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IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON 

Assigned on Briefs December 2, 2020 

IN RE SCARLET W. ET AL. 

Appeal from the Chancery Court for Henderson County

No. 27426 James E. Butler, Chancellor

No. W2020-00999-COA-R3-PT

This is a termination of parental rights case. The Chancery Court for Henderson County 

terminated the parental rights of a mother to two minor children based upon two statutory 

grounds: persistence of conditions and a ten-year prison sentence while the children were 

under the age of eight years old. We reverse the trial court’s finding that the ground of 

persistence of conditions was satisfied by clear and convincing evidence. We affirm, 

however, the trial court’s finding that clear and convincing evidence supports termination 

of the mother’s parental rights based upon her current prison sentence. We also affirm the 

trial court’s conclusion that termination is in the best interests of both children. 

Tenn. R. App. P. 3 Appeal as of Right; Reversed in Part; Affirmed in Part; Case 

Remanded 

KRISTI M. DAVIS, J., delivered the opinion of the Court, in which FRANK G. CLEMENT,JR.,

P.J., M.S., and ARNOLD B. GOLDIN, J., joined. 

Alexander D. Camp, Jackson, Tennessee, for the appellant, Diane W. 

Herbert H. Slatery III, Attorney General and Reporter, and Amber L. Seymour, Assistant 

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

OPINION

Background

The children at issue in this case, Scarlet W. and Talis L. (together, “the children”), 

were born to parents Diane W. (“Mother”) and David L. (“Father”) in 2011 and 2013, 

01/15/2021
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respectively. It is undisputed that Mother has not seen the children since 2014 and that 

Father was caring for the children when the Department of Children’s Services (“DCS”)

first became involved with the family. 

In April of 2016, DCS received a referral alleging that the children were neglected 

and exposed to drugs in Father’s care. DCS contacted Father, and Father admitted to 

abusing methamphetamine. Father also submitted to a drug screen which confirmed his

admission. DCS filed a petition for temporary legal custody of the children on May 31, 

2016, in the Juvenile Court for Decatur County (“juvenile court”) in which DCS alleged 

that the children were dependent and neglected in Father’s care and requested that the 

children be placed in the temporary care of their paternal grandparents. With regard to 

Mother, DCS alleged that her whereabouts were unknown and that Mother was not present

at the time of the children’s removal. That same day, the juvenile court entered a protective 

custody order in which it found probable cause to believe that the children were dependent 

and neglected, noting that Father had tested positive for methamphetamine and was 

arrested for domestic assault against his girlfriend in April of 2016. The juvenile court also 

noted that “[t]he whereabouts of the children’s mother, Diane [W.], are unknown[,]” and 

that “[Mother] has reportedly been out of the children’s lives for approximately (2) years.” 

Accordingly, the children were placed in the temporary custody of Father’s parents. 

Later, DCS discovered that Mother had been arrested on April 4, 2016, and was in 

jail facing a first-degree murder charge. Counsel for Mother appeared at the adjudication 

hearing in the dependency and neglect action and stipulated, on Mother’s behalf, that the 

children were dependent and neglected. Consequently, the juvenile court entered an order 

affirming that the children were dependent and neglected and that temporary custody 

should remain with the paternal grandparents. The case was then closed for a period of 

time. 

In December of 2017, DCS discovered that the paternal grandparents were allowing 

Father to have unsupervised visitation with the children, despite the fact that Father was 

not in compliance with his permanency plan and continued to abuse methamphetamine. A 

new dependency and neglect action was initiated in the Henderson County Juvenile Court,1

and the children were removed from the custody of their grandparents and brought into the 

custody of DCS on January 24, 2018. After another failed placement with different

relatives of Father, the children were eventually placed with CaSandra D. (“Foster 

Mother”) and Jeff D. (“Foster Father”) (together, “Foster Parents”) in August of 2019. 

Father surrendered his parental rights to both children in October of 2019.2 

 

1

 The family was living in Henderson County when the second dependency and neglect action was 

initiated. 

2 Father did not participate in the trial of this cause and is not a party to this appeal. 
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In the meantime, Mother remained incarcerated throughout this case. On March 12, 

2018, Mother pled guilty to voluntary manslaughter and was sentenced to fifteen years in 

prison with a service rate of forty-five percent. DCS filed its petition to terminate Mother’s 

parental rights as to both children on September 18, 2019, alleging two grounds for 

termination: persistence of conditions pursuant to Tennessee Code Annotated section 36-

1-113(g)(3), and ten-year prison sentence while the children are younger than eight years 

old pursuant to section 36-1-113(g)(6). Addressing persistence of conditions, DCS averred 

that “[Mother] continues to lack the proper housing and financial resources to care for the 

children because she remains incarcerated.” Further, DCS averred that the children were 

in a pre-adoptive home and that termination would be in the children’s best interests. 

