IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 4, 2017

IN RE KEN’BRIA B.

Appeal from the Juvenile Court for Shelby County

No. CC1917 Harold W. Horne, Special Judge

No. W2017-01441-COA-R3-PT

This appeal concerns termination of a father’s parental rights. The Tennessee 

Department of Children’s Services (“DCS”) filed a petition in the Juvenile Court for 

Shelby County (“the Juvenile Court”) seeking to terminate the parental rights of Kenneth 

F. (“Father”) to his minor child Ken’bria B. (“the Child”). After a trial, the Juvenile 

Court entered an order terminating Father’s parental rights to the Child. Father timely 

appealed to this Court. On appeal, Father argues, among other things, that he has an 

upcoming opportunity for parole and, therefore, the ground of incarceration for ten years 

or longer when the child is less than eight years of age should not apply. We affirm the 

judgment of the Juvenile Court.

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

Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which ANDY D.

BENNETT and KENNY W. ARMSTRONG, JJ., joined.

Alexandra Tallent, Memphis, Tennessee, for the appellant, Kenneth F.

Herbert H. Slatery, III, Attorney General and Reporter, and Michael C. Polovich, 

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

Services.

01/04/2018
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OPINION

Background

The Child was born in June 2014. Although Father was not listed on the Child’s 

birth certificate, the Child’s mother identified him as the father of the Child.1 Father 

never filed a petition to establish paternity. In November 2014, the Child was placed in 

DCS’s custody. In March 2015, the Child was adjudicated dependent and neglected. 

In December 2013, Father was incarcerated. In February 2016, Father was 

sentenced to fifteen years in prison for, among other offenses, aggravated robbery. In 

February 2016, Father signed the Criteria and Procedures for Termination of Parental 

Rights. Father participated in a permanency plan, as well. On December 20, 2016, 

Father had a supervised visit with the Child. Father’s visitation rights were suspended 

thereafter when drugs were found in his shared prison cell. Father denied owning the 

drugs. Father suggested that either his wife, Keitra F., or the Child’s grandmother 

assume custody of the Child. Neither option ever materialized. Father’s support for the 

Child has consisted of Christmas presents, cards, and assisting with a birthday party. The 

Child currently lives in foster care in the home of Kizzy J. (“Foster Mother”). The Child 

lives there with her two siblings, who already have been adopted by Foster Mother. In 

December 2016, DCS filed a petition in the Juvenile Court seeking to terminate Father’s 

parental rights to the Child. This case was tried in June 2017. 

Beverly Williams, DCS caseworker on the Child’s case between November 2015 

and September 2016, testified as follows:

Q. Now, Ms. Williams, did you ever try to set up visits between the child 

and [Father] at 201?2

A. Yes, I did.

Q. Okay. And what happened with that?

A. At the time that we tried to set that, he was -- I think he told me he was 

put in a hole where he couldn’t have visits because of infractions.

Q. Okay. Did he tell you why or specifically what the infractions were?

A. No, he did not.

Q. Okay. Did you ever receive any notification that he had gotten out of 

the hole and was able to have visits again?

A. No, I did not.

Q. And did you provide your contact information to [Father]? 

 

1

The Child’s mother surrendered her parental rights and is not a party on appeal.

2

201 refers to Shelby County Correctional Center at 201 Poplar Avenue.
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A. Yes, I did.

Q. Okay. And did your contact information change at all during the period 

of time that you had the case between November 2015 and September 

2016?

A. No.

Father testified to his interactions with DCS and his participation in the case as 

follows, in part:

Q. And you said you were first incarcerated in 2014. Would that be 

correct?

A. It might have been ‘13.

Q. Did the Department ever visit you at 201?

A. Yes, ma’am.

Q. Do you remember who visited you?

A. Yes, ma’am.

Q. Who was the person?

A. Ms. Flowers and Ms. Betty is her name.

Q. Do you remember the first time they visited you?

A. Yes, ma’am.

Q. When was that?

A. That was when I got like a year after I had already been incarcerated, I 

would say around about in January, around about 2015.

Q. Did you ever receive any mail at 201 from DCS about court dates or 

court hearings? 

