### IN THE CO URT OF APPEALS OF TE NNE SS EE AT NASHVILL E Decem be r 1, 2 00 9 S es si on



### STATE OF TE NNE SS EE, DE PAR TMEN T O F C HILDRE N’S SERVICES v. AN THO NY D EWAY NE HOOD

Direc t Appeal from the Juvenile Court for F entre ss County No. 2901 Michael Todd Bu rnett , Judge

No. M2009- 00911-COA-R 3-P T - F iled Dece m ber 30, 2009

This is a ter m i n at ion of pare ntal rig hts case

. Fa ther/Appe llant appea ls the trial court’s order
, termin ati ng his pare ntal rig hts to four of his biologica l children. The trial court terminated Appellant’s pa

renta l rig hts upon its finding
, by clea r and convincing evidenc e, that Appellant had abandone d the children by eng ag ing in conduct prior t o his incar cer ation that exhibi ts a wanton disreg ard for the welfa

re of the children, that there is a persistenc e of conditions, and that termination of Appellant’s pare ntal rig hts is in the best interests of the children. We find that the trial court err ed in f inding persistenc e of conditions. Howeve r, we aff irm the trial cour

t’s finding of aba

ndonment and that ter

mination is i n the best intere sts of the children.

Tenn. R. App . P . 3. Appeal as of Right; Judgme nt of th e Juvenile Court Affi rm ed in Par t and Reverse d in P art.

J

. S T E V E N S T A F F O R D , J
., delivere d the opinion of the court, in which A L A N E. H I G H E R S , P.J
., W.S
.,. and Holly M., Kirby , J ., joined.

J ames Ree d Br own, B y

rdstown, Tenne ssee, f

or the Appe llant, Anthony Dewa y ne Hood.

Robert E. Cooper, J r., Attorney Gene ral and Reporter
, and Michae l E. Moore, Solicitor Gene ral, J ill Z

. G r im
, A s s is ta

n t Attorney Gene ral, Doug las Earl Dimond, Senior Counsel and Eliz abeth C. Driver
, L ead C o unsel, Nashville, Tenne ssee, for Appellee
, State of Tenne ssee, Depa rtment of Children’s Service s.

OP INION

Appellant Anthony Dewa y ne Hood(“ Mr. Hood”) is the biologica l fathe r of the four children
at issue in this case

. The children’ s mother was initially a party to this suit; howeve r, she

surre ndere d her pare ntal rig hts befor e the trial (on November 25, 2008), and she is not a party to thisappea l. Mr. Hood is also the adoptive fathe r of a fifth child, B.H
, the custody of whom is not at issue

in this appeal.

I n 2001 or 2002, Mr. Hood and the children’ s mother split up. Dr. J ulian S an b o rn , a perma nency clinician who conducte d three sessions w ith the Hood children in 2007, testified that, following his split with the children’ s mother, Mr. Hood took the children out of state without Ms. Hood’s consent. For approximately three y ear s, th e ch i l d ren’ s mother had no knowledg e of the wher eabouts of Mr. Hood and the ch i l d re n

. During t his time, Mr. Hood and the children lived in Waveland, Mississ ippi, wher e they beca me acqua inted with J esse and J ackie Caves. During the time they lived in Mississ ippi, Mr. Hood was hospitaliz ed fre q u e n tl y f o r me d ic a l p r o b le ms, including lung disease, emphy sema, and pneumonia. During those times that Mr. Hood was hospitaliz ed, the Caves would look after

the childre n.

I n Aug ust, 2005, Hurric ane Katrina decimate d the Waveland, Mississ ippi are a, leaving both Mr. Hood and the Caves without homes. I n the wake of the hurrica ne, Mr. Hood and the children moved to Fe ntress County
, Tenne ssee. The Caves also decide d to move to Fe ntress County

. When he returned to Tenne ssee, Mr. Hood m ade contact with his ex-wife, L eisha Hicks (no t t he mot her

o f t h e ch i l d ren at issue in this appea l). Despite the fac t that Ms. Hicks had a history of problems with dr ug s and alcohol, Mr. Hood allowed her to live in the family home. After about five wee ks, the rela tionship betwee n Mr. Hood and Ms. Hicks deter iorated to the point that Mr. Hood asked Ms. Hicks to move out.

On November 16, 2005 (the night befor e Ms. H icks was supposed to be out of Mr. Hood’s home), the police wer e called to the residenc e. Ms. Hicks informed the police that she had witnessed Mr. Hood in a sex ual pos ition with Mr. Hood’s adopted daug hter, B.H. B.H

. was re m o ved from Mr. Hood’s home, but the ot her four children wer e not. On J uly 12, 2006, Mr. Hood was arre sted for the se x ual battery of B.H. When he was arr ested, Mr. Hood aske d the Caves to look af ter the four children, and eventua lly executed a power of attorney in favor of the Caves so that they could enroll the c hildren in school.

