# FILED
October 2, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE C OURT O F APPE ALS AT KNO XVILLE

IN THE MATTER

OF: ) HAMILTO N CHANCERY ) C.A. NO. 03A01-9712-CH-00536 The adoption of ) ) DAMON ALAN KR ATOCH VIL, ) ) A Minor, ) ) by ) ) ) JAMES L. COONE

and SON JA ) COONE, ) HON. R. VANN OWENS ) CHANCELLOR Petitioners-Appe

llees )

) vs. ) ) ) DANNY ALAN KRATOCHVIL , )

) Respondent-Appe

llant ) AFFIRMED AND REMANDED

BRUCE H. GUTHRI

E, II, Cha ttanooga, for A

ppellant.
GLENNA M. RAME

R, Chattanooga, f

or Appellees.2 O P I N I O N
McMurr ay, J.
In this adoption case, Danny Alan Kratochvil (responde nt) appeals the trial court's order terminating his parental rig hts regarding

his son, Damon Alan Kratochvil. The biologi cal mother's parental rights were terminated by default judgment, and she is not a par ty to this appeal. We affirm the judgment of the trial court.

This action was originated by the filing of a "petition for termination of parental rights and adoption" by James L. Coone and Sonya S. Co one (petitioners). Mrs. Coone is the biological mother's half-sister. We note at the outset that the trial court 's final order does not address the petitioners'

request for

adoption of Damon, but only terminatesthe re spond ent's paren tal ri ghts. In the interest

of judicial efficiency and economy , however, wewill treat this action as an interlocutory appeal pursuant to Rule 9 of the Tennessee Rules of Appellate Procedure.
Respondent raise

s several issues f

or our review, su

mmarized as follows :
1. Did

the trial court err in findingthat the responde nt "abandoned"

his son, as that term is statutorily defined? 2. Was the respond ent's constitutional rig ht to due process

violated in this cas

e by the termin

ation of his paren

tal rights?
Our standard of r

eview of this case

is provided in T.C.A . § 36-1-113 (c), which states: Termination of parental or guardianship rights must be based upon: (1) A finding by the

court by clear and convincing evidence that the g rounds for termination or [sic: of] parental or guardianship rights have been established; and (2) That

terminati on of the par ent's or guardian's rights is in the best interests of the child.3

Thus, we review this case to determine if the stat uto ry requirements for termination of parental rights have been demonstrated by clear and convincing evidence.

The trial court found the following facts, all of which are fully supported by the evide

nce in the record. Damon was born on October 13, 1995. Mrs. Coone, who is a nurse, checked on the new parentsshortly after Damon was born. She staye d the entire day

to take care of the

new baby. M

rs. Coone testified that she

didnot see res pon den t ho ld h is s on t hat ent ire fir st d ay. T he s econ d da y, Mrs. Coone returned to the hospital and took care of the baby whi

le the parents watched television.

The fourth day after Damon's birth, the mother called Mrs. Coone and a sked if she woul d help take care of him. Mrs. Coone went to the parents' apartmen t, which, acco rding to the trial court's findings of fact, "was filthy. The floor was littered with dogfeces and dog urine. There were dirty sanitary napkins on

the floor. The toilet had overflowed and wet the bathroom rugs, which had been tossed into

the tub. There we

re moldy dish

es in the sink. The f

ront yard w

as littered with tr

ash that never made it to th

e dumpster. Sheets

hung over thewindows. The baby's room was in total dis arra y. " Mrs. Coone discovered that Damon had not been bathed since he had left the hospi tal
. The next day, the mother called Mrs. Coone andasked her if she would take the baby home with her.

A pattern quickly emerged whereby Mrs. Coone accepted the role of Damon's primar y caretaker. She too k car e of h im v irt ual ly ev ery da y, and also took him for his well-baby

checkups. She testified that one day the mother called her during a heated argument with the respondent. The baby was crying and Mrs. Coone heard the respondent y ell "if this kid doesn't shut up, I'm goi

ng to knock his [expletive deleted] head through the wall." Mrs. Coonerushed over to the apartment and found respondent in a rage. She took Damon home with her.4

Mrs. Coone testified that she co nstantly gave her half-sister money for necessities for Damon, andthat she "never saw either one of [the parents] purchase anything for [Damon]." She had the baby on his first Thanksgiving and Christmas and neither parent bought him a Christmas g ift.

On December 30, 1995, Mrs. Coone visited the parents' apartment and discover ed that Damon had numerous bruises on his face. She took him to the emergency room, wher e the ER physician diagnosed "multiple con tusions, force suspect ed, physical abuse." Dr . Susan Haye s, Damon's pediatrician, testified that his injuries were not consistent with the various explanations the parentsprovided as to how the injuries occurred. The parents initially said that their dog had stepped
on Damo n, but then subsequently changed their story to other various accidental causes . Th e respondent

stated that he did not take his son to the doctor because he was afraid they would think it was a case of child abuse.