A. No, ma’am.

Q. Did you ever receive any kind of notices saying you had a right to 

counsel during these proceedings?

A. No, ma’am.

Q. Were you ever served any orders from the Court giving you notice or 

continuances telling you court dates?

A. I was served one notice saying that I had to be transported to Juvenile 

Court for a hearing, but I was never transported down there.

Q. Did you have a counselor at 201?

A. Yes, ma’am.

Q. Okay. Were they able to assist you with any of this?

A. They was, but it wasn’t no assistance.

Q. Did you have regular access to a phone at 201?

A. Yes, ma’am.

Q. What about mail?

A. Yes, ma’am.
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Q. And when they -- I believe it was Ms. Williams when she testified a few 

minutes ago that she had you sign the criteria for the termination of your 

rights. Did you understand what you were signing?

A. Yes, ma’am. She talked to him and let me know everything that was 

going on because I was at work, and then by this being my first time ever 

going through this situation, I didn’t know what was going on or how to 

deal with this situation at the time. But she had told -- she had read me my 

rights and then, you know, let me how what was all going on.

Q. Did you make it -- did they ask you to surrender at that time?

A. They asked me -- they asked me, but I turned it down.

Q. Did you request visits with your child?

A. Yes, ma’am. The first time I found out about the issue -- I didn’t know 

my daughter was in custody in the whole -- she had been in custody for 

about six or seven months, I didn’t even know period, what was going on. 

Then I just noticed that my daughter wasn’t coming to visit no more. My 

mother and my daughter, my sister and them go get my baby from my baby 

mama every weekend and bring her up here to see me. I noticed that the

visits weren’t coming no more. So, I was like wondering what was going 

on. My momma didn’t know what was going on because Alexis, she lives 

in her own house. She do her own thing, so --

Q. Alexis is the mother?

A. Yes, ma’am.

Q. Okay. You heard them testify that you couldn’t get visits at 201 because 

you were in the hole; is that correct?

A. I didn’t do all my time in the hole. I just had got placed in the hole for a 

couple of days, but I had access to visits all the time and she told me about 

the visit. I asked her about the visits first time that I seen her. She had told 

me that they couldn’t deal with me, period, until the blood test came back. 

So that’s what made me so -- that big of a gap in between them saying my

mother wasn’t present. I wasn’t present. It was just that big gap. We was 

waiting on the blood test.

Q. Did you ever receive a copy while you were at 201 of the results?

A. No, ma’am.

Q. Have you ever received a copy of it?

A. No, ma’am. I just got a copy, like, last month.

***

Q. Okay. And during this time were you requesting visits with your child?

A. Yes, ma’am.

Q. And how did you try to support your child from jail?
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A. Anyway that I can. Anything that I could. I tried to contact, getting in 

touch with her. So I can just have -- just hear her voice over the phone or 

whatever I could do, whatever I could do for my daughter, I would do it. I 

was doing it.

Q. What about financially? How did you try to support her? Did you give 

her gifts or -

A. Yes, ma’am. Clothes, gifts, anything that I could give, I give.

Q. How did you send those?

A. Through the case worker. My wife had to call -- to get in contact with 

the case workers and they would get it from her and then I guess they 

would give it to her later.

In July 2017, the Juvenile Court entered its final order terminating Father’s 

parental rights to the Child. The Juvenile Court found and held by clear and convincing 

evidence as follows, in pertinent part:

7. Pursuant to T.C.A. § 36-1-113(g)(6), Respondent [Father] has been 

confined to a correctional facility, as the result of a criminal act, under a 

sentence of ten (10) or more years, and the child was under eight (8) years 

of age at the time the sentenced was entered. [Father] has been sentenced 

to two fifteen-year sentences; one six-year sentence; and one sentence of 

eleven months and twenty nine days by order of the Shelby County 

Criminal Court for the criminal acts of aggravated robbery (two counts), 

felon in possession of a firearm, and evading arrest. The judgments were 

entered by Shelby County Criminal Court on February 23, 2016, and [the 

Child] was under eight (8) years of age at the time the sentences were 

entered. Prior to the entry of the judgments, Family Service Worker 

Beverly Williams that she met with [Father] on February 9, 2016, and he 

signed the Criteria and Procedures for Termination of Parental Rights. (See 

Exhibit 4, Criminal Record for [Father]; and Exhibit 6, Criteria and 

Procedures for Termination of Parental Rights.)