After supporting the Hood children for sever al months without any financ ial assistance
, Mr. Caves contac ted the Appellee State of Tenne ssee Depa rtment of Children’s Service s (“D CS”). On September 22, 2006, DCS filed a petition to declare the children depende nt and neg lected. On September 25, 2006, a restra ining order was enter ed, prohibiting contac t betwee n Mr. Hood and the children, and the children wer e broug ht into the protec tive custody of the juvenile court. On October 23, 2006, the trial court found probable cause to believe the children wer e depende nt and neg lected and enter ed a protec tive order
, removing the children from Mr. Hood’s custody

. A g uardia n ad litem

was appointed for the children, and counsel was appointed for Mr. Hood. After the Hood children
enter ed state custody
, they wer e officia lly place d in foster car e with the Caves, who wer e then able
to rec eive se rvice s for the c hildren.

Be g inning on November 9, 2006, DCS develope d multipl e sets of perma nency plans to assist with the reunific ation of the Hood family

. All of the perma nency plans wer e subsequently ratified

-2-by the trial court. Although Mr. Hood was incar cer ated, the rec ord indicates that DCS mailed him

written notice of the per

manenc y plan meeting s, and informe d him that he could par ticipate in the meeting s by

telephone, or

by providing written input. He did neither

.

On No v ember 14, 2006, Mr. Hood was rele ased from jail on bond. He rema ined fre e for

near ly five months, during which time he collecte d disability income. Despite rec eiving this income, Mr. Hood did not provide support for the children. Moreove r, he never made contac t with DCS to inquire as to their welfa

re. W h en q u es t i o n ed as to why he failed to make contac t with DCS, Mr. Hood stated that he had no rea son to contac t DCS. On April 3, 2007, Mr. Hood was returne d to jail afte r fa iling to appe ar in c ourt.

On J une 28, 2007, Mr. Hood was tried for the sexual battery of B.H. He was found g uilty of sexual battery by an authority fig ure, and was s en t en ce d t o six y ear s in prison. During the criminal trial, Mr. Hood admitted that he had sent B.H

. money so that she could run awa y from her foster home

.

I n Fe b ru ary 2008, DCS case worke r Br andon Presley testified that he mailed a letter and copies of the perma

nency plans to Mr. Hood at Turney Prison. I n his letter, Mr. Presley encour ag ed Mr. Hood to take part in an y p are nting or alcohol and drug prog rams that wer e offere d in prison. Two months afte r sending the letter, Mr. Presley testified that he called the prison to inquire about the specific prog rams available to inmates. Following this conver sation, he ag ain wrote to Mr. Hood
to encour ag e him to avail himself of these prog rams. Althoug h Mr. Hood twice responde d to Mr. Presley ’s co rr es p o n d ence, there is no proof in rec ord that he actua lly participa ted in any of the available prog rams.

On M ay 21, 2008, DCS filed a petition to terminate Mr. Hood’s parental rights t o his four biologica l children. I n its petition, DCS asserted the following g rounds: (1) abandonme nt by an incar cer ated pare nt; (2) persistenc e of conditions; (3) sever e child abuse, and (4) rec eipt of a sentenc e of two or more y ear s for the sever e abuse of a sibling of the children who wer e the subject o f t h e petition. DCS also alleg ed that ter mination of Mr. Hood’s pa renta l rig hts was in the best interests of the children. The petition wa s hear d on Dec ember 10, 2008. By Orde r of Fe bruar y 6, 2009, the trial court terminated Mr. Hood’s pare ntal rig hts to his four children on g rounds of abandonme nt and persistenc e of conditions, and upon its finding that termination was in the children’ s best interests.

Mr. Hood appe als the termination of his par ental rig hts, and raise s three issues for review as stated in his brief

:

I

. Whether the Court err ed by admitting the transcr ipt from the criminal trial into evidenc e.

I I

. Whet h er, by clea

r and convincing evidenc e, the Depa rtment has
proven persistenc e of conditions when the r e w a s n o p r io r adjudication of abuse or neg lect.

-3-I I I

. Whether, by clea r and convincing evidenc e, the Depa rtment has
proven that the app el l an t has eng ag ed in conduct prior to incar cer ation that exhibi ts a wanton disreg ard for t he welfare of t he children.

Adm ission of the Crim inal T rial Transcript

At th e b egi n n i n g of the hear ing in this case , the trial court admitted the transcr ipt of Mr. Hood’s criminal trial over the objection of his attorney

. Sp ec i fi ca l l y , Mr. Hood asser ted that the criminal trial transcr ipt did not support any of the g rounds for termination asse rt ed b y DC S in its petition. DCS c ountere d that the cr iminal case suppor ted the g rounds of persistenc e of conditions and abandonme nt by wanton disreg ard for the welfa re of the children pri o r to Mr. Hood’s incar cer ation. Mr. Hood then arg ued that the transcr ipt wa s h e a r s a y a n d
, c o n s e q

u ently
, inadmissible. Specifica lly
, Mr. Hood arg ued that this wa s n o t t h e same proce eding and there fore the hear say exception did not apply

. DCS arg ued that the ey ewitness to the event, L eisha Hicks, and the victim, B.H . wer e both unava ilable to testify in the termination of par ental rig hts hearing

. DCS supported this arg ument by explaining to the trial court that it did not know the wher eabouts of Ms. Hicks and that it would offe r the testimony of a DCS empl oy ee who had attempted to contac t B.H

. and had been unsuc cessf

ul.