A trial was held on May 21, 2020 at which Mother, the children’s DCS case worker 

Vatreshia Cox (“Ms. Cox”), and Foster Mother all testified. Overall, Ms. Cox’s and Foster 

Mother’s testimony reflected that the children were happy and doing well with Foster 

Parents and had even expressed the desire to be adopted. Foster Mother testified that both 

children were involved in various sports and that Scarlet enjoyed dance classes. Foster 

Mother and Ms. Cox also testified regarding the extended family of the Foster Parents, 

noting that the children had bonded to Foster Parents’ relatives and had nicknames for all 

of their grandparents. Additionally, Foster Mother testified that the family had recently 

adopted another child, a fourteen-month-old baby named Finley, to whom the children had 

become very attached. Foster Mother described Scarlet as behaving as a “mother hen” 

towards Finley and testified that the children considered Finley their baby sister. 

Regarding Mother, Ms. Cox and Foster Mother both indicated that the children rarely if 

ever ask about her, although Foster Mother acknowledged that Mother had sent Scarlet a 

birthday card. Ms. Cox testified that she had no concerns regarding the children in the

Foster Parents’ care and that she believed termination of Mother’s parental rights was in 

both children’s best interests. 

Mother also testified at trial. While Mother acknowledged her fifteen-year prison 

sentence, she maintained that she would be eligible for parole possibly in 2021 and 

expressed her desire to have a relationship with the children and to assume custody after

her release. Mother asserted that since her incarceration began, she had made several 

requests that she be able to have contact with the children, but that Ms. Cox essentially 

refused to accommodate her. Mother and Ms. Cox both testified that Ms. Cox had visited 

Mother twice since DCS opened its case; however, Mother maintained that at each visit 

Ms. Cox pressured Mother to surrender her rights and that both times Mother refused. Ms. 

Cox agreed that she visited Mother twice, and the record reflects that Mother was given 

the Criteria and Procedures for Termination at both visits and signed the Criteria both 

times.

Although Mother maintained at trial that she wished to regain custody of the 

children if released on parole, Mother admitted that she would likely have to live in a halfway house for a period of time after her release, which would make it difficult to provide 
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for the children. Importantly, Mother also admitted that she had not seen the children since 

2014, at which time Talis was approximately one year old. However, Mother blamed 

Father for her absence from the children’s lives and testified that Father kept the children 

from her and would move sporadically in order to keep Mother from seeing them. 

Ultimately, Mother’s testimony reflected that although she had not seen the children in 

several years by the time of trial, she still desired to have a relationship with them and did 

not believe that termination was in the children’s best interests. According to Mother, “a 

six-month attachment [to Foster Parents] would not override a mother’s love.” 

After the close of proof, the trial court ruled that DCS had proven both grounds for 

termination by clear and convincing evidence. The trial court also found, by clear and 

convincing evidence, that termination was in both children’s best interests. The trial court 

entered a written order on June 25, 2020, reflecting its ruling, and Mother filed a timely 

notice of appeal to this Court.

Issues

Mother’s sole issue on appeal is whether the trial court erred in concluding that DCS 

proved both of the alleged statutory grounds for termination by clear and convincing 

evidence.3

Standard of Review

Our Supreme Court has explained that:

A parent’s right to the care and custody of her child is among the oldest of 

the judicially recognized fundamental liberty interests protected by the Due 

Process Clauses of the federal and state constitutions. Troxel v.

Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L.Ed.2d 49 (2000); Stanley

v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L.Ed.2d 551 (1972); In re

Angela E., 303 S.W.3d 240, 250 (Tenn. 2010); In re Adoption of Female

Child, 896 S.W.2d 546, 547–48 (Tenn. 1995); Hawk v. Hawk, 855 S.W.2d

573, 578–79 (Tenn. 1993). But parental rights, although fundamental and 

constitutionally protected, are not absolute. In re Angela E., 303 S.W.3d at

250. “‘[T]he [S]tate as parens patriae has a special duty to protect minors....’ 