8. Pursuant to T.C.A. § 36-1-113(g)(9)(A) et seq., as defined in T.C.A. § 

36-1-117, Respondent [Father] is not the legal father of [the Child] and did 

not voluntarily file a petition to establish paternity prior to the filing of the 

petition to terminate parental rights. Although [Father] has completed 

DNA testing that shows he is the biological father of the child, he has not 

established paternity of the child and is therefore a putative father pursuant 

to the wording of the amended statute, which became effective March 23, 

2016. (See Exhibit 5, DNA Test Results.)

9. Pursuant to T.C.A. § 36-1-113(g)(9)(A)(iii), Respondent [Father] has 

failed, without good cause or excuse, to seek reasonable visitation with the 
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child. Testimony presented revealed that [Father] has seen the child one 

time since she entered foster care in November 2014, and that visit took 

place in December 2016 at the Hardeman County Correctional Facility. 

[Father’s] visitation was suspended after that visit because contraband in 

the form of drugs was found in his cell. [Father] attributed the presence of 

the contraband to his cellmate. Prior to December 2016, former Family 

Service Worker Beverly Williams testified that she visited [Father] in early 

2016 at the Shelby County Correctional Center at 201 Poplar Avenue 

(popularly known as “201” or “201 Poplar”), and [Father] informed her that 

could not visit with [the Child] because he was in “the hole.” In contrast, 

[Father] stated he was only in “the hole” for a short period of time while at 

201 Poplar, and nobody at the Department took affirmative steps to set up 

visitation between him and [the Child] once he was out of the “hole.” 

[Father] also stated that he has regular access to the telephone and mail 

services while incarcerated. The Court finds that [Father] had an obligation 

to seek out and establish visitation, but he took no steps to do so despite 

having the ability to make telephone calls and send letters to the 

Department. 

10. Pursuant to T.C.A. § 36-1-113(g)(9)(A)(iv), Respondent [Father] has 

failed to manifest an ability and willingness to assume legal and physical 

custody of the minor child. [Father] and the child have no bond; and it 

would be harmful to the child to remove the child from the current 

placement and place the child with [Father]. The Court finds that [Father]

has shown “some” willingness, he has no ability to take custody of the child 

at this time due to his incarceration. [The Child] has established a strong 

bond with her foster mother, foster siblings, and birth siblings. The Court 

finds that [Father] simply has no ability to seek custody of the child at this 

time due to his incarceration. Although he wishes to gain custody of the 

child at some point in the future, he will likely not be in a position to take 

custody of her anytime in the near future.

11. Pursuant to T.C.A. § 36-1-113(g)(9)(A)(v), placing custody of the child 

in Respondent [Father’s] legal and physical custody would pose a risk of 

substantial harm to the physical or psychological welfare of the child. 

[Father] and the child have had minimal contact, and she is well-bonded to 

the foster mother, her two foster siblings, and her two birth siblings. 

[Foster Mother] testified that [the Child] is doing well in her home, and she 

wishes to adopt the child if she becomes available for adoption. [Foster 

Mother] has already adopted [the Child’s] birth siblings. Youth Villages 

foster care counselor Monica Bentley testified that she has been involved in 

the case on and off for some time, and she believed a change in custody at 
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this juncture would be traumatizing to [the Child] due to the length of time 

she has been in her foster home.

12. Pursuant to T.C.A. § 36-1-113(g)(9)(A)(vi), Respondent [Father] has 

failed to file a petition to establish paternity of the child within thirty (30) 

days after notice of alleged paternity by the child’s mother, or as required in 

T.C.A. § 36-2-318(j), or after making a claim of paternity pursuant to 

T.C.A. § 36-1-117(c)(3). [Father] was aware of his alleged paternity of [the 

Child] before the Department gained custody of the child in November 

2014, and he failed to take any steps to file a petition to establish paternity. 

[Father] had a legal obligation to establish this legal relationship between 

himself and his child.