Fr om our review of the record, it appea rs t hat t he trial court, in making its decisi o n in this

case , only relied upon the testimony of B.H

. and Mr. Hood from the criminal trial. Tenne ssee Rules of Evidenc e 804(b) provides:

(b) Hea rsay Ex ce p t ions. —The following are not excluded by the hear say rule if the de clar ant is unavailable as a w itness: (1) Form er T es t i mony

. —Testimony g iven as a witness at another hear ing of the same or a differ ent proce eding or in a deposition taken in compl i an ce wi th law in the course of the same or another
proce eding
, if the party ag ainst whom the testimony is now offe red had both an opportunity and a simil ar motive to develop the testimony by direc t, cross, or r edire ct examination. 1

U n a v a i l a b i l i t y i s d e f

i n e d i n T e n n

. R

. E v i d

. 8 0 4 ( a ) a s : 1

" U n a v a i l a b i l i t y o f a w i t n e s s " i n c l u d e s s i t u a t i o n s i n w h i c h t h e d e c l a r a n t

( 1 ) I s e x e m p t e d b y r u l i n g o f t h e c o u r t o n t h e g r o u n d s o f p r i v i l e g e f r o m t e s t i f

y i n g

c o n c e r n i n g t h e s u b j e c t m a t t e r o f t h e d e c l a r a n t 's s t a t e m e n t ; o r ( 2 ) P e r s i s t s i n r e f

u s i n g t o t e s t i f

y c o n c e r n i n g t h e s u b j e c t m a t t e r o f t h e d e c l a r a n t ' s

s t a t e m e n t d e s p i t e a n o r d e r o f t h e c o u r t t o d o s o ; o r ( 3 ) D e m o n s t r a t e s a l a c k o f m e m o r y o f t h e s u b j e c t m a t t e r o f t h e d e c l a r a n t 's

s t a t e m e n t ; o r ( 4 ) I s u n a b l e t o b e p r e s e n t o r t o t e s t i f y a t t h e h e a r i n g b e c a u s e o f t h e d e c l a r a n t 's d e a t h o r t h e n e x i s t i n g p h y s i c a l o r m e n t a l i l l n e s s o r i n f i r m i t y ; o r ( c o n t i n u e d

. . . )

-4-Acc ordi n gl y , i f a witness previously testified in another proce eding and the party whom the

tes t i m o n y is offe red ag ainst had an opportunity to examine the witness and a simil ar motive to develop that witness’ testimony
, then that testimony may be admitted in a subsequent proce eding if the witness is unavailable

. Although, in his brief, Mr. Hood disputes the unavailability of the witnesses on appea l, from

our revie w of the rec ord, it appea rs that Mr. Hood did not raise this issue at the t rial level. As a g ener al rule, "que stions not raised in the trial court will not b e en t er t ained on appea l." City of Cookeville ex rel. Cookeville Regional Med. Ctr. v. Hum p h r ey , 126 S.W .3d 897, 905-06 (Tenn.2004) ; In re Adoption of E.N.R.
, 42 S.W .3d 26, 32 (Tenn.2001)

. I n the absenc e of any argume nt at t rial t hat t he witnesses wer e, in fac t, available
, Mr. Hood cannot be hear d to complain

on appea l. Moreove r, C ourt of Appeals Rule 6 require s the Appellant to cite to the r ecor d in order
to show wher e the alleg ed err or was “sea sonably called to the attention of the trial judge .” Mr. Hood fails to cite in his brief wher e in the rec ord he objected to the unavailability of the witnesses from the criminal trial. Tenn. Ct. App. R. 6. Be cause it appea rs to this Court that Mr. Hood did not object to the availability of the witnesses nor does he provide this Court with a citation to wher e he did so, we cannot r eview this issue on appe al.

Upon finding B.H

. unavailable
, the t rial court may allow her testimony in the criminal trial
to be admitted into evidenc e if it finds that Mr. Hood had both an opportunity and simil ar motive to develop her testimony previously

. We have revie wed the transcr ipt from the criminal proce eding and find that Mr. Hood did in fac t have an opportunity to cross examine B. H. Fu rt h er , beca use B.H

. testified about the alleg ations of sexual battery by Mr. Hood, the fac t that Mr. Hood had blamed her for his family troubles, and that he had attempted to help her run awa y from her foster family
, we find that it is direc tly rele vant t o the t ermination of pare ntal rig hts proce eding and that M r. Ho o d h ad a simil ar motive to develop her testimony in the criminal trial. Consequently
, we can not say that the trial court a

bused its discretion in admitting into evidenc e B .H.’s pre vious testimony

.

