In Re Demarkus T., M2016-01839-COA-R3-PT

Background

Children MarKayla (b. 2007) and DeMarkus Jr. (b. 2009) were removed by DCS after their sibling Arianna (b. 2009) was found dead in July 2013; parents Rawny A. (Mother) and Demarkus T. (Father) were arrested.
Father was later convicted of felony murder, aggravated child abuse, and false report (life sentence); Mother was convicted of criminally negligent homicide, reckless endangerment, and false report (five-year sentence).
DCS petitioned to terminate both parents’ rights on grounds of severe child abuse (Tenn. Code Ann. § 36-1-113(g)(4)) and, alternatively, that parents were sentenced to ≥2 years for conduct against a child (Tenn. Code Ann. § 36-1-113(g)(5)); DCS moved mid-trial to conform pleadings to include g(5).
Trial court found clear and convincing evidence of severe abuse by both parents and terminated both parents’ rights; it also found g(5) applied to Father but not clearly to Mother (sentenced exactly two years on one count).
The children have lived with the same foster family since October 2013, are bonded to the foster parents who intend to adopt, report feeling safe in foster care, and fear the parents; neither parent has had contact with the children since a no-contact order (except at the funeral).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether grounds for termination exist for severe child abuse (g(4))	DCS: Convictions, prior findings, and evidence show severe abuse of a sibling and failure to protect other children	Mother: She was not present when Arianna died; conviction was for criminally negligent homicide (not knowing conduct) so g(4) is inapplicable	Court: Affirmed — Father committed severe abuse; Mother also committed severe abuse by failing to protect children given notice of prior abuse and the surrounding evidence
Whether parental incarceration ≥2 years is an independent ground (g(5))	DCS: Parents’ criminal sentences satisfy g(5) as to siblings	Mother: Sentence timing/length ambiguity; sentenced exactly two years on one count so statute unclear	Court: Granted conforming amendment; g(5) applies to Father (life sentence). For Mother, statute ambiguity precluded applying g(5) solely on the two-year sentence, but termination still upheld on g(4)
Whether termination is in the children’s best interests	DCS: Children bonded to foster parents, fearful of parents, history of severe abuse, parents unavailable due to incarceration	Mother: Seeks opportunity to reunify and services; claims limited chance to maintain contact due to no-contact order	Court: Held termination is in children’s best interests — multiple statutory factors favor termination (bonding to foster family, fear of parents, severity/continuing risk of abuse, lack of parental adjustment)
Whether pleadings could be amended mid-trial to conform to proof (Rule 15.02)	DCS: Convictions introduced at trial support adding g(5); move to conform pleadings permitted	Mother: (Implicit) objected to new ground introduced at trial	Court: Allowed amendment; amendment supported termination as to Father under g(5)

Key Cases Cited

Keisling v. Keisling, 92 S.W.3d 374 (Tenn. 2002) (parental fundamental rights discussion)
Stanley v. Illinois, 405 U.S. 645 (U.S. 1972) (parental rights are fundamental)
Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (clear-and-convincing standard for parental termination)
In re F.R.R., III, 193 S.W.3d 528 (Tenn. 2006) (must prove statutory ground and best interests by clear and convincing evidence)
In re Valentine, 79 S.W.3d 539 (Tenn. 2002) (termination standards)
In re Heaven L.F., 311 S.W.3d 435 (Tenn. Ct. App. 2010) (child’s best interest viewed from child’s perspective)
In re Carrington H., 483 S.W.3d 507 (Tenn. 2016) (appellate review and clear-and-convincing duty of appellate court)
In re Bernard T., 319 S.W.3d 586 (Tenn. 2010) (heightened review in termination cases)
In re Kaliyah S., 455 S.W.3d 533 (Tenn. 2015) (statutory grounds requirement)
Nash-Putnam v. McCloud, 921 S.W.2d 170 (Tenn. 1996) (allowing abuse is egregious and supports termination)
State v. Adams, 916 S.W.2d 471 (Tenn. Crim. App. 1995) (elements and meaning of criminal negligence)
In re D.L.B., 118 S.W.3d 360 (Tenn. 2003) (one proven statutory ground permits best-interest analysis)
In re M.A.R., 183 S.W.3d 652 (Tenn. Ct. App. 2005) (best-interest factors are non-exhaustive)
In re Audrey S., 182 S.W.3d 838 (Tenn. Ct. App. 2005) (weight/relevance of best-interest factors)