***

14. Specifically, the Court makes the following findings of fact that 

termination is in the child’s best interest in regard to the father [Father]

under the following factors set out in the statute:

a. Pursuant to T.C.A. § 36-1-113(i)(1), [Father] has not made an adjustment 

of circumstance, conduct, or condition as to make it safe and in the child’s 

best interest to be in his home. [Father] has been incarcerated since 

December 2013, and although he testified that he is set for parole in 

January 2018, the appeal of his two fifteen-year sentences for aggravated 

burglary may not be resolved for three to six months. It is unclear when or 

if [Father] will be in a position to take custody of the child in the future.

b. Pursuant to T.C.A. § 36-1-113(i)(2), [Father] has had little contact with 

the Department and has failed to effect a lasting adjustment after reasonable 

efforts by the Department to the extent that lasting adjustment does not 

reasonably appear possible. The Department set up DNA testing, attempted 

to schedule visitation while [Father] was at the Shelby County Correctional 

Center, and started visitation with [Father] at the Hardeman County 

Correctional Facility prior to their suspension.

c. Pursuant to T.C.A. § 36-1-113(i)(3), [Father] has had infrequent 

visitation or other contact with the child since she was born. [Father] was 

able to visit with the child in December 2016, but the visitation ceased after 

contraband was found in his cell. [Father] attributed the contraband 

(specifically drugs) to his cellmate, but his visitation rights were suspended 

nonetheless.

d. Pursuant to T.C.A. § 36-1-113(i)(4), a meaningful relationship has not 

been established between [Father] and the child. [Father] has had minimal 

contact with the child and a bond has not formed as a result.
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e. Pursuant to T.C.A. § 36-1-113(i)(5), a change of caretakers and physical 

environment would have a negative effect on the child’s emotional, 

psychological, and medical condition. The child has bonded strongly to the 

foster mother and a change in placement would adversely affect her. [The 

Child] has only seen [Father] one time since she entered foster care in 

November 2014, and she is well-bonded to [Foster Mother] as well as her 

two foster siblings and two birth siblings (now adopted by [Foster 

Mother]).

f. Pursuant to T.C.A. § 36-1-113(i)(6), the Court finds no proof that 

[Father] or someone living with him has shown brutality, physical, sexual, 

emotional or psychological abuse, or neglect toward the child, or another 

child or adult in the family or household.

g. Pursuant to T.C.A. § 36-1-113(i)(7), the Court finds that the physical 

environment of [Father’s] home is unhealthy and unsafe, there is criminal 

activity in the home, or there is such use of alcohol, controlled substances 

or controlled substance analogues as may render the parent consistently 

unable to care for the child in a safe and stable manner. [Father] is 

currently incarcerated due to criminal activity, and discussions regarding 

unification of the child with [Father] cannot be contemplated until he is 

released. His wife, Keitra [F.], testified that she has a criminal history 

involving charges of burglary and theft.

h. Pursuant to T.C.A. § 36-1-113(i)(8), the Court finds that no proof that 

[Father’s] mental and emotional status would be detrimental to the child or 

prevent him from effectively providing safe and stable care and supervision 

for the child.

i. Pursuant to T.C.A. § 36-1-113(i)(9), although [Father] has provided some 

in-kind support for the child, he has not paid child support for the child 

consistent with the child support guidelines.

Father timely appealed to this Court.

Discussion

Although not stated exactly as such, Father raises the following issues on appeal: 

1) whether the Juvenile Court erred in finding the ground of incarceration on a sentence 

of ten or more years when the Child is under the age of eight years old at the time of 

sentencing; 2) whether the Juvenile Court erred in finding that the putative father grounds 

apply to Father; 3) whether the Juvenile Court erred in finding the ground of failure to 

seek reasonable visitation with the Child; 4) whether the Juvenile Court erred in finding 

the ground of failure to manifest an ability and willingness to assume legal and physical 

custody of the Child; 5) whether the Juvenile Court erred in finding the ground of risk of 
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substantial harm to the physical or psychological welfare of the Child should she be 

placed in Father’s custody; 6) whether the Juvenile Court erred in finding the ground of 

failure to legitimate after 30 days’ notice; and, 7) whether the Juvenile Court erred in 

finding that it is in the Child’s best interest to terminate Father’s parental rights.