Tennessee law, thus, upholds the [S]tate’s authority as parens patriae when 

interference with parenting is necessary to prevent serious harm to a 

child.” Hawk, 855 S.W.2d at 580 (quoting In re Hamilton, 657 S.W.2d 425,

429 (Tenn. Ct. App. 1983)); see also Santosky v. Kramer, 455 U.S. 745, 747,

102 S. Ct. 1388, 71 L.Ed.2d 599 (1982); In re Angela E., 303 S.W.3d at 250.

 

3 We also review whether the trial court erred in concluding that termination was in the best interests 

of the children. See In re Carrington H., 483 S.W.3d 507, 525–26 (Tenn. 2016) (“[I]n an appeal from an 

order terminating parental rights the Court of Appeals must review the trial court’s findings as to each 

ground for termination and as to whether termination is in the child’s best interests, regardless of whether 

the parent challenges these findings on appeal.”) (footnote omitted). 
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In re Carrington H., 483 S.W.3d at 522–23. Tennessee Code Annotated section 36-1-113 

provides the various grounds for termination of parental rights. In re Jacobe M.J., 434 

S.W.3d 565, 568 (Tenn. Ct. App. 2013); see also Tenn. Code Ann. § 36-1-113(g). “A party 

seeking to terminate parental rights must prove both the existence of one of the statutory 

grounds for termination and that termination is in the child’s best interest.” Id. (citing 

Tenn. Code Ann. § 36-1-113(c)).

In light of the substantial interests at stake in termination proceedings, the 

heightened standard of clear and convincing evidence applies. In re Carrington H., 483 

S.W.3d at 522 (citing Santosky, 455 U.S. at 769). This heightened burden “minimizes the 

risk of erroneous governmental interference with fundamental parental rights[,]” and 

“enables the fact-finder to form a firm belief or conviction regarding the truth of the 

facts[.]” Id. (citing In re Bernard T., 319 S.W.3d 586, 596 (Tenn. 2010)). “The clear-andconvincing-evidence standard ensures that the facts are established as highly probable, 

rather than as simply more probable than not.” Id. (citing In re Audrey S., 182 S.W.3d 838, 

861 (Tenn. Ct. App. 2005)). Accordingly, the standard of review in termination of parental 

rights cases is as follows: 

An appellate court reviews a trial court’s findings of fact in 

termination proceedings using the standard of review in Tenn. R. App. P.

13(d). In re Bernard T., 319 S.W.3d at 596; In re Angela E., 303 S.W.3d at

246. Under Rule 13(d), appellate courts review factual findings de novo on 

the record and accord these findings a presumption of correctness unless the 

evidence preponderates otherwise. In re Bernard T., 319 S.W.3d at 596; In

re M.L.P., 281 S.W.3d 387, 393 (Tenn. 2009); In re Adoption of A.M.H., 215

S.W.3d 793, 809 (Tenn. 2007). In light of the heightened burden of proof in 

termination proceedings, however, the reviewing court must make its own 

determination as to whether the facts, either as found by the trial court or as 

supported by a preponderance of the evidence, amount to clear and 

convincing evidence of the elements necessary to terminate parental 

rights. In re Bernard T., 319 S.W.3d at 596–97. The trial court’s ruling that 

the evidence sufficiently supports termination of parental rights is a 

conclusion of law, which appellate courts review de novo with no 

presumption of correctness. In re M.L.P., 281 S.W.3d at 393 (quoting In re

Adoption of A.M.H., 215 S.W.3d at 810). Additionally, all other questions of 

law in parental termination appeals, as in other appeals, are reviewed de novo 

with no presumption of correctness. In re Angela E., 303 S.W.3d at 246.

In re Carrington H., 483 S.W.3d at 523–24.

Discussion 

I. Grounds for Termination 
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Here, the trial court found that DCS proved two grounds for termination by clear 

and convincing evidence: persistence of conditions and Mother’s ten-year prison sentence

while the children were under the age of eight years old. We address each ground in turn. 

A. Persistence of Conditions 

Tennessee Code Annotated section 36-1-113(g)(3)(A) provides that a person’s 

parental rights can be terminated when:

The child has been removed from the home or the physical or legal custody 

of a parent or guardian for a period of six (6) months by a court order entered 

at any stage of proceedings in which a petition has been filed in the juvenile 

court alleging that a child is a dependent and neglected child, and:

(i) The conditions that led to the child’s removal still persist, 

preventing the child’s safe return to the care of the parent or guardian, 

or other conditions exist that, in all reasonable probability, would 

cause the child to be subjected to further abuse or neglect, preventing 

the child’s safe return to the care of the parent or guardian;

(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 or 

guardian in the near future; and

(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.