I t also ap p ea rs t hat the trial court may have relied upon the testimony of Mr. Hood at his criminal t rial i n re aching its decision i n this case

. Tenne ssee Rul es of Evidence 803(1.2) provides that statements made by a party and offe red ag ainst that party are exceptions to the hear say rule and admissible evidence . Clearly , Mr. Hood’s own te stimony at his criminal t rial would be admissi ble
ag ainst him at the hear ing on the petition to terminate his pare ntal rig hts. Acc ording ly
, the trial court did not err in conside ring this testim ony

.

We rec og nize that the entire transcr ipt from the criminal trial was admitted into evidenc e and that this tra

nscript included the testimony from other witnesses in a ddition to B.H. and Mr. H ood. Howeve r, it does not appea r that the trial court relied upon the testimony of any other witness at the

(

. . . c o n t i n u e d ) 1
( 5 ) I s a b s e n t f r o m t h e h e a r i n g a n d t h e p r o p o n e n t o f a s t a t e m e n t h a s b e e n u n a b l e t o p r o c u r e t h e d e c l a r a n t 's a t t e n d a n c e b y p r o c e s s ; o r ( 6 ) F o r d e p o s i t i o n s i n c i v i l a c t i o n s o n l y , i s a t a g r e a t e r d i s t a n c e t h a n 1 0 0 m i l e s f r o m t h e p l a c e o f t r i a l o r h e a r i n g

.
-5-criminal trial in making its decision in this case

. Acc ording ly
, any err or, if any , in admitting the entire

transcr ipt is harmless.

Term ination of Pare ntal Rights

Under both the United States and Tenne ssee Constit utions, a pare nt has a fundame ntal rig ht
to the car e, custody
, and control of his or her child. Stan ley v. Illin ois
, 405 U.S. 6 4 5
, 651 (1972); Nash-Putn am v. McCloud
, 921 S

. W .2d 170, 174 (Tenn.1996)

. Thus, the state may interfe re with
pare ntal rig hts only if there is a compelling state interest. Nash-Putn am , 9 2 1 S.W.2d at 174-75 (citing Sant osky v. Kram er , 455 U.S. 745 (1982))

. Our terminat i o n statutes identify “those situations in which the state' s interest in the welfa re of a child justifies inter fer ence with a pare nt's constitutional rig hts by setting forth g rounds on which termination proce eding s can be broug ht.” In re W .B.
, Nos. M2004-00999-COA- R3-PT, M2004-01572-COA- R3-PT, 2005 WL 1021618, at *7 (Tenn. Ct. App. Apr. 29, 2005) (citing Tenn. Code Ann. § 36-1-113( g )). A person seeking to terminate pare ntal rig hts
must prove both the exis tence of one of the statutory g rounds for termination and that termination is in the child' s best interest. Tenn. Code Ann. § 36-1-113(c) ; I n r e D.L.B.
, 118 S.W .3d 360, 367 (Tenn.2003) ; In re V

alentin e , 79 S.W .3d 539, 546 (Tenn.2002)

.

Be ca u s e o f t he fundamental nature of the parent' s rig hts and the g rave conseque nces of th e termination of those rig hts, courts must require a highe r standard of proof in deciding termination

case s. Sant

osky
, 455 U.S. at 769. Consequently
, both the g rounds for termination and the best interest inquiry must be established by clea r and convincing evidenc e. Tenn. Code Ann. § 36-3-113( c)( 1); In

re V alentin e , 79 S.W .3d at 546. Clear and convincing evidenc e “esta blishes that the truth of the fac ts

asser ted is highly probable

... and eliminates any serious or substantial doubt about corr ectne ss of the conclusions draw n from the evidenc e.” In re M.J.B.
, 140 S.W .3d 643, 653 (Tenn. Ct. App.2004). Such evidenc e “produc es in a fac t-finder ' s mind a firm belief or conviction reg arding the truth of the fac ts sought to be e stablished.” Id . at 653.

I n light of the heig htened standard of proof in termination of pare ntal rig hts case s, a revie wing
court must modify the customary standard of revie w set as forth in Tenn. R. App. P. 13(d). As to the trial court' s finding s of fac t, o u r re v i ew i s de novo with a presumption of corr ectne ss unless the evidenc e preponde rate s o t herw ise. Tenn. R. App. P. 13(d). We must then deter mine whether the fac ts, as found by the trial court or as supported by the preponde ranc e o f the evidenc e, clea rly and convin cingly establish the elements nece ssary to terminate pare ntal rig hts. Jones v. Garrett
, 92 S.W .3d 835, 838 (Tenn.2002). T h at being said, when the resolution of an issue in a case depends
upon the truthfulness of witnesses, the trial judge who has had the o pportunity to observe the witnesses and the ir manner and deme anor w hile testify ing is in a f ar be tter position than this C ourt to decide those issues. See McCaleb v. Satu rn Corp.
, 910 S.W .2d 412, 415 (Tenn.1995) ; Whit aker v. Wh itaker
, 957 S. W

. 2 d 834, 837 (Tenn. Ct. App.1997). The weig ht, faith, and cre dit to be given to any witness' testimony

lies in the first instance w ith the trier of f act, a nd the cr edibility

acc orded will be g iven g rea t weig ht by the appellate court. See id. ; see also Walton v. Y oung , 950 S.W .2d 956, 959 (Tenn.1997)

.