As our Supreme Court has instructed regarding the standard of review in parental 

termination cases:

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.3 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. “When the State initiates a parental rights termination 

proceeding, it seeks not merely to infringe that fundamental liberty interest, 

but to end it.” Santosky, 455 U.S. at 759, 102 S.Ct. 1388. “Few 

consequences of judicial action are so grave as the severance of natural 

family ties.” Id. at 787, 102 S.Ct. 1388; see also M.L.B. v. S.L.J., 519 U.S. 

102, 119, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996). The parental rights at 

stake are “far more precious than any property right.” Santosky, 455 U.S. 

at 758-59, 102 S.Ct. 1388. Termination of parental rights has the legal 

effect of reducing the parent to the role of a complete stranger and of 

“severing forever all legal rights and obligations of the parent or guardian 

of the child.” Tenn. Code Ann. § 36-1-113(I)(1); see also Santosky, 455 

U.S. at 759, 102 S.Ct. 1388 (recognizing that a decision terminating 

parental rights is “final and irrevocable”). In light of the interests and 

 

3 U.S. Const. amend. XIV § 1 (“[N]or shall any State deprive any person of life, liberty, or property, 

without due process of law . . . .”). Similarly, article 1, section 8 of the Tennessee Constitution states 

“[t]hat no man shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or

outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the 

judgment of his peers or the law of the land.”
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consequences at stake, parents are constitutionally entitled to 

“fundamentally fair procedures” in termination proceedings. Santosky, 455 

U.S. at 754, 102 S.Ct. 1388; see also Lassiter v. Dep’t of Soc. Servs. of 

Durham Cnty., N.C., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 

(1981) (discussing the due process right of parents to fundamentally fair 

procedures).

Among the constitutionally mandated “fundamentally fair 

procedures” is a heightened standard of proof – clear and convincing 

evidence. Santosky, 455 U.S. at 769, 102 S.Ct. 1388. This standard 

minimizes the risk of unnecessary or erroneous governmental interference 

with fundamental parental rights. Id.; In re Bernard T., 319 S.W.3d 586, 

596 (Tenn. 2010). “Clear and convincing evidence enables the fact-finder 

to form a firm belief or conviction regarding the truth of the facts, and 

eliminates any serious or substantial doubt about the correctness of these 

factual findings.” In re Bernard T., 319 S.W.3d at 596 (citations omitted). 

The clear-and-convincing-evidence standard ensures that the facts are 

established as highly probable, rather than as simply more probable than 

not. In re Audrey S., 182 S.W.3d 838, 861 (Tenn. Ct. App. 2005); In re 

M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005).

Tennessee statutes governing parental termination proceedings 

incorporate this constitutionally mandated standard of proof. Tennessee 

Code Annotated section 36-1-113(c) provides:

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.

This statute requires the State to establish by clear and convincing proof 

that at least one of the enumerated statutory grounds4for termination exists 

and that termination is in the child’s best interests. In re Angela E., 303 

S.W.3d at 250; In re F.R.R., III, 193 S.W.3d 528, 530 (Tenn. 2006); In re 

Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). “The best interests analysis is 

 

4

Tenn. Code Ann. § 36-1-113(g)(1)-(13).
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separate from and subsequent to the determination that there is clear and 

convincing evidence of grounds for termination.” In re Angela E., 303 

S.W.3d at 254. Although several factors relevant to the best interests 

analysis are statutorily enumerated,5the list is illustrative, not exclusive. 

The parties are free to offer proof of other relevant factors. In re Audrey S., 

182 S.W.3d at 878. The trial court must then determine whether the 

combined weight of the facts “amount[s] to clear and convincing evidence 

that termination is in the child’s best interest.” In re Kaliyah S., 455 

S.W.3d 533, 555 (Tenn. 2015). These requirements ensure that each parent 

receives the constitutionally required “individualized determination that a 

parent is either unfit or will cause substantial harm to his or her child before 

the fundamental right to the care and custody of the child can be taken 

away.” In re Swanson, 2 S.W.3d 180, 188 (Tenn. 1999).

