Assigned on Briefs Date: September 2, 2016
from the Juvenile Court for Shelby County No. Z6581 Harold W.
Horne, Special Judge
Department of Children's Services filed a petition in
July 2015 to terminate the parental rights of M.G.H. (Father)
with respect to his child, M.E.T. (the child). The trial court
found clear and convincing evidence of grounds supporting
termination for Father due to abandonment by an incarcerated
parent and persistence of conditions. The court also found,
by the same standard of proof, that termination is in the
best interest of the child. Father appeals. We affirm the
trial court's holding as modified.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed as Modified; Case Remanded
Williams, Memphis, Tennessee, for the appellant, M.G.H.
Herbert H. Slatery III, Attorney General and Reporter, and M.
Cameron Himes, Assistant Attorney General, Nashville,
Tennessee, for the appellee, Tennessee Department of
Charles D. Susano, Jr., J., delivered the opinion of the
court, in which Richard H. Dinkins, and Arnold B. Goldin,
CHARLES D. SUSANO, JR., JUDGE
and Z.P.T. (Mother) were never married. They were in a
relationship from about 2009 until late 2012. The child was
born in July 2013. No father was listed on his birth
certificate. After the child's birth, Mother left the
hospital without the child. The trial court found her
"mentally unstable, " noncompliant with medication
for her schizophrenia diagnosis, and without stable housing
or child care equipment. In August 2013, the child was placed
in the custody of DCS. He was adjudicated dependent and
neglected that November.
outset of the case, Mother orally provided DCS with the name
of the putative biological father. She did not provide any
other credible information about him. She gave DCS two
possible "endings" for Father's first name. A
DCS caseworker recorded Father's first name as ending in
"-ez" or "-el, " though, as it turned
out, it actually ends "-al." Equipped with the two
wrong endings and nothing more, DCS was unable to locate
Father. In 2014, a DCS caseworker by the name of Melissa
Justice, by chance, saw Mother at a McDonald's
restaurant. Ms. Justice testified that she verified
Mother's identity, after which she engaged her in
conversation. In the course of their discussion, Mother
wrongly identified others at the restaurant as her children
when they were not. Mother spoke with Ms. Justice about the
child's twin - Maxwell. In fact, the child had no twin.
Ms. Justice wrote her telephone number on a piece of paper
and gave it to Mother, asking her to contact DCS regarding
the child's case. She did not hear from Mother for some
time. About a year later, the child's paternal
grandmother contacted Ms. Justice. The grandmother provided
DCS with the correct spelling of Father's name. DCS was
finally able to identify Father in March or April of 2015.
April 13, 2015, Ms. Justice met Father for the first time. At
the time, he was incarcerated for assault. She testified that
during the meeting she discussed with him the permanency plan
and the criteria and procedures for termination of parental
rights. By that time, two permanency plans had been
developed, both of which listed an incorrect spelling of
Father's name. Ms. Justice testified that at the April
2015 meeting Father "told [her] that he knew that
[Mother] was pregnant and that she had named the baby
[M]." At trial, Father denied having made that
statement. Justice testified that the putative father
registry revealed no other claims to paternity, no other man
had held himself out as the father, and Mother had not
identified another possible father. DCS arranged for Father
to take a DNA test to address the issue of paternity. Father
testified that he first learned of the existence of the child
in April 2015. He said he did not know he was the father
until he received the DNA test results in July 2015. On July
17, 2015, DCS filed a petition to terminate both parents'
rights. DCS amended the petition in a filing on November 12,
2015. As to Father, the petition was amended to add the
ground of persistence of conditions.
has an extensive criminal history. By the time of trial on
February 4, 2016, he had not met or paid any support for the
child. He was then out of prison and living with his mother
after a stint in a halfway house. The trial court found clear
and convincing evidence of grounds to terminate Father's
parental rights due to abandonment by an incarcerated parent,
pursuant to Tenn. Code Ann. §§ 36-1-113(g)(1)
(2014) and -102(1)(A)(iv) (2014), and for persistence of
conditions, pursuant to Tenn. Code Ann. §
36-1-113(g)(3). The trial court also found, by the same
standard, that termination was in the child's best
interests. Father appeals.