-6-Gr ound s for Term ination of Pare ntal Rights

The trial court terminated Mr. Hood’s pare ntal rig hts on two g rounds: (1) abandonme nt under Tenn. Code Ann. § 36-1-113( g )(1)
, and (2) persistenc e of conditions pursuant to Tenn. Code Ann. § 36-1-113( g )(3)

. We will revie w bot h of t hese g rounds ag ainst the appellate rec ord t o deter mine 2 whether they wer e prove n by

clea r and c onvincing evidenc e.

Aband onm ent

Tenn. Code Ann. § 36-1-113( g )(1) provides t h at a pare nt's rights may be terminated on the
g round of ab an d o nment as define d in Tenn. Code Ann. § 36-1-102. That statute define s abandonme nt, for purpose s of terminating pare ntal rig hts, as follows:

A pare nt or g uardia

n is incar cer ated at the time of the instit ution of an action or proce eding to decla re a child to be an abandone d child, or the
pare nt or g uardia

n has been incar cer ated during all or part of the four (4) months immediately prec eding the instit ution of such action or proce eding
, and either has willfully fa i l ed to visit or has willfully failed to support or has willfully failed to make rea sonable pay ments toward the support of the child for four (4 ) co n s ecutive months immediately prec eding such pare nt's or g uardia n' s incar cer ation, or the
pare nt or g uardia

n has enga g ed in conduct prior to incar cer ation that exhibi ts wanton disreg ard f or the we lfare of the c hild.

Tenn. Code Ann. § 36-1-102( 1)(A) (iv). I n In re Audrey S.
, 182 S.W .3d 838 (Tenn. Ct. App. 2005),
perm. app. denied (Tenn. Nov. 7, 2005), this Court noted that: Tenn. Code Ann. § 36-1-102( 1)(A) (iv) ref lects the idea that if a pare nt is incar cer ated, the child’s welfa re may be threa

tened. In re Audrey S.
, 182 S.W .3d at 8 6 6 (footnote omitted). Howeve r, incar cer ation alone is not enoug h to find abandonme nt. Id; see also Tenn. Code Ann. § 36-1-102( 1)(A) (iv). Acc ording ly
, the statu te also require s that t h e p arent either (1) willfully fail to visit or support the child for four months immediately proce eding such action or (2) eng ag e in conduct prior to incar cer ation in d i ca t i n g a wanton disreg ard f

or the we lfare of the c hild. Tenn. Code. Ann. § 36- 1-102(1) (A)( iv). 3

A t o r a l a r g u m e n t , t h e r e w a s s o m e c o n f u s i o n a s t o w h e t h e r p e r s i s t e n c e o f c o n d i t i o n c o u l d b e u s e d a s a g r o u n d 2

f o r t e r m i n a t i o n o f M r

. H o o d ’ s p a r e n t a l r i g h t s

. M r

. H o o d ’ s c o u n s e l a r g u e d t h a t , u n d e r I n r e A u d r e

y S

. , 1 8 2 S

. W

. 3 d 8 3 8 ( T e n n

. C t

. A p p

. 2 0 0 5 )
, p e r m

. a p p

. d e n i e d ( T e n n

. N o v

. 7
, 2 0 0 5 )
, t h e r e m u s t b e a p r i o r f i n d i n g o f d e p e n d e n c y a n d n e g l e c t i n o r d e r t o f

i n d p e r s i s t e n c e o f c o n d i t i o n s a t t h e t i m e o f t e r m i n a t i o n o f p a r e n t a l r i g h t s

. A t t h e o u t s e t o f i t s a r g u m e n t , c o u n s e l f o r D C S c o n c e d e s t h a t t h e g r o u n d s o f p e r s i s t e n c e o f c o n d i t i o n s w a s i n c o r r e c t l y a p p l i e d i n t h i s c a s e

.

T h e S t a t e a l l e g e d i n i t s P e t i t i o n t o T e r m i n a t e P a r e n t a l R i g h t s t h a t M r

. H o o d h a d a l s o w i l l f u l l y f a i l e d t o 3

s u p p o r t h i s c h i l d r e n f

o r f o u r m o n t h s i m m e d i a t e l y p r e c e d i n g h i s i n c a r c e r a t i o n

. T h e t r i a l c o u r t , h o w e v e r , f o u n d t h a t t h e S t a t e d i d n o t p r o v e t h i s g r o u n d b y c l e a r a n d c o n v i n c i n g e v i d e n c e

. N e i t h e r p a r t y r a i s e d a n i s s u e w i t h t h i s f i n d i n g o n

a p p e a l

. A c c o r d i n g l y , w e d o n o t r e v i e w t h i s f i n d i n g

.
-7-This Court has rec ently held that par ental conduc t e x hibiting wanton disreg ard for a child’s welfa re may o cc u r at any time prior to incar cer ation and is not limit ed to acts occurr ing during the four- month period immediately prec eding the pare nt’s incar cer ation. In re J er em i a h T

., No. E2008-02099-COA- R3-PT, 2009 WL 1162860, *8 (Tenn. Ct. App. April 3 0
, 2009) (citing In re Audrey S.
, 182 S.W .3d 838, 871 (Tenn. Ct. App. 2005)). Moreove r, we have h el d t h at a p ar ent’s
poor judgme nt a

nd bad ac ts that affe ct the childre n constitute a wa nton disreg ard for the welfa re of the chil d r e n

. State v. Harville
, No. E2008-00475-COA- R3-PT, 2009 WL 961782, *7 (Tenn. Ct. App. April 9, 2009).