Furthermore, other statutes impose certain requirements upon trial 

courts hearing termination petitions. A trial court must “ensure that the 

hearing on the petition takes place within six (6) months of the date that the 

petition is filed, unless the court determines an extension is in the best 

interests of the child.” Tenn. Code Ann. § 36-1-113(k). A trial court must 

“enter an order that makes specific findings of fact and conclusions of law 

within thirty (30) days of the conclusion of the hearing.” Id. This portion 

of the statute requires a trial court to make “findings of fact and conclusions 

of law as to whether clear and convincing evidence establishes the 

existence of each of the grounds asserted for terminating [parental] rights.” 

In re Angela E., 303 S.W.3d at 255. “Should the trial court conclude that 

clear and convincing evidence of ground(s) for termination does exist, then 

the trial court must also make a written finding whether clear and 

convincing evidence establishes that termination of [parental] rights is in 

the [child’s] best interests.” Id. If the trial court’s best interests analysis “is 

based on additional factual findings besides the ones made in conjunction 

with the grounds for termination, the trial court must also include these 

findings in the written order.” Id. Appellate courts “may not conduct de 

novo review of the termination decision in the absence of such findings.” 

Id. (citing Adoption Place, Inc. v. Doe, 273 S.W.3d 142, 151 & n.15 (Tenn. 

Ct. App. 2007)). 

B. Standards of Appellate Review

 

5

Tenn. Code Ann. § 36-1-113(i).
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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 507, 521-24 (Tenn. 2016) (footnotes in original but 

renumbered). 

Clear and convincing evidence supporting any single ground will justify a 

termination order. E.g., In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Our Supreme 

Court, however, has instructed “that in 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.” In re Carrington H., 483 

S.W.3d at 525-26 (footnote omitted). As such, we review each of the grounds for 

termination.

Tenn. Code Ann. § 36-1-113(g)(6) (2017) provides as a ground for termination of 

parental rights the following: “The 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.” Tenn. Code Ann. § 36-1-113(g)(9)(A)(iii)-(vi), part of 

the so-called putative father grounds, provides: 
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The parental rights of any person who, at the time of the filing of a petition 

to terminate the parental rights of such person, or if no such petition is filed, 

at the time of the filing of a petition to adopt a child, is the putative father 

of the child may also be terminated based upon any one (1) or more of the 

following additional grounds:

***

(iii) The person has failed to seek reasonable visitation with the child, and if 

visitation has been granted, has failed to visit altogether, or has engaged in 

only token visitation, as defined in § 36-1-102;

(iv) The person has failed to manifest an ability and willingness to assume 

legal and physical custody of the child;

(v) Placing custody of the child in the person’s legal and physical custody 

would pose a risk of substantial harm to the physical or psychological 

welfare of the child; or

(vi) The person has failed to file a petition to establish paternity of the child 

within thirty (30) days after notice of alleged paternity, or as required in § 

36-2-318(j), or after making a claim of paternity pursuant to § 36-1-

117(c)(3);

Tenn. Code Ann. § 36-1-113(g)(9)(A)(iii)-(vi) (2017).

We first address whether the Juvenile Court erred in finding the ground of 

incarceration on a sentence of ten or more years when the Child is under the age of eight 

years old at the time of sentencing. Father testified that he has appealed his convictions 

and that he has an upcoming opportunity for parole in January 2018. This Court, 

however, has stated previously that courts “need not look beyond the judgment of 

conviction and the sentence imposed by the criminal court in order to determine whether 

this ground for termination applies.” In re Audrey S., 182 S.W.3d 838, 876 (Tenn. Ct.

App. 2005). We also have stated: “[T]he possibility of early parole is not a sufficient 

basis to negate this statutorily-defined ground.” In re Jaceton B., No. M2014-01580-

COA-R3-PT, 2015 WL 1517779, at *3 (Tenn. Ct. App. March 30, 2015), no appl. perm. 

appeal filed. In this case, certified copies of Father’s convictions were entered into the 

record. It is undisputed that Father received two fifteen-year sentences for aggravated 

robbery. The Child was under eight years of age at the time of sentencing. Therefore, 

the necessary elements for this ground have been established conclusively. We find, as 

did the Juvenile Court, that the ground of incarceration on a sentence of ten or more years 
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when the Child is under the age of eight years old at the time of sentencing was proven 

by clear and convincing evidence.

