disagreements

with Mother and failing to show any interest in his children when he returned to town, even upon

learning that the children were in state custody. In addition, Father committed serious crimes just

one month after meeting with the DCS case worker about his children. Because of his crimes, Father

was sentenced to serve two consecutive terms of 11 months, 29 days in jail. Based upon Father’s

obvious lack of interest in the children, as well as his criminal behavior, the trial court found that the

evidence showed clearly and convincingly that Father had failed to remedy these persistent

conditions. See Tenn. Code Ann. § 36-1-113(g)(3)(A). We hold that the evidence does not

preponderate against these findings, and accordingly, we find that the trial court properly found

grounds for terminating Father’s parental rights.

V.

Finally, we conclude that the evidence contained in the record supports the trial court’s

finding that the termination of Father’s parental rights is in the best interest of the child. The trial

court summarized the factors pertaining to the children’s best interest:

As to the best interest prong, the Court concludes that several

statutory factors under Tenn. Code Ann. § 36-1-113(i) are present in

this case, which DCS proved by clear and convincing evidence.

Accordingly, termination is in the children’s best interest. First,

[Father] has not made any adjustment of circumstance, conduct or

conditions as evidenced by his complete non-involvement in this

case. Tenn. Code Ann. § 36-1-113(i)(1). Even though [Father]

learned in July 2002 that DCS had custody of his children, he did not

meet with DCS officials untilJanuary 2003. Following this meeting,

[Father], however, disappeared once again and failed to assume any

responsibility to regain custody of his children.
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Secondly, the children have not seen or heard from [Father] since, at

least, October 2001 – approximately three years ago. This, of course,

if not the children’s fault. The proof was clear that [Father] failed to

maintain regular visitation or contact with the children and that he

failed to establish a meaningful relationship with them. Tenn. Code

Ann. §§ 36-1-113(i)(3) & (4). In addition, [Father] failed to pay any

child support since his children’s removal. Tenn. Code Ann. § 36-1-

113(i)(9).

Moreover, the effect of a change in caretakers and physical

environment is likely to have a substantially negative impact on the

children. Tenn. Code Ann. § 36-1-113(i)(5). The proof showed that,

since removal, the children have never asked about their father, nor

have they ever visited with him. Lewis, the foster mother, provided

credible, unrebutted testimony that the children have substantially

improved in their behavior and school performance since being with

her. Lewis also expressed her wish to adopt both children. At this

juncture, anychange in environment for the children would be clearly

detrimental to their well-being.

For these reasons, the Court concludes that termination of [Father’s]

parental rights is clearly in the children’s best interest.

The evidence does not preponderate against these findings.

VI.

The judgment of the trial court is affirmed. This case is remanded to the trial court for

enforcement of that court’s judgment and for the collection of costs assessed below, all pursuant to

applicable law. Costs on appeal are taxed to the appellant, F.S.B.

_______________________________

CHARLES D. SUSANO, JR., JUDGE