The trial court found that the state had proven abandonme nt by clea r and convincing evidenc e

as Mr. Hood exhibi ted a wanton disreg ard for the we l fa re o f h is children prior to incar cer ation. S p ec i fi ca lly
, with reg ard to abandonme nt, the trial court found that Mr. Hood exhibi ted a wanton disreg ard to the welfa

re of the children by admittedly allowing his ex-wife, a known drug addict and alcoholic, to live with him and the children; because that h e wa s co n v i cted of sexual battery by an authority fig ure ag ainst a sibling of the children; by blaming the child-victim for his family problems, and attempting to a ssist her in running awa y from her foster home. The trial court found that while B.H
., the victim of the sexual battery
, was not part of this case , Mr. Hood’s ac t i o n s t o wa rds her exhibi ted a wa

nton disreg ard towa

rds all of his childre n

We have revie wed the rec ord in this case , and conclude that there is clea r and convincing evidence t o s u p port the trial court’s finding that Mr. Hood exhibi ted a wanton disreg ard for the welfa re of his children so as t o co n stitut e abandonment under Tenn. Code Ann. § 36-1-113( g )(1)

. Most eg reg ious is Mr. Hood’s sexual abuse of his adopted daug hter B.H. Although his conviction for sexual abuse by an authority fig ure does not, as the trial court co rr ec t l y p oints out, constitute
gro u n d s o f sever e child abuse under the termination of pare ntal rig hts statutory scheme
, it does indicate a very serious problem in the household. Moreove r, the rec ord shows that Mr. Hood allowed his ex-wife, a known drug addict and alcoholic, to live in the house with the children. Fur thermore
, by his ow n admission, Mr. Hood plotted with B.H. a nd, in fac t, sent money

to enable B .H. to le ave her foster care place ment. I n his testimony co n ce rn i n g this decision, Mr. Hood ex hibits a cavalier attitude and does not seem to fully g rasp the conseque nces of his actions, nor does he acc ept responsibility

for his part ther ein. Fr om the totality of the c ircumstance s, we c onclude that ther e is clea r and convincing evidenc e in the rec ord to support th e t ri al co u rt ’s finding that g rounds of abandonme nt by

wanton disreg ard f

or the we lfare of the c hildren exist i n this case.

P ersiste nce of Cond itions

Tenn. Code Ann. § 36- 1-113(g )(3) provides:

(3) The child has been remove d from the home o f t he pare nt or g uardia n by order of a c ourt for a

period of six (6) months and:

(A) The conditions that led to the child' s remova l or other conditions that in all rea sonable probability would cause the child to be subjected

-8-to further abuse or neg lect and that, there fore
, preve nt the child' s safe return to the c are of the pa rent(s) or g uardia

n(s), still persist; (B ) There is littl e likelihood that these conditions will be reme died at

an ear ly date so that the child can be safe ly returne d to the pare nt(s) or g uardia n(s) in the ne ar f

uture; and (C) The c ontinuation of the pare nt or g uardia n and child re lationship
g rea tly diminis hes the child' s chanc es of ear ly integ ration into a safe
, stable and pe rmane nt home;

I n In re Audrey S
., 182 S.W .3d 838 (Tenn. Ct. App.2005), this Court held that, “base d upon the statutory text and its historical development, Tenn. Code Ann. § 36-1-113( g )(3) [ground of persistenc e of conditions] applies as a g round for termination of pare ntal rig hts only wher e the prior
court order removing the child from the pare nt's home was based on a judicial finding of depende ncy , neg lect, or abuse.” Acc ording ly
, we must deter mine whether the October 23, 2006 Orde r removing the children from Mr. Hood’s custody constituted a judicial finding of depende ncy , neg lect or abuse.

When a child has been alleg ed depende nt, neg lected o r ab u s ed
, there are three ty pes of h ea ri n gs t h e follow: (1) preliminary
, (2) adjudicator y , and (3) dispositi onal. In re Audrey S.
, 182 S.W .3d at 874 (citations omitted). The pur pose of a n adjudicator

y hear ing is to deter

mine whether th e all eg ations of dependenc y , neg lect or abuse are true. Id. I n an adjudicatory hear ing, the Rules of Evidence apply and the trial court must find that the children are depende nt, neg lected or abused by clea r and convincing evidenc e. Id. at 874-75 (citations omitted). On the other hand, a preliminary hear ing, w hich occ urs prior to the adjudicator y hear ing, is only to a llow the trial court to dete rmine whether the child should be remove d pending the adjudicator y hear ing. Id. at 875 (citations omitted). I n making this deter

mination, the trial court may consider reliable hear say and must o nly find probable cause to believe the c hild is dependent, neg lected or abused in order

to remove the child. Id. Be cause of these differ ence s, an order from a preliminary hear ing, based on a finding of probable

cause , is not a judicial finding of depende ncy , neg lect or abuse. Id. Consequently
, it cannot g ive rise
to g rounds o f p ersist ence of conditions pursuant to Tenn. Code Ann. § 36-1-113( g )(3) in a termination proce eding

. Id.