The Department of Children's Services (DCS) took temporary protective custody of Damon shortly after his injuries were discovered. On January 2, 1996, the paren

ts voluntarily

consented to temporarily

place Damon with the Coone family . On February 19, 1996, the Hamilt

on County Juvenile Court ordered that temporary legal custody of Damon be placed with the Coones. The respondent was c

harged with, an

d eventually

pled guilty

to, child abuse an

d neglect.

Melanie Moyer, the DCS case manager in charg e of Damon's case, testified that from March 1996 through the end of 1996, re spondent never m ade a request to her that custody of Damon be returned to him. A visitation sc

hedule for respondent was worked out with the Coones a

nd the DCS. Mrs. Coo ne testified that "I would say 90 perce nt of the time" the parents would not show up fo r visitation and that when they did, neither one wanted

to feed or change their son's diaper, and that5

they stayed for only short periods of time. Mrs. Coone testified t hat on one occasion during visitation respondent offered to let her have the baby if she would buy him a new Bronco truck.

Mrs. Coone kept detailed visitation records. These records show that between April 24, 1996 and June 11, 1996, re

spondent visited his

child four times, for a total of two hours. Between June 11 and July 29, respondent missed five scheduled visitations and visited Damon twice for a total of 65 minutes . He did not show up for any scheduled visitat

ions during the mon

ths of August, September

or October 1996. Between November 5 and December 3,respondent had visitation on five occasions.

It is undisputed that th

e respondent did n

ot pay any child support to

the Coones during 1996. Respondent

testified that he offered g ifts of es sential items and toys to the Coones, but that they
re fusedthem, saying they were not necessary. Mrs. Coone testified that she never rec eived an y support from the respondent.

The Coones filed their petition on December 6, 1996. After hearing all the evidence, the trial court found t hat "So nja and Ji m Coone were very credible witnesses and their testimony was supported by the testimony of other witnesses." The c ourt reached "the inescapable conclusion that [respondent] physically injured his son and he falsely denied his actions." The trial court held:
This Court finds the evidence clear and convincing that the na tural father abandoned

his child wi thin the meaning of the law and, further, the evidence was clear and convincing that it is in the best interest of the minor child, Damon Alan Kratochvil, that the parental rights of Danny Alan Kratochvil be te rminated.
Termination of parental rig hts is governed by

T.C.A. § 36-1-113,

which provides in

relevant part:6

(g) Termination of pa

rental or guar

dianship rights may be based upon any of the following grounds: (1) Abandonment by the parent or guardian, as def ined in § 36-1-102, has occurred; T.C.A. § 36-1-102(1)(A) provides the followi ng definition of "abandonm ent":
"Abandonment"

means, for purposes of terminating th e parental or g

uardian rights of parent(s) or guardian(s) of a c hild to that child in or der to make that c

hild available for a

doption, that: (i) For a period

of four (4) consecutive months immediately preceding the filing of a proceeding o r pleading to termi nate the parental rights of the parent(s) or guardian(s)

of the child

who is the subject of the petition for termination of parental right s or adoption, that the parent(s) or guardian(s) either have willfully failed t o visit or have willfully failed to support or make reasona ble paym ents toward the support of the child;
* * * * (B) For purposes of this subdivision (1), "token supp ort" means that th

e support, under the circum stances o f the indiv idual case, is insigni ficant given the parent's means; (C) For purposes of this subdivision (1), "token visitation" means that the visitation, under the circumsta

nc es of the individual case, constitutes nothing more than perfunctory

v isitatio n or visitation of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child; (D) For purposes of this subdivision (1), "willfully f ailed to support" or "wi

llfully failedto make reasonable payments toward such child 's support" means that, for a periodof four (4) consecu tive m onths, no monetary support was paid or that the amount of support pa

id is token support; (E) For purposes of this subdivision (1), "willfully failed to visit" means the willful failure, for a period of

four (4) con secutive m onths, to visit or en gage in more than token visitation; (F) Abandonment may not be repented of by resu ming visitation or support subsequent

to the filing of any petition seeking to terminate parental or guardianshi

p rights or seeking the adoption of a child; and (G) "Abandonment" does not have any ot

her definition exc

ept that which is se

t forth herein, it being the intent of the general assembly to establish the only grounds for abandonment

by statutory

definition. Specif

ically, it sha

ll not be requir

ed that a parent be shown to have evinced a settled purpose to

forego all par

ental rights

and responsibilities in order for a determination of abandonment to be made. Decisions of any court to the contrary are hereby legislatively

overruled;7

We find that the rec

ord is replete with clear and convincing evidence that the respondent has abandoned his

son, as that term is statutorily defined. It is clear that respondent eng aged in mere perfunctory

and token visitatio

n with Damon during the nine months prior to the filing of the Coones' petition. Responde

