Assigned on Briefs February 2, 2018
from the Circuit Court for Washington County No. 34545 James
E. Lauderback, Judge
appeals the trial court's termination of his parental
rights on the ground of wanton disregard for the child's
welfare prior to the father's incarceration. We affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Lawrence Scott Shults, Johnson City, Tennessee, for the
appellant, David D.
D. Bennett, J., delivered the opinion of the Court, in which
J. Steven Stafford, P.J., W.S., and John W. McClarty, J.,
D. BENNETT, JUDGE
and Procedural Background
R. ("Mother") and David D. ("Father") are
the biological parents of Bentley D., who was born in June
2012. Father was incarcerated with the Tennessee Department
of Correction at the time of the child's birth. Mother
married Aurelio G. ("Stepfather") in February 2014.
26, 2015, Mother and Stepfather filed a petition to terminate
Father's parental rights and to allow Stepfather to adopt
Bentley. The petition alleged as grounds:
[F]ather has never paid support for the child within the
prior four months of this petition, nor has he ever paid any
support although he has been incarcerated from the date of
the child's birth to the present time, and that
respondent within the prior four months has not attempted to
call petitioner mother to check as to the welfare of this
child nor has he ever sent this child a letter or card for
petitioner mother to read to the child since an October 2013
letter and a drawn picture for Bentley to color in June,
2013. Although respondent did ask about this child to
petitioner Melissa [R.] on February 24, 2014, he stated on
that date that he wished to surrender his parental rights to
the child. Grounds exist for termination of the father's
parental rights on the basis of abandonment.
filed an answer opposing the termination of his parental
rights in which he alleged that Mother told him to stop
writing and that he "made several attempts to check on
my child" but the mail came back "return to
sender" or he never received a response from Mother.
Father further stated that Mother "moved four times in
two years." The trial court appointed a guardian ad
litem for the child and an attorney for Father.
amended answer filed on October 23, 2015, Father raised a
number of defenses, including the defense that Mother's
petition failed to state a claim upon which relief could be
granted. Father filed a motion to dismiss on October 29,
2015, based upon Mother's failure to state a claim upon
which relief could be granted. Mother filed a response in
opposition to the motion to dismiss. The motion was heard on
May 23, 2016. The trial court found that Mother's
petition did not comply with Tenn. Code Ann. §
36-1-113(d)(3)(A)(i) or Tenn. Code Ann. §§
36-1-113(d)(3)(C)(ii) and (iii). Although the trial court
found that, when taken together, these defects made the
petition defective, the trial court determined that the
defects were not fatal. Upon Mother's oral motion, the
trial court gave her additional time to file an amended
petition to correct the defects. The trial court further
stated: "The petitioners are also ORDERED to amend their
Petition to more fully state, describe and allege the ground
of abandonment, with particular reference to the definition
of abandonment set out in T.C.A. § 36-1-102."
March 27, 2016, Mother filed a pleading entitled
"Amendments to Petition" that included the omitted
provisions specified by the trial court and the following
paragraph regarding grounds:
Petitioners further allege an additional act of abandonment
of the child by the respondent, that being that prior to his
incarceration in the Tennessee Department of Corrections,
respondent committed acts in wanton disregard for the rights
of this child. Specifically, respondent had just served
thirty days upon a violation of probation for his prior
Washington County Tennessee felony convictions, when he
embarked on an additional crime spree involving eight auto
burglaries and credit card fraud, knowing at the time that
petitioner . . . was pregnant with his child the subject of
this petition. Therefore he was sentenced on the prior
felonies and the new felonies to incarceration in the
Tennessee Department of Corrections, wherein he still resides
serving the sentences in one of their facilities wherein he
was incarcerated when this cause was initially filed.
Petitioners as well rely on their prior allegation of
abandonment that respondent failed to send mail on a regular
basis to the child or to inquire about the child on a regular
basis within four months of the petition being filed.
On June 22, 2016, Father filed an answer denying these
allegations and demanding strict proof; he stated that he was
scheduled to be released from prison before June 30.
final hearing was held on October 27 and 28, 2016. The court
heard testimony from Mother, Stepfather, a friend, maternal
aunt, maternal grandmother, Father, and paternal
great-grandmother. The trial court discussed the statutory
ground of failure to pay child support during the four months
preceding the parent's incarceration pursuant to Tenn.
Code Ann. § 36-1-102(1)(A)(iv). Because the child in
this case was not born until after Father's
incarceration, the trial court determined that this ground
was not applicable. The trial court then found that
Father's parental rights were subject to termination for
abandonment by wanton disregard prior to incarceration
pursuant to Tenn. Code Ann. § 36-1-102(1)(A)(iv) and
that termination was in the best interest of the child. After
the expiration of any appeal, the court stated, the
petitioners could proceed with their adoption petition.
argues on appeal that the trial court erred: (1) in failing
to find Mother's petition deficient under the Rules of
Civil Procedure, (2) in using an improper time window when
considering the ground of wanton disregard, and (3) in
finding sufficient evidence to justify termination for wanton
both the federal and state constitutions, a parent has a
fundamental right to the care, custody, and control of his or
her own child. Stanley v. Illinois, 405 U.S. 645,
651 (1972); In re Angela E., 303 S.W.3d 240, 249-50
(Tenn. 2010); Nash-Putnam v. McCloud, 921 S.W.2d
170, 174-75 (Tenn. 1996) (quoting Nale v. Robertson,
871 S.W.2d 674, 678 (Tenn. 1994)). This right is not
absolute, however. If a compelling state interest exists, the
state may interfere with parental rights.
Nash-Putnam, 921 S.W.2d at 174-75 (quoting
Nale, 871 S.W.2d at 678). Our legislature has
enumerated the grounds upon which termination proceedings may
be brought. See Tenn. Code Ann. § 36-1-113(g).
The existence of any one of the enumerated grounds will
support a termination of parental rights. In re
Valentine, 79 S.W.3d 539, 546 (Tenn. 2002).
terminating a parent's fundamental parental rights has
severe consequences, termination cases require a court to
apply a higher standard of proof. State Dep't of
Children's Servs. v. A.M.H., 198 S.W.3d 757, 761
(Tenn. Ct. App. 2006). Consequently, a court must determine
by clear and convincing evidence both that grounds for
termination exist and that termination is in the best
interest of the child. Tenn. Code Ann. § 36-1-113(c);
In re Valentine, 79 S.W.3d at 546. "Clear and
convincing evidence 'establishes that the truth of the
facts asserted is highly probable, and eliminates any serious
or substantial doubt about the correctness of the conclusions
drawn from the evidence.'" In re Serenity
B., No. M2013-02685-COA-R3-PT, 2014 WL 2168553, at *2
(Tenn. Ct. App. May 21, 2014) (quoting In re M.J.B.,
140 S.W.3d 643, 653 (Tenn. Ct. App. 2004) (citations
light of the heightened standard of proof required in
termination of parental rights cases, we must adapt the
customary standard of review established by Tenn. R. App. P.
13(d). Id. In accordance with Tenn. R. App. P.
13(d), we review the trial court's findings of fact de
novo with a presumption of correctness unless the evidence
preponderates otherwise. Id. Next, we must determine
whether the facts establish the existence of one or more
grounds for termination by clear and convincing evidence.
In re M.J.B., 140 S.W.3d at 654.