The October 23, 2006 Orde r by the trial court, was a protec tive order
, removing the children from Mr. Hood’s custody based o n probable cause to believe the children wer e depende nt and
neg lected. While a pe tition t o decla re the children de pendent a nd neg lected w as filed, the c hildren

wer e never adjudicate d depende nt and neg lected in acc ordanc e with In re Audrey S. Be cause there

was never a judicial finding of depende ncy , neg lect or abuse, based on clea r and convincing evidenc e, persistanc e of conditions under Tenn. Code Ann. §36-1-113(g ) cannot be a g round for termination of pare ntal rig hts. Acc ording ly
, we find that the trial court err ed in rely ing on Tenn. Code Ann. §36- 1-113(g ) as a

g round for

termination and re verse this finding.

Despite this finding
, we still find that the State has proven g rounds for termination of Mr. Hood’s pare ntal rig hts. The State need only prove one of the statutory g rounds in order to terminate Mr. Hood’s pare ntal ri gh t s

. T en n. Code Ann. § 36-1-113( c); In re D.L.B.
, 118 S.W .3d 360, 367

-9-(Tenn.2003) ; In re V alentin e , 79 S.W .3d 539, 546 (Tenn.2002)

. Be cause we have found that the trial
court did not err i n co n cl u d i ng that the State had proven abandonme nt by clea r and convincing evidenc e, we proce ed with our re view.

Best Inter est Analysis

Although M r

. H o o d d o e s n ot raise an issue conce rning the trial court’s finding that termination of his pare ntal rig hts was in the best interests of the children, befor e a court in this State can terminate

a biologica l pare nt's pare ntal rig hts, it must find that doing so is in the best interest of the child. See Tenn Code Ann. § 36-1-113( c)(2). Consequently
, we will revie w the trial court’s finding s on the issue of best intere sts.

Tenne ssee Code Annotated § 36-1-113( I ) provides a list of fac tors the trial court is to consider when deter

mining if termination is in the child’s best interest. Howeve r, this list is not exhaustive, 4 and the statute does not require the court to find the exis tence of ever y fac tor befor e concluding that termination is in a child's best intere st. State v. T.S.W.
, No. M 2001-01735-COA- R3-J V, 2002 WL 970434 (Tenn. Ct. App. May 10, 2002). Her e, the trial court revie wed many of these fac tors, and made the following
, specific finding s conce rning the children’ s best interests: (1) Mr. Hood has not made an adjustment of circ umstances, conduct, or conditions to make it safe or in the child’s best interests to return the children to his home; (2) Mr. Hood has not made any lasting adjustments and

T e n n

. C o d e A n n

. § 3 6

- 1

- 1 1 3 ( i ) p r o v i d e s : 4

1 ) W h e t h e r t h e p a r e n t o r g u a r d i a n h a s m a d e s u c h a n a d j u s t m e n t o f c i r c u m s t a n c e , c o n d u c t , o r c o n d i t i o n s a s t o m a k e i t s a f e a n d i n t h e c h i l d 's b e s t i n t e r e s t t o b e i n t h e h o m e o f t h e p a r e n t o r g u a r d i a n ; ( 2 ) W h e t h e r t h e p a r e n t o r g u a r d i a n h a s f a i l e d t o e f

f e c t a l a s t i n g a d

j u s t m e n t a f

t e r

r e a s o n a b l e e f

f o r t s b y a v a i l a b l e s o c i a l s e r v i c e s a g e n c i e s f o r s u c h d u r a t i o n o f t i m e t h a t l a s t i n g a d

j u s t m e n t d o e s n o t r e a s o n a b l y a p p e a r p o s s i b l e ; ( 3 ) W h e t h e r t h e p a r e n t o r g u a r d i a n h a s m a i n t a i n e d r e g u l a r v i s i t a t i o n o r o t h e r

c o n t a c t w i t h t h e c h i l d ; ( 4 ) W h e t h e r a m e a n i n g f u l r e l a t i o n s h i p h a s o t h e r w i s e b e e n e s t a b l i s h e d b e t w e e n t h e p a r e n t o r g u a r d i a n a n d t h e c h i l d ; ( 5 ) T h e e f