The purpose of the persistence of conditions ground “is to prevent the child’s 

lingering in the uncertain status of foster child if a parent cannot within a reasonable time 

demonstrate an ability to provide a safe and caring environment for the child.” In re 

Navada N., 498 S.W.3d 579, 605 (Tenn. Ct. App. 2016). Consequently, “[t]he failure to 

remedy the conditions which led to the removal need not be willful.” Id. (citing In re T.S. 

and M.S., No. M1999-01286-COA-R3-CV, 2000 WL 964775, at *6 (Tenn. Ct. App. July 

13, 2000)). This ground for termination applies “only where the prior court order removing 

the child from the parent’s home was based on a judicial finding of dependency, neglect, 

or abuse.” In re Audrey S., 182 S.W.3d at 874; see also In re Veronica T., No. M2017-

00726-COA-R3-PT, 2018 WL 1410909, at *4 (Tenn. Ct. App. Mar. 21, 2018) (“An 

essential prerequisite to establishing persistence of conditions is evidence of a ‘prior court 

order removing the child from the parent’s home . . . based on a judicial finding of 

dependency, neglect or abuse.’” (quoting In re Aiden R., No. E2015-01799-COA-R3-PT,

2016 WL 3564313, at *9 (Tenn. Ct. App. June 23, 2016))). 
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 Importantly, “the child must not only have been adjudicated dependent and 

neglected, but he or she must also have been removed from the defendant parent’s home.” 

In re Veronica T., 2018 WL 1410909, at *4 (citing In re Mickia J., No. E2016-00046-

COA-R3-PT, 2016 WL 5210794, at *5 (Tenn. Ct. App. Sept. 19, 2016)); see also In re

Miracle M., No. W2017-00068-COA-R3-PT, 2017 WL 3836020, at *8 (Tenn. Ct. App.

Aug. 30, 2017) (“[T]he statutory ground of persistence of conditions is not applicable . . . 

as the record contains no evidence to suggest that the [c]hildren were residing in [f]ather’s

home at the time of their removal.”). To that point, we have also previously held that “the 

pertinent question in a termination proceeding based upon the statutory ground of 

persistence of conditions is whether [the parent] has continued to neglect the [c]hild” after 

the child has been removed from the parent’s custody. In re Emilie A.M., No. E2011-

02416-COA-R3-PT, 2012 WL 4053040, at *6 (Tenn. Ct. App. Sept. 17, 2012) (citing State 

v. C.H.K., 154 S.W.3d 586, 593 (Tenn. Ct. App. 2004)); see also In re Audrey S., 182 

S.W.3d at 873 (explaining that the purpose behind the persistence of conditions ground is 

to prevent children from languishing in foster care when a parent makes minimal efforts 

towards reunification). 

Here, the basis of DCS’s case as to persistence of conditions was that Mother 

remained incarcerated and as such could not provide for the children; indeed, the sole 

allegation in the petition for termination regarding this ground provides that “[Mother] 

continues to lack the proper housing and financial resources to care for the children because 

she remains incarcerated.” The trial court made the following pertinent findings regarding 

this ground: 

[Mother] is currently incarcerated in the West Tennessee State 

Penitentiary on a fifteen (15) year sentence for Voluntary Manslaughter, a 

Class C Felony. . . . The children have lingered in foster-care for over two 

(2) years. During those two years, [Mother] made no efforts to remedy the 

conditions that led to the children’s removal. Furthermore, there are other 

conditions that exist, in that [Mother] remains incarcerated under a fifteen 

(15) year sentence. She does not have suitable housing to raise her children, 

since the children cannot live in a prison cell. Further, other conditions exist 

in that [Mother] is not able to financially provide for the basic needs of her 

children. The Court found that other conditions exist in that [Mother] is in 

prison for having killed someone and that condition still exists (persists). 

Further, the Court found that just the possibility and not the probability of 

parole indicates that that the condition still exists. The Court found that the 

Department had proven this ground by clear and convincing evidence. 

