Facts: Mother and Father had a one-night stand that produced Child. Mother did not list Father’s name on the birth certificate and openly asserted that another man was Child’s father.

Later, Child was adjudicated as dependent and neglected in Mother’s care. Father was incarcerated on a one-year prison sentence followed by 11 years of probation when he learned that he might be Child’s father. After a DNA test confirmed paternity, the Department of Children’s Services (“DCS”) petitioned to terminate Father’s and Mother’s parental rights to Child.

The trial court found that termination of Father’s parental rights was supported by the statutory ground of confinement under a sentence of 10 years or more. The trial court further found that termination of Father’s parental rights was in Child’s best interest.

Father appealed.

On Appeal: In a 2-1 decision, the Court of Appeals affirmed the trial court.

Father argued the trial court erred in terminating his parental rights based upon his incarceration when he was only ordered to serve one year in jail followed by 11 years of probation.

Tennessee Code § 36-1-113(g)(6) provides as follows:

(g) Initiation of termination of parental or guardianship rights may be based upon any of the grounds listed in this subsection (g). The following grounds are cumulative and non-exclusive, so that listing conditions, acts or omissions in one ground does not prevent them from coming within another ground:
* * *
(6) 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[.]

After reviewing the record, a majority of the Court reasoned:

In this case, the requirements of the statute have also been met, namely Father has been confined under a sentence of 10 or more years when the Child was less than 8 years of age. While the statute requires some period of confinement, the legislature did not expressly provide that the actual period of confinement must amount to 10 or more years. We decline to insert such a meaning into the statute when the obvious intention of the statute was to achieve permanency for children whose parents are subjected to the possibility of lengthy prison sentences….

As Father is well aware from his past experience, his probation could be revoked at any time following his release, thereby subjecting the Child to an unending quest for permanency.

Accordingly, the trial court’s judgment terminating Father’s parental rights was affirmed. It is worth noting that the trial court terminated Father’s parental rights on a separate, independent ground (not covered in this blog post) that was affirmed by a unanimous Court of Appeals.

Dissenting Opinion: Judge Swiney wrote a dissenting opinion in which he said the following:

The majority interprets this statute to say that if a parent is sentenced even just to one day of confinement and then probation for ten or more years and the child is under eight years old, this statutory ground for termination is met. The majority’s position then also must be that if a parent is sentenced not to that one day of confinement but only to the ten years of probation with no sentence of confinement, this statutory ground for termination is not satisfied. I disagree with the majority’s interpretation of this statute as I cannot accept that this Draconian distinction was what the General Assembly intended when it enacted Tenn. Code Ann. § 36-1-113(g)(6)….

Furthermore, while it is clear that a parent who is incarcerated is physically unable to parent, it does not follow that a parent who is sentenced to probation is physically unable to parent a child while on probation. Practically, there is a distinction between a parent who has been sentenced to confinement or incarceration for a period of ten years or more and a parent who has been sentenced to a brief period of confinement followed by a period of probation that when combined totals ten years or more. A parent who is incarcerated is physically unable to parent, a parent serving probation is not necessarily physically unable to parent.

K.O.’s Comment: I agree with Judge Swiney’s legal analysis and reasoning here. Unfortunately, Father has little incentive to seek review by the Tennessee Supreme Court since there was another basis for the termination of his parental rights that was affirmed by a unanimous Court of Appeals. For that reason, this may be the last word on this issue (for now).

In re Chandler M. (Tennessee Court of Appeals, Eastern Section, July 21, 2014).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.