Can Tennessee terminate a parent's rights under Tenn. Code Ann. § 36-1-113(g)(6) for a long criminal sentence imposed while the child was under 8, even after the parent has finished the sentence and been released?

Plain-English summary

Tennessee terminates parental rights only after a court finds clear and convincing evidence of (1) a statutory ground and (2) that termination is in the child's best interests. In re M.L.P., 281 S.W.3d 387, 392 (Tenn. 2009). Tenn. Code Ann. § 36-1-113(g)(6) is one of the statutory grounds. It applies when "[t]he 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."

Senator Bell asked whether that ground could be used after the parent has finished the sentence and been released, or whether it only applies while the parent is still incarcerated. The AG said the ground does not vanish on release. The statute's text requires only that the parent has been confined under a sentence of 10 or more years and that the child was under eight when the sentence was entered. The text does not say the parent must still be in custody when the petition to terminate is filed. The Tennessee Court of Appeals reached the same conclusion in In re D.M., No. M2009-00340-COA-R3-PT, 2009 WL 2461199, at *3 (Tenn. Ct. App. 2009): the statute "does not contain limiting language requiring the parent actually to be incarcerated when the termination petition is filed," and the ground still exists "if the parent may actually serve less than the ten-year sentence or [if] the termination is not effectuated during the parent's incarceration."

Termination is still a two-step inquiry. Establishing the (g)(6) ground does not end the case. The petitioner must also prove that termination is in the child's best interests by clear and convincing evidence. A parent who is out, rehabilitated, and demonstrating an ability to parent may defeat the best-interests prong even when the (g)(6) ground is technically met.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What does Tenn. Code Ann. § 36-1-113(g)(6) require?
Three textual elements: (1) the parent has been confined in a correctional or detention facility of any type by court order as a result of a criminal act; (2) the sentence is ten or more years; and (3) the child was under eight years of age when the sentence was entered.

Does the parent have to still be in custody when the petition is filed?
No. The AG concluded the statute focuses on the historical fact of the sentence and the child's age at sentencing, not on the parent's current incarceration status. The Court of Appeals adopted that reading in In re D.M.

Does it matter if the parent serves less than ten years?
No. The statute looks to the length of the sentence imposed, not the time actually served. Early release on parole, time credits, or sentence reduction does not eliminate the ground.

Is the (g)(6) ground enough by itself to terminate parental rights?
No. Even if the statutory ground is established, the petitioner must separately prove by clear and convincing evidence that termination is in the child's best interests (In re M.L.P.). The best-interests analysis considers a range of factors including the parent's current ability to provide a safe home, the relationship between parent and child, and the child's needs.

Why does the statute focus on a 10-year sentence with a young child?
The legislature targeted situations where a long sentence imposed during the child's earliest years would have severed or prevented the formation of a meaningful parent-child relationship. By the time the parent is available to parent, the child has typically formed primary attachments elsewhere. The legislative judgment is that a sentence of that magnitude during that window is significant enough to count as a termination ground, subject still to the best-interests check.

Background and statutory framework

Tennessee's termination of parental rights statute, Tenn. Code Ann. § 36-1-113, lists more than ten distinct grounds in subsection (g), including abandonment, severe child abuse, persistent conditions, and incarceration grounds. The (g)(6) incarceration ground is narrower than the broader "abandonment" grounds at (g)(1) and the persistent-conditions ground at (g)(3); it focuses on the specific historical event of a long sentence imposed during the child's youngest years.

Termination is a two-step inquiry. As In re M.L.P., 281 S.W.3d 387, 392 (Tenn. 2009), explains, the petitioner must prove both a statutory ground and that termination serves the child's best interests, each by clear and convincing evidence. The interaction between the (g)(6) ground and the best-interests prong is where parental rehabilitation post-release does its work.

Citations

• Tenn. Code Ann. § 36-1-113(g) (statutory grounds for termination)
• Tenn. Code Ann. § 36-1-113(g)(6) (10-year sentence; child under 8)
• In re M.L.P., 281 S.W.3d 387 (Tenn. 2009) (two-step termination framework)
• In re D.M., No. M2009-00340-COA-R3-PT, 2009 WL 2461199 (Tenn. Ct. App. 2009) (ground applies after release)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-033.pdf

Original opinion text

April 12, 2011
Opinion No. 11-33
Termination of Parental Rights Under Tenn. Code Ann. § 36-1-113(g)(6)

QUESTION

Can Tenn. Code Ann. § 36-1-113(g)(6) be used to terminate the parental rights of a parent who has already served his or her sentence and been released?

OPINION

Yes, Tenn. Code Ann. § 36-1-113(g)(6) authorizes the termination of parental rights even if the parent has already served his or her sentence and been released.

ANALYSIS

In order to terminate parental rights, a court must find clear and convincing evidence of two separate elements. In the Matter of M.L.P., 281 S.W.3d 387, 392 (Tenn. 2009). First, the petitioning party must prove one of the statutory grounds for termination enumerated in Tenn. Code Ann. § 36-1-113(g). Id. Second, the petitioning party must show that termination is in the best interests of the child. Id.

You have questioned the use of the statutory ground provided in Tenn. Code Ann. § 36-1-113(g)(6) to terminate a parent's rights when a parent is no longer incarcerated. This statute provides for termination of parental rights when:

[t]he 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.

Tenn. Code Ann. § 36-1-113(g)(6).

The Tennessee Court of Appeals has previously held that this statute applies regardless of whether the parent has already been released from incarceration when the petition to terminate parental rights is filed. In the Matter of D.M., No. M2009-00340-COA-R3-PT, 2009 WL 2461199 (Tenn. Ct. App. 2009). As the Court noted, the clear language of this statute does not contain limiting language requiring the parent actually to be incarcerated when the termination petition is filed. Id. at *3. Rather, the ground exists to terminate parental rights if the parent has been confined in a facility of any type under a criminal sentence of ten years or more that was entered when the child was under eight years of age. Id. It does not matter if the parent may actually serve less than the ten-year sentence or that the termination is not effectuated during the parent's incarceration. Id. Accordingly, it is our opinion that Tenn. Code Ann. § 36-1-113(g)(6) authorizes the termination of parental rights even if the parent has already served his or her sentence and been released.

ROBERT E. COOPER, JR.
Attorney General and Reporter

BARRY TURNER
Deputy Attorney General

DIANNE STAMEY DYCUS
Deputy Attorney General

Requested by:
Honorable Mike Bell
State Senator
302 War Memorial Building
Nashville, TN 37243