It is clear that both DCS and the trial court treated Mother’s incarceration itself as 

the persistent condition preventing the children’s return to Mother’s custody. However, as 

we explained in State v. C.H.K., 154 S.W.3d at 592, the mere fact of a parent’sincarceration 

is not grounds for termination of parental rights except under particular circumstances. In 
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C.H.K., the child at issue was removed from the mother’s care after DCS discovered that 

the mother was leaving the child unattended in a motel room. Id. at 588. Soon after the 

child was removed, the mother pled guilty to various criminal charges and was 

incarcerated. Id. DCS filed a petition to terminate the mother’s parental rights, and the 

trial court found several grounds for termination, including persistence of conditions. Id.

at 589. As to that ground, the trial court found that the mother was unavailable to care for 

the child as a consequence of her incarceration and that this condition still existed by the 

time of trial. Id. at 592. On appeal, this Court considered whether Mother’s incarceration, 

standing alone, amounted to a persistent condition preventing the child’s return to mother’s 

custody, and concluded that it did not. Id. In so holding, we explained that “the legislature 

did not intend that the incarceration of a parent constitutes a condition which would cause 

the child to be subject to abuse or neglect except under specified circumstances.” Id. We 

noted that with regard to persistence of conditions, the pertinent question is whether the 

mother continued to neglect the child, and explained that because the mother had been 

incarcerated she had “not been presented with an opportunity to care for [the child] and it 

is not possible that she ha[d] demonstrated an intention to neglect him.” Id. We further 

explained:

Tenn. Code Ann. § 36-1-113(g)(3)(A) also provides that termination may be 

based upon the existence of “other conditions which in all 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.” However, 

it is our determination that the legislature did not intend that the incarceration 

of a parent constitutes a condition which would cause the child to be subject 

to abuse or neglect except under specified circumstances. We are compelled 

to reach this conclusion because Tenn. Code Ann. § 36-1-113(g)(6) allows 

initiation of parental termination if “[t]he parent has been confined in a 

correctional or detention facility of any type, by order of the court as a result 

of a criminal act, under a sentence of ten (10) or more years, and the child is 

under eight (8) years of age at the time the sentence is entered by the court.”

Id. Consequently, the C.H.K. court reversed the trial court’s finding that the 

mother’s parental rights should be terminated based on persistence of conditions. Id. We 

have since reiterated the holding of C.H.K. See In re Chandler M., No. M2013-02455-

COA-R3-PT, 2014 WL 3586499 (Tenn. Ct. App. July 21, 2014); In re Emilie A.M., 2012 

WL 4053040. 

The facts of In re Chandler M. are analogous to the present case. In that case, the 

father at issue was incarcerated when his child was removed from the mother’s custody, 

and father did not know at that time that he was the child’s father. Id. at *1. At some point 

after the child had been removed from his mother’s care, the father of the child pled guilty 

to several criminal offenses and received an effective sentence of twelve years in prison. 

Id. DCS eventually filed a petition to terminate father’s parental rights, alleging several 
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grounds for termination, including persistence of conditions. Id. at *2. The trial court 

terminated the father’s rights and he appealed, arguing that his parental rights could not be 

terminated based on this ground when he was never afforded the opportunity to parent the 

child. Id. at *5. We agreed with the father, explaining as follows: 

[T]he [c]hild was removed based upon a finding of dependency and 

neglect relative to [m]other. Father had not even been identified as a potential 

putative father at the time of removal or when the [c]hild was subsequently 

adjudicated as dependent and neglected. While it can be argued that the 

[c]hild was also removed because [f]ather was unavailable to care for the 

[c]hild due to his incarceration, the pertinent question in a termination 

proceeding based upon the statutory ground of persistence of conditions is 

whether [f]ather has continued to neglect the [c]hild. State v. C.H.K., 154

S.W.3d 586, 592 (Tenn. Ct. App. 2004). Father has not had an opportunity 

to properly care for the [c]hild or continue in his alleged neglect of the [c]hild 

because he has been incarcerated since he learned of his 

paternity. Id. Additionally, [f]ather’s incarceration, standing alone, cannot 

support this ground of termination as an “other condition” when the 

legislature has already provided for termination due to a parent’s 

incarceration pursuant to section 36-1-113(g)(6). Id. Accordingly, we 

conclude that the trial court erred in relying on section 36-1-113(g)(3) as a 

statutory ground for termination. We reverse the trial court’s finding that 

termination of [f]ather’s parental rights was appropriate based upon the 

alleged persistence of conditions that led to removal.

Id. 

