Assigned on Briefs March 1, 2018
from the Juvenile Court for Sullivan County No. 17-JV-41814
Mark Toohey, Judge
a termination of parental rights case wherein the trial court
terminated a mother's parental rights based upon the sole
statutory ground of abandonment by incarceration. The court
further found that termination of the mother's parental
rights was in the best interest of the child. The mother
timely appealed. We affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed and Remanded
Elizabeth A. Brady, Sevierville, Tennessee, for the
appellant, Kayla W.
Herbert H. Slattery, III, Attorney General and Reporter; Erin
A. Shackelford, Assistant Attorney General, for the appellee,
Tennessee Department of Children's Services.
B. GOLDIN, J., delivered the opinion of the Court, in which
ANDY D. BENNETT and Thomas R. Frierson, II, JJ., joined.
B. GOLDIN, JUDGE
and Procedural History
Kayla W. ("Mother") gave birth to a son,
Tegan W., in September 2011. Mother identified Marco B.
("Father") as the child's father; however, this
appeal relates only to the termination of Mother's
2012, the Tennessee Department of Children's Services
(the "Department") received a series of referrals
alleging that Tegan W. was being neglected by Mother. As part
of the initial investigation, Mother testified that she
agreed to take a drug test for the Department, and she
admitted that she tested positive for illegal narcotics.
Mother attended a family team meeting with an employee of the
Department on December 5, 2012; thereafter, Mother's
whereabouts became unknown.
December 10, 2012, the Department filed a "Petition to
Transfer Temporary Legal Custody and for Ex Parte Order"
in the juvenile court of Sullivan County, Tennessee (the
"trial court"). The Department sought to have Tegan
W. adjudicated dependent and neglected, and it asked the
trial court to award temporary legal custody of the child to
his maternal grandmother, Cindy R. ("Grandmother").
According to the petition, the child was already living with
Grandmother when the petition was filed.Because Mother
could not be located to be served, a final hearing was never
held as a result of the Department's first petition. As
discussed in greater detail below, Tegan W. resided with
Grandmother until January 2016 when events taking place at
Grandmother's home necessitated the child's removal.
has been arrested several times since Tegan W. was first
removed from her legal custody in 2012. On January 23, 2014,
Officer Brandon Metcalf arrested Mother on a federal warrant
arising from her involvement in a conspiracy to counterfeit
federal reserve notes in violation of 18 U.S.C. § 371.
Mother testified that she was in possession of crack-cocaine
when she was arrested by Officer Metcalf, and she was charged
and pled guilty to simple possession on September 2, 2014. At
trial Mother testified that on November 25, 2014, she pled
guilty to the federal conspiracy charge and was sentenced to
time-served and released on supervised probation. However, on
December 10, 2014, she was arrested for violating the terms
of her release by failing to participate in a drug treatment
program and by failing to report to her probation officer.
Following her arrest, Mother entered into an agreed order,
whereby she agreed to serve four months in federal prison,
followed by two years of supervised release. The terms of the
new supervised release agreement also required Mother to
reside in a halfway house for the first six months of her
release. On May 31, 2015, Mother was released again, but her
release was revoked on July 17, 2015 because she failed to
report to the halfway house. Mother testified that instead of
reporting to the halfway house, she went on the run as a
fugitive to Florida until June 2016. Mother testified that
she believed Tegan W. continued to reside with Grandmother
while she was incarcerated and on the run as a fugitive, and
she stated that she called the child regularly.
January 8, 2016, Father brought Tegan W. to the hospital
because the child had sustained a life-threatening head
injury. Father reported to police that Tegan W. was injured
when Father accidently shot him in the head with a pellet
Tegan W. remained hospitalized on January 12, 2016, a grand
jury indicted Father, Grandmother, and several other
co-conspirators on a charge of conspiracy to distribute 280
grams or more of crack-cocaine. See 21 U.S.C.
§§ 846, 841(b)(1)(A). On January 19, 2016 the
Department filed a "Petition for Temporary Legal
Custody" asking the court to "find [Tegan W.]
dependent and neglected, and to award temporary legal custody
of the child to [the Department]." On January 19, 2016,
the trial court entered a protective custody order and Tegan
W. was placed with his maternal uncle. However, the child was
subsequently removed from his uncle's custody and placed
with his current foster family in August 2016.
Mother was still a fugitive, she testified that she learned
of Tegan W.'s injuries from a relative in January 2016,
and she resolved to return to Tennessee to see the child and
to turn herself in. However, the trial court found that
Mother did not in fact return to Tennessee until June 2016.
An agreed order revoking Mother's supervised release was
entered June 29, 2016, and Mother was required to serve a
sentence of fifteen months imprisonment with no further
supervision to follow.
February 15, 2017, the Department filed a petition to
terminate Mother's parental rights. Hearings were
held on June 12, 2017 and July 17, 2017, and Mother and
Elizabeth Kemp, a Department employee,
testified. On August 14, 2017, the trial court
entered a final order terminating Mother's parental
rights on the ground of abandonment by incarceration, with
the parent having exhibited behavior prior to her
incarceration displaying a wanton disregard for the welfare
of the child. The trial court also concluded that
termination of Mother's parental rights was in Tegan
W.'s best interest. Mother timely appealed.
presents the following issues for our review, which we
restate as follows:
. Whether the trial court erred in
concluding that the Department established the ground of
"abandonment" by clear and convincing evidence.
. Whether the trial court erred in
concluding that termination of Mother's parental rights
is in the child's best interest.
biological parent's right to the care and custody of his
or her child is among the oldest of the judicially recognized
liberty interests protected by the Due Process Clauses of the
federal and state constitutions." In re Carrington
H.,483 S.W.3d 507, 522 (Tenn. 2016). "Although
this right is fundamental and superior to claims of other
persons and the government, it is not absolute." In
re J.C.D.,254 S.W.3d 432, 437 (Tenn. Ct. App. 2007)
(citation omitted). "It continues without interruption
only as long as a parent has not relinquished it, abandoned
it, or engaged in conduct requiring its limitation or
termination." In re M.J.B.,140 S.W.3d 643, 653
(Tenn. Ct. App. 2004) (citations omitted). In Tennessee, our
statute provides that termination of a parent's rights to
his or her child must be based upon: "(1) [a] finding by
the court by clear and convincing evidence that the grounds