We next address whether the Juvenile Court erred in finding that the putative 

father grounds apply to Father. A putative father is defined by statute as follows: “ 

‘Putative father’ means a biological or alleged biological father of a child who, at the 

time of the filing of a petition to terminate the parental rights of such person or, if no such 

petition is filed, at the time of the filing of a petition to adopt a child, meets at least one 

(1) of the criteria set out in § 36-1-117(c) and is not a legal parent.” Tenn. Code Ann. § 

36-1-102(43) (2017). Tenn. Code Ann. § 36-1-117(c) provides as relevant:

(c) The parental rights of the putative father of a child who has not filed a 

petition to establish paternity of the child or who has not established 

paternity of the child who is the subject of an adoption proceeding and who 

meets any of the following criteria shall be terminated by surrender, 

parental consent, termination of parental rights pursuant to § 36-1-113, or 

by waiver of interest, before the court may enter an order of adoption 

concerning that child:

***

(2) The biological father has been specifically identified to the petitioners 

or their attorney, or to the department, the licensed child-placing agency, or 

the licensed clinical social worker involved in the care, placement, 

supervision, or study of the child as the child’s father by the child’s 

biological mother in a sworn, written statement or by other information that 

the court determines to be credible and reliable;

(3) The biological father has claimed to the child’s biological mother, or to 

the petitioners or their attorney, or to the department, a licensed childplacing agency, or a licensed clinical social worker who or that is involved 

in the care, placement, supervision, or study of the child that the biological 

father believes that the biological father is the father of the child; provided, 

that if the biological father has previously notified the department of the 

biological father’s claim to paternity of the child pursuant to the putative 

father registry, § 36-2-318(e)(3), the biological father shall be subject to all 

the requirements for waiver of notice provisions of § 36-2-318(f)(2) and to 

all requirements for filing a paternity petition;

Tenn. Code Ann. § 36-1-117(c)(2017).
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Father argues that “[Father] never signed the agreement page of the permanency 

plan . . .” and that therefore “[Father] cannot be held accountable for failure to legitimate 

his child when he had no notice of the permanency plan requirements.” Father argues 

further that DCS should have presented Father with a voluntary acknowledgement of 

paternity to sign and that its failure to do so means it failed to exercise reasonable efforts. 

However, DCS generally is not required to prove reasonable efforts as a precondition for 

the termination of parental rights under most grounds for termination. In re E.C., No. 

E2016-02582-COA-R3-PT, 2017 WL 2438574, at *8 (Tenn. Ct. App. June 6, 2017), no 

appl. perm. appeal filed. (citing In re Kaliyah S., 455 S.W.3d 533, 555 (Tenn. 2015)). As 

relevant to this issue, the Juvenile Court found:

The biological mother named [Father] as the father of the child. The 

biological mother provided no other credible and reliable information 

concerning the father’s identity pursuant to T.C.A. § 36-1-117(c)(2). The 

putative father registry was consulted and revealed no claims to paternity of 

the child; and no one else has claimed to be the father or to know the father.

***

Respondent [Father] is not the legal father of [the Child] and did not 

voluntarily file a petition to establish paternity prior to the filing of the 

petition to terminate parental rights. Although [Father] has completed 

DNA testing that shows he is the biological father of the child, he has not 

established paternity of the child and is therefore a putative father pursuant 

to the wording of the amended statute . . . .

The evidence does not preponderate against these findings made by the Juvenile 

Court. We find, as did the Juvenile Court, that Father is a putative rather than legal 

father, and that the putative father grounds apply to Father.