nt's efforts, if

any, regarding financial support of Da mon during his first year were minimal at best. Most importantly, it is abundantly clear that returning Damo n to respondent 's custody

would be substantia

lly detrimen

tal to him, and that hi

s best interests are served by termi natin g resp onden t's pa renta l righ ts and allow ing th e peti tion ers to adopt him. In this regard, Dr. Hayes testified as follo

ws:
Q: Oka y. I n your

opinion is [Damon] Alan Kratochvil very

bonded to Sonja and

Jim Coone? A: Abs olu tel y. They're his — if they'

re not his parents

in fact, they're his psycholog ical parents. Q: Will this child suffer psychological harm if that bond is interrupted? A: I believe so. Further, Damon's appointed guardian ad litem, after conducting an independent investigati on and h earing all the testimony presented at trial, recommended that it would be in Dam on's bes t interest that respondent's parental rights be terminated. We concur with the trial court's finding that respondent

has abandoned his son, and w ith its conclusion that his parental rights should be terminated.

We now turn to respondent's constitutional arguments. Respondent first argues that he was denieddue process becaus e a "petition to se

t child visitation"

which he filed in

Hamilton County Juvenile Court was never heard. The respondent testified that he went to J uvenile Court several times in an attempt to

get visitation set, but that the clerk's office "gave him the run around." There8

is nothing in the record

to indicate that the petition, filed September 10, 1996, was ever br ought to the Juvenile Court's attention.

We note two pertinen

t facts regar

ding respondent

's petition in Juveni

le Court. First, on the date respondent filed his petition, September 10, he was in the middle of a thr ee-month period i

n which he missed every

scheduled visitat

ion with Damon. Second, the record contains a motion for visitation filed by respondent in Hamilton County Chancery Court on January 30, 1997, which was promptly addressed and heard by

the court some

ten days later, and disposed of by ag reement of the parties. Under these cir

cumstances, it is

clear that respondent was afforded a full and fair hearing on his request for visitation, and his due process right was not violated.

Sec ond ly, in a rather vag ue argument, respondent contends that his constitutional ri ghts were violated because the DCS did not prepare a foster care plan for Damon as contemplated by T.C.A. § 37-2-403(a)(1), which requires that "[w]ithin thirty (30) days of the date of foster care placemen

t,
an agency shall prepare a plan for e ach child in its foster care." However, in this case a foster care plan was not

required under the terms of the statute, which defines "foster care" at T.C.A. § 37-2- 402(5) as follows :
"Foster care" means th

e temporary

placement of a c

hil d in the custody of the department

of children's services or any agency , institution or home, whether public or private, for care outside the home of a parent or relative (by blood or marriage) of the child , whether such pla cement is by court

order, voluntary placement agreement,

surrender of parental rights or otherwise. Foster careshall cease

at such time as the child is

placed with

an individual or individuals for the purpose of the child's adoption by the individual or individuals or at such time as a petition to adopt is filed, whichever occurs first, or at such time as the child is returned to or placed in the care of a parent of relative . [emphasis added].
The DCS case worker testified that she did not prepare a foster care p

lan in this case becaus

e "[a] foster care plan is prepared if the child is in State's custody. B utsince a relativ

e or when9

temporary

custody is granted to relatives, the n a foster pla

n is not do ne." Thus, r espondent 's argument regarding a foster care plan is without merit.

In conclusion

, we find the trial

court's decisio

n terminating re

spondent's pare

ntal rights

is supported by clear and

convincing evidence in the record, and affirm the jud gmen t in its ent ire ty. The case is r ema nde d fo r su ch fu rth er ac tio n as may b e nec ess ary. Costs on appeal are assessed to the appellant.

_______________________________ Don T. McMu rray, Judge CONCUR:

___________________________________ Houston M. Goddard, P residing J udge

___________________________________ William H . Inman, Seni or JudgeIN THE C OURT O F APPE ALS AT KNO XVILLE

IN THE MATTER

OF: ) HAMILTO N CHANCERY ) C.A. NO. 03A01-9712-CH-00536 The adoption of ) ) DAMON ALAN KR ATOCH VIL, ) ) A Minor, ) ) by ) ) ) JAMES L. COONE

and SON JA ) COONE, ) HON. R. VANN OWENS ) CHANCELLOR Petitioners-Appe

llees ) )

) vs. ) ) ) ) DANNY ALAN KRATOCHVIL , ) ) Respondent-Appe

llant ) AFFIRMED AND REMANDED

JUDGMENT This appeal came on to b e heard upon the record from the Chancery Court of Ha milton Cou nty, briefs and

argument of counsel. Upon consideration thereof, this Court is of opinion that there was no rev

ersible error in

the trial court. We affirm the judgment

of the trial court. The case is remanded for such further action as may be necessary. Costs on appe al are assessed to the appellant.

PER CURIAM