raises two issues on appeal. (1) Whether the trial court
erred in finding statutory grounds for termination due to
abandonment and persistence of conditions. (2) Whether the
termination of parental rights is in the best interests of
the minor child.
parent has a fundamental right, based on both the federal and
state constitutions, to the care, custody, and control of his
or her child. Stanley v. Ill., 405 U.S. 645, 651
(1972); In re Angela E., 303 S.W.3d 240, 250 (Tenn.
2010); Nash-Putnam v. McCloud, 921 S.W.2d 170,
174-75 (Tenn. 1996). While this right is fundamental, it is
not absolute. The State may interfere with a parent's
rights in certain circumstances. In re Angela E.,
303 S.W.3d at 250. Our legislature has listed the grounds
upon which termination proceedings may be brought. Tenn. Code
Ann. § 36-1-113(g). Termination proceedings are
statutory, In re Angela E., 303 S.W.3d at 250;
Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004),
and a parent's rights may be terminated only where a
statutory basis exists. Jones v. Garrett, 92 S.W.3d
835, 838 (Tenn. 2002); In the Matter of M.W.A., Jr.,
980 S.W.2d 620, 622 (Tenn. Ct. App. 1998).
terminate parental rights, a court must determine by clear
and convincing evidence the existence of at least one of the
statutory grounds for termination and that termination is in
the child's best interest. Tenn. Code Ann. §
36-1-113(c); In re Valentine, 79 S.W.3d 539, 546
(Tenn. 2002). "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 586, 596 (Tenn. 2010)
(citations omitted). Unlike the preponderance of the evidence
standard, "[e]vidence satisfying the clear and
convincing standard establishes that the truth of the facts
asserted is highly probable." In re Audrey S.,
182 S.W.3d 838, 861 (Tenn. Ct. App. 2005).
ground for termination is established by clear and convincing
evidence, the trial court conducts a best interest analysis.
In re Angela E., 303 S.W.3d at 251 (citing In re
Marr, 194 S.W.3d 490, 498 (Tenn. Ct. App. 2005)).
"The best interest[ ] analysis is separate from and
subsequent to the determination that there is clear and
convincing evidence of grounds for termination."
Id. at 254. The existence of a ground for
termination "does not inexorably lead to the conclusion
that termination of a parent's rights is in the best
interest of the child." In re C.B.W., No.
M2005-01817-COA-R3-PT, 2006 WL 1749534, at *6 (Tenn. Ct.
App., filed June 26, 2006).
required to review all of the trial court's findings with
respect to grounds and best interest. In re
Carrington, 483 S.W.3d 507, 525-26 (Tenn. 2016)
("[W]e hold 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 interest[
], regardless of whether the parent challenges these findings
The Supreme Court has recently delineated our standard of
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). 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 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. 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. Additionally, all other
questions of law in parental termination appeals, as in other
appeals, are reviewed de novo with no presumption of
Id. at 523-24 (internal citations omitted).
"When a trial court has seen and heard witnesses,
especially where issues of credibility and weight of oral
testimony are involved, considerable deference must be
accorded to . . . the trial court's factual
findings." In re Adoption of S.T.D., No.
E2007-01240-COA-R3-PT, 2007 WL 3171034, at *4 (Tenn. Ct.
App., filed Oct. 30, 2007) (citing Seals v.
England/Corsair Upholstery Mfg. Co., Inc., 984 S.W.2d
912, 915 (Tenn. 1999)).
Code Ann. §36-1-113(g)(1) permits the termination of
parental rights when abandonment occurs as defined by Tenn.
Code Ann. § 36-1-102(1). That statute provides ...