We now address whether the Juvenile Court erred in finding the ground of failure 

to seek reasonable visitation with the Child. The record reflects that Father had only one 

DCS-supervised visit with the Child. Father testified to visiting perhaps twice with the 

Child before she entered DCS custody. The record establishes that although Father had 

means of communication with DCS while incarcerated, he nevertheless did not pursue 

these lines of communications to garner more visitation time with the Child. Regardless 

of how long he was in “the Hole,” Father failed to take affirmative steps to visit with the 

Child. We find, as did the Juvenile Court, that the ground of failure to seek reasonable 

visitation with the Child was proven by clear and convincing evidence.
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The next issue raised is whether the Juvenile Court erred in finding the ground of 

failure to manifest an ability and willingness to assume legal and physical custody of the 

Child. We note that in his testimony, Father stated many positive things about his 

willingness to be a father to the Child. We believe, however, that manifesting an ability 

and willingness to assume legal and physical custody of a child must amount to more 

than mere words. Father neither has been proactive in working with DCS, nor has Father 

cultivated a genuine relationship with the Child. Father instead has occasionally given 

the Child various minor gifts and engaged in highly limited visitation. Even considering 

the limitations placed upon Father while he was incarcerated, we find he has not taken 

actions sufficient to manifest an ability and willingness to assume legal and physical 

custody of the Child. We find, as did the Juvenile Court, that the ground of failure to 

manifest an ability and willingness to assume legal and physical custody of the Child was 

proven by clear and convincing evidence.

We next address whether the Juvenile Court erred in finding the ground of risk of 

substantial harm to the physical or psychological welfare of the Child should she be 

placed in Father’s custody. Father argues that DCS failed to prove any real hazard or 

danger to the Child should she be placed in Father’s custody. We are cautious on this 

ground not to equate Father’s incarcerated status directly with the threat of substantial 

harm. Indeed, this Court has explained: “We have never held that a parent’s mere status 

as an inmate clearly and convincingly establishes that placing the child in the parent’s 

legal and physical custody would pose a risk of substantial harm to the physical or 

psychological welfare of the child.” In re E.C., 2017 WL 2438574, at *9. In the present 

case, however, the Juvenile Court relied upon more than Father’s incarceration. 

Testimony in the record establishes the strong bond between the Child and her foster 

family. Father does not dispute this. Placing the Child with Father would, therefore,

mean severing a strong bond between the Child and her foster family by placing the 

Child with someone, Father, she barely has met. We find, as did the Juvenile Court, that 

the ground of risk of substantial harm to the psychological welfare of the Child should 

she be placed in Father’s custody was proven by clear and convincing evidence.

The last issue as to grounds is whether the Juvenile Court erred in finding the 

ground of failure to legitimate after 30 days’ notice. Father concedes that he never filed a 

petition to legitimate the Child. Father’s only argument as to this issue is that he was 

incarcerated and that he was unsure how to initiate proceedings. We find this argument 

unavailing. Just as incarceration is not, by itself, a basis for terminating parental rights, 

incarceration is not a legitimate excuse for all manner of parental neglect of 

responsibilities. An incarcerated parent, although undeniably facing hardships in jail, 

may still do some things including making at least some attempt to legitimate his child. 

We find, as did the Juvenile Court, that the ground of failure to legitimate after 30 days’ 

notice was proven by clear and convincing evidence.
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The final issue we address is whether the Juvenile Court erred in finding that it is 

in the Child’s best interest to terminate Father’s parental rights. Tenn. Code Ann. § 36-1-

113(i) provides:

(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 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, 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
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(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.

Tenn. Code Ann. § 36-1-113(i) (2017).

The Juvenile Court’s detailed findings, analyzing each statutory best interest 

factor, are quoted above. The evidence does not preponderate against the Juvenile 

Court’s findings relative to this issue. A particularly weighty factor in this case is (5), 

pertaining to the likely effect of a change in caretakers. The Child is in a stable, bonded 

family unit, and deserves permanence moving forward. We find by clear and convincing 

evidence, as did the Juvenile Court, that termination of Father’s parental rights is in the 

Child’s best interest. The judgment of the Juvenile Court is affirmed in its entirety.

Conclusion

The judgment of the Juvenile Court is affirmed, and this cause is remanded to the 

Juvenile Court for collection of the costs below. The costs on appeal are assessed against 

the Appellant, Kenneth F., and his surety, if any.

____________________________________

D. MICHAEL SWINEY, CHIEF JUDGE