In re Chandler M. is applicable here. The children were removed because of 

dependency and neglect arising from Father’s drug abuse. Mother’s whereabouts were 

unknown at the time of removal, and it is undisputed that the children had not been in her 

care or custody for approximately two years. Mother’s incarceration was not the basis of 

the children’s removal, nor is there any evidence that the children were living in Mother’s 

household at the time of removal. See In re Veronica T., 2018 WL 1410909, at *4 

(explaining that for persistence of conditions to apply, “the child must not only have been 

adjudicated dependent and neglected, but he or she must also have been removed from the 

defendant parent’s home”).

While it could be argued that the children were also removed because Mother was 

entirely unavailable to care for the Children and had in fact abandoned them, this was not 

what DCS pled in its termination petition, nor was this the basis of the trial court’s finding 

as to the persistence of conditions ground. Rather, the petition alleged simply that Mother 

could not care for the children as a consequence of her incarceration, and the trial court’s 

order reiterates this statement. As we have explained, however, Mother did not cause the 
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conditions underpinning the children’s removal to DCS custody, and “[Mother’s] 

incarceration, standing alone, cannot support this ground of termination as an ‘other 

condition’ when the legislature has already provided for termination due to a parent’s 

incarceration pursuant to section 36-1-113(g)(6).” Id.; Tenn. Code Ann. § 36-1-113(g)(3).

Ultimately, the salient issue here is whether Mother continued to neglect the children. In 

re Chandler M., 2014 WL 3586499, at *5 (citing State v. C.H.K., 154 S.W.3d at 592). 

However, there is no proof of Mother’s continued neglect after the children’s removal into 

DCS custody because she was incarcerated before that event occurred.4

Accordingly, we conclude that the trial court erred in relying on section 36-1-

113(g)(3) as a basis for termination of Mother’s parental rights, and we reverse the trial 

court’s finding that termination of Mother’s parental rights was appropriate based upon the 

alleged persistence of conditions that led to removal.

B. Ten-Year Sentence 

Turning to the second ground alleged for termination, Tennessee Code Annotated

section 36-1-113(g)(6) provides that grounds for termination exist when “[t]he parent has 

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

result of a criminal act, under a sentence of ten (10) or more years, and the child is under 

eight (8) years of age at the time the sentence is entered by the court[.]” Only two findings 

are necessary relative to this statutory ground: (1) that the parent has been confined to a 

correction or detention facility of any type, by order of the court as a result of a criminal 

act, under a sentence of ten or more years, and (2) that the child at issue was under eight 

years of age at the time the sentence was entered by the court. In re Jamazin H., No. 

W2013-01986-COA-R3-PT, 2014 WL 2442548, at *4 (Tenn. Ct. App. May 28, 2014) 

(citing In re E.M.P., No. E2006-00446-COA-R3-PT, 2006 WL 2191250, at *6 (Tenn. Ct. 

App. Aug. 3, 2006)). Establishing this ground for termination is not a “difficult task 

because the parent either is or is not serving a prison sentence of at least ten years, and the 

child either was or was not eight years old when the sentence was imposed.” Id. (quoting 

In re T.M.G., 283 S.W.3d 318, 325 n.4 (Tenn. Ct. App. 2008)). In this sense, “the 

 

4 This case should not be confused with cases in which a parent’s established pattern of recidivism 

is treated as a persistent condition, when the parent has had the opportunity to work towards reunification 

with the child after the child’s removal, but instead the parent is reincarcerated or continues to engage in 

criminal activity. See, e.g., In re Kambri P., No. M2019-01352-COA-R3-PT, 2020 WL 2991793 (Tenn. 

Ct. App. June 4, 2020) (both parents’ rights terminated for persistence of conditions when history of 

criminal activity and incarcerations rendered the parents consistently unable to provide a stable, suitable 

home for children); In re A.B., No. E2016-00504-COA-R3-PT, 2017 WL 111291, at *7 (Tenn. Ct. App. 

Jan. 11, 2017) (“The conditions leading to the removal of the [c]hildren are [m]other’s drug abuse and 

criminal activity. . . . Mother has [] incurred new legal charges. It is clear [m]other’s drug abuse and criminal 

activity continue.”); In re Jaylah W., 486 S.W.3d 537, 556 (Tenn. Ct. App. 2015) (affirming termination of 

mother’s parental rights when children were removed due to mother’s “pattern of drug and alcohol abuse, 

violent and threatening behavior, and criminal activity[,]” and those conditions persisted at the time of 

trial).
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legislature has established a ‘bright line’ ground for termination of parental rights” in 

enacting section 36-1-113(g)(6). In re Adoption of K.B.H., 206 S.W.3d 80, 85 (Tenn. Ct. 

