1

FILED

September 29, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

IN THE MATTER OF: ) C/A NO. 03A01-9611-JV-00369

 )

MICHAEL LYNN SHIPLEY )

BEVERLY ANN SHIPLEY )

TIFFANY ALEITHA SHIPLEY )

FRANK MICHAEL SHIPLEY, )

Children under the age)

of eighteen years, )

 )

 )

 )

STATE OF TENNESSEE )

DEPARTMENT OF ) APPEAL AS OF RIGHT FROM THE

CHILDREN’S SERVICES, ) GREENE COUNTY JUVENILE COURT

 )

Petitioner-Appellee, )

 )

 )

 )

v. )

 )

 )

 )

 )

RALPH MICHAEL SHIPLEY, )

 ) HONORABLE JAMES D. CARTER,

Defendant-Appellant. ) JUDGE

For Appellant For Appellee

T. WOOD SMITH JOHN KNOX WALKUP

Greeneville, Tennessee Attorney General & Reporter

Nashville, Tennessee

DOUGLAS EARL DIMOND

Assistant Attorney General

General Civil Division

Nashville, Tennessee

O P I N I O N

AFFIRMED AND REMANDED Susano, J.
1

Chapter 532, Public Acts of 1995, effective January 1, 1996, as amended

by Chapter 1054, Public Acts of 1996, effective May 15, 1996.

2

The children’s mother, Alice Shipley, had earlier surrendered her

parental rights.

2

This is a termination of parental rights case under the

new Adoption Code.1 Following a bench trial on July 17, 1996,

the court terminated the parental rights of Ralph Michael Shipley

(“Father”)2 with respect to his minor children, Michael Lynn

Shipley (DOB: 9/20/87), Beverly Ann Shipley (DOB: 10/28/88),

Tiffany Aleitha Shipley (DOB: 3/29/90), and Frank Michael Shipley

(DOB: 2/3/91). Father appealed. He argues that the evidence

preponderates against the trial court’s determination that

multiple grounds existed for the termination of his parental

rights.

I. Standard of Review

In this non-jury case, our review is de novo upon the

record of the proceedings below; but the record comes to us with

a presumption of correctness that we