f e c t a c h a n g e o f c a r e t a k e r s a n d p h y s i c a l e n v i r o n m e n t i s l i k e l y t o h a v e o n t h e c h i l d 's e m o t i o n a l
, p s y c h o l o g i c a l a n d m e d i c a l c o n d i t i o n ; ( 6 ) W h e t h e r t h e p a r e n t o r g u a r d i a n , o r o t h e r p e r s o n r e s i d i n g w i t h t h e p a r e n t o r g u a r d i a n , h a s s h o w n b r u t a l i t y , p h y s i c a l
, s e x u a l
, e m o t i o n a l o r p s y c h o l o g i c a l a b u s e , o r n e g l e c t t o w a r d t h e c h i l d
, o r a n o t h e r c h i l d o r a d u l t i n t h e f a m i l y o r h o u s e h o l d ; ( 7 ) W h e t h e r t h e p h y s i c a l e n v i r o n m e n t o f t h e p a r e n t 's o r g u a r d i a n 's h o m e i s h e a l t h y

a n d s a f e , w h e t h e r t h e r e i s c r i m i n a l a c t i v i t y i n t h e h o m e , o r w h e t h e r t h e r e i s s u c h u s e

o f a l c o h o l o r c o n t r o l l e d s u b s t a n c e s a s m a y r e n d e r t h e p a r e n t o r g u a r d i a n

c o n s i s t e n t l y u n a b l e t o c a r e f o r t h e c h i l d i n a s a f

e a n d s t a b l e m a n n e r ; ( 8 ) W h e t h e r t h e p a r e n t ' s o r g u a r d i a n 's m e n t a l a n d / o r e m o t i o n a l s t a t u s w o u l d b e d e t r i m e n t a l t o t h e c h i l d o r p r e v e n t t h e p a r e n t o r g u a r d i a n f r o m e f f e c t i v e l y p r o v i d i n g

s a f e a n d s t a b l e c a r e a n d s u p e r v i s i o n f o r t h e c h i l d ; o r ( 9 ) W h e t h e r t h e p a r e n t o r g u a r d i a n h a s p a i d c h i l d s u p p o r t c o n s i s t e n t w i t h t h e c h i l d

s u p p o r t g u i d e l i n e s p r o m u l g a t e d b y t h e d e p a r t m e n t p u r s u a n t t o § 3 6

- 5

- 1 0 1

.
-10-it is not rea sonably possibly that he would in the near future; (3) Mr. Hood was convicted of sexual 5 battery of his oldest child, a sibling of these children; (4) Mr. Hood does not have a home and when he did, he allowed a known drug addict and alcoholic to reside with him and t h e ch i l d ren; and (5)

ever y profe ssional that testified, found that the children want a stable home and family
, and that ever y child had told either the trial court or a profe ssional that he or she wishes to be place d for adoption.

W e h ave revie wed the rec ord in this case , and conclude that there are sever al best interest fac tors that weig h ag ainst Mr. Hood. As discussed above, Mr. Hood has failed to make an adjustment of circ umstances despite rea sonable eff orts on the part of DCS. Specifica lly
, Mr. Hood has failed to participa te in sex offe nder trea tment, which, under the ci rcumstances of this case , would be mandatory befor e the children could reside with him ag ain. Tenn. Code Ann. §§ 36-1-113( i)(1) and (2). Also, as discussed above, the children have expressed a desire to stay with the Caves. Given the circ umstances, we conclude t hat i t would be detr imental to remove these children from the l oving, stable, and safe home they have found with the Caves. Tenn. Code Ann. § 36-1-113( i)(5). Moreove r, Mr. Hood has sexually abused the children’ s s i b l ing. Tenn. Code Ann. § 36-1-113( i)(6). Fur thermore , Mr. Hood has f ailed to maintain a safe home environment by allowing a known dr

ug addict and alcoh olic to live with the children. Tenn. Code Ann. § 36-1-113( i)(7). Mr. Hood has failed to provide support for the children, even while he was not incar cer ated and was rec eiving disability income, Tenn. Code Ann. § 36-1-113( i)(9); and, when he was out of jail on bond, Mr. Hood failed to c ontact DCS to inquire about his children. When asked why he did not contact DCS, Mr. Hood testified that he had no rea son to contac t DCS. Most importantly
, howeve r, these children have found a stable and safe home with the Caves, and the Caves have indicated a desire to adopt all four children. Fr om the totality of the circ umstance, we co n cl u d e t hat there is clea r and convincing evidenc e in rec ord to support the trial court’s finding that termination of Mr. Hood’s pare ntal rig hts is in the best interests of these children.

For the fore g oing rea sons, we aff irm in part and reve rse in part the order of the trial court, terminating Mr. Hood’s pare ntal rig hts to the four children at issue in this case

. Costs of this appea l

are assessed a g ainst the Appellant, Anthony Dewa y ne Hood, a

nd his surety

.



### __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ J. STEVEN STAFFORD, J.

T h e t r i a l c o u r t m a d e a s p e c i f i c f i n d i n g t h a t D C S h a d e x e r c i s e d r e a s o n a b l e e f f o r t s i n t h i s c a s e

. M r

. H o o d h a s 5

n o t r a i s e d a n i s s u e c o n c e r n i n g w h e t h e r t h e t r i a l c o u r t e r r e d i n s o f i n d i n g

.
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