App. 2006)).5

Mother does not dispute on appeal that DCS satisfied section 36-1-113(g)(6) by 

clear and convincing evidence. Mother was sentenced to fifteen years in prison on March 

12, 2018. At that time, the children were five and six years old, respectively. 

Consequently, the two elements of section 36-1-113(g)(6) are satisfied here, and we affirm 

the trial court’s decision that Mother’s parental rights should be terminated pursuant to this 

statutory ground. 

II. Best Interests 

In addition to proving at least one statutory ground for termination, a party seeking 

to terminate a parent’s rights must prove by clear and convincing evidence that termination 

is in the child’s best interests. Tenn. Code Ann. § 36-1-113(c). Indeed, “a finding of 

unfitness does not necessarily require that the parent’s rights be terminated.” In re Marr, 

194 S.W.3d 490, 498 (Tenn. Ct. App. 2005) (citing White v. Moody, 171 S.W.3d 187 

(Tenn. Ct. App. 2004)). Rather, our termination statutes recognize that “not all parental 

conduct is irredeemable[,]” and that “terminating an unfit parent’s parental rights is not 

always in the child’s best interests.” Id. As such, the focus of the best interests analysis is 

not the parent but rather the child. Id.; see also White, 171 S.W.3d at 194 (“[A] child’s 

best interest must be viewed from the child’s, rather than the parent’s, perspective.”).

Tennessee Code Annotated section 36-1-113(i) provides nine factors for analyzing 

best interests:

(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;

 

5

It is also well-established that a parent’s eligibility for parole does not affect whether section 36-

1-113(g)(6) is satisfied. See In re Jamazin H., 2014 WL 2442548, at *11 n.6 (“This ground for termination 

applies regardless of the possibility of early parole[.]”); In re Adoption of K.B.H., 206 S.W.3d at 85 (“At 

the time [section 36-1-113(g)(6)] was enacted, the legislature was certainly aware of parole and other means 

by which a prisoner could end up released from his or her incarceration prior to expiration of the full 

sentence, and did not include such circumstances in the language of the statute.”). 
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(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, controlled substances or controlled substance 

analogues 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.

This list is non-exhaustive. In re Marr, 194 S.W.3d at 499. “Ascertaining a child’s best 

interests does not call for a rote examination of each of Tenn. Code Ann. § 36-1-113(i)’s 

nine factors and then a determination of whether the sum of the factors tips in favor of or 

against the parent.” Id. “The relevancy and weight to be given each factor depends on the 

unique facts of each case.” Id. “Thus, depending upon the circumstances of a particular 

child and a particular parent, the consideration of one factor may very well dictate the 

outcome of the analysis.” Id. (citing In re Audrey S., 182 S.W.3d at 877).

The trial court in this case found that termination of Mother’s parental rights was in 

the best interests of both children. Having reviewed the record and applicable case law, 

we agree. Mother asserts that the trial court erred in its best interests analysis, arguing that 

the trial court failed to appropriately consider all nine of the statutory factors. In support, 

Mother points out that the trial court’s analysis focuses heavily on Mother’s incarceration 

and the fact that the children are currently in a stable, pre-adoptive home. Mother’s

argument is unavailing. The trial court’s order contains a detailed best interests analysis 

and reflects that it considered other factors aside from Mother’s incarceration and the 

children’s current placement. For instance, the trial court addressed the fact that Mother 

has essentially no relationship with either child and has not seen or spoken to the children 
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in several years. The trial court also pointed out, to Mother’s credit, that there has never 

been any allegation that the children have been abused.

Further, it is well-settled that the best interests analysis is highly fact sensitive and 

that depending upon the particular circumstances of case, one or more factors may be 

outcome determinative. In re Audrey S., 182 S.W.3d at 877. Under the particular 

circumstances of this case, we agree with the trial court that Mother’s lengthy prison 

sentence and the children’s placement in a stable, pre-adoptive home are the factors that

militate most heavily in favor of termination. See Tenn. Code Ann. § 36-1-113(i)(5) & (7). 

It is not uncommon for a parent’s lengthy prison sentence to be considered compelling in 

the best interests portion of a termination proceeding, because a long sentence necessarily

leads to the parent’s prolonged absence from the child’s every-day life. See, e.g., In re 

Dominique L.H., 393 S.W.3d 710, 718 (Tenn. Ct. App. 2012) (“In addition to the problems 

associated with the criminal activity itself, incarceration poses a further hurdle: the 

continued absence of a parent from the child’s life. . . . [A] lengthy delay in a child’s return 

to the custody of its biological parent is a strong indication that termination of parental 

rights is in the best interest of the child.”); In re C.A.M., No. W2008-02003-COA-R3-PT, 

2009 WL 3739447, at *7 (Tenn. Ct. App. Nov. 9, 2009) (despite undisputed evidence that 

incarcerated father at issue loved his child, the factors nevertheless weighed “heavily in 

favor of termination” because the father “has no home to offer [the child], [ ] will probably 

remain incarcerated for the foreseeable future, and his prospects for establishing such a 

home after he is released are uncertain at best”); In re M.H., No. M2005-00117-COA-R3-

PT, 2005 WL 3273073, at *13 (Tenn. Ct. App. Dec. 2, 2005) (“This court has frequently 

and for a long time recognized that, as a general proposition, a child’s best interest was 

served by termination of parental rights where, no matter the cause, there was no reasonable 

expectation the child could be reunited with a parent in the near future.”). Nor is it unusual

to give significant weight to the factors regarding a child’s current foster placement when 

the child is thriving. See, e.g., In re Haskel S., No. M2019-02256-COA-R3-PT, 2020 WL 

6780265, at *13 (Tenn. Ct. App. Nov. 18, 2020) (ultimately concluding that termination of 

father’s rights was in child’s best interest when child was in stable, pre-adoptive home and 

called foster parents “mom” and “dad”); In re M.E.T., No. W2016-00682-COA-R3-PT,

2016 WL 6962306, at *10 (Tenn. Ct. App. Nov. 29, 2016) (noting that the factor regarding 

the child’s current placement was “compelling” in that case because of the length of time 

the child had been with his foster family and his profound bond with them). 

Here, we agree with the trial court that Mother’s lengthy prison sentence and the

success of the children’s current placement militate heavily in favor of termination. See

Tenn. Code Ann. § 36-1-113(i)(5) & (7). We also agree with the trial court’s overall 

conclusion that Mother’s current situation, unfortunately, makes it impossible for Mother 
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to meaningfully adjust her circumstances, provide a safe and suitable home for the children, 

or support the children financially. See Tenn. Code Ann. § 36-1-113(i)(1), (7), (9).6

In addition to the foregoing factors, we also find it compelling that Mother had not 

seen the children for two years prior to DCS removing them from Father’s custody. See

id. § 36-1-113(i)(3) & (4). Simply put, the record is bereft of any actions on Mother’s part 

to be a parent to the children, or any indication that a relationship, much less a meaningful 

relationship, exists between them. The evidence at trial reflected that the children are 

thriving in the care of Foster Parents and wish to be adopted. The children refer to the 

Foster Parents as “Mom” and “Dad,” and consider Foster Parents’ adopted baby their 

younger sibling. Although Mother contended at trial that she loves the children and wishes 

to provide for them after her release from prison, Mother’s wishes are not a basis for 

determining the children’s best interests, and the record reflects that the children do not, 

sadly, reciprocate Mother’s feelings. See In re M.B., No. M2007-02755-COA-R3-PT, 

2008 WL 2229518, at *8 (Tenn. Ct. App. May 29, 2008) (“[O]nce a ground for termination 

has been established, [the parent’s] wishes are not the basis for determining [a child’s] best 

interest.”). Taken together with the fact that the children are bonded to their foster family 

and wish to be adopted, the lack of a meaningful relationship between Mother and the 

children weighs heavily in favor of termination in this case. See Tenn. Code Ann. § 36-1-

11(i)(3)–(5). 

Contrary to Mother’s assertions, the trial court made detailed findings in 

consideration of the statutory best interests factors. Upon our careful review of the record, 

the evidence does not preponderate against the relevant findings. We find, as did the trial 

court, the evidence to be clear and convincing that termination of Mother’s parental rights 

is in the children’s best interests. 

Conclusion 

The judgment of the Henderson County Chancery Court is reversed in part, and 

affirmed in part, resulting in our affirming the termination of Mother’s parental rights. This 

cause is remanded to the trial court for collections of costs below. Costs on appeal are

assessed against Mother, Diane W., for which execution may issue if necessary. 

KRISTI M. DAVIS, JUDGE 

 

6 We do note, however, that the record shows Mother has been working during her incarceration

and on a few occasions has sent very small amounts of money for the children. We commend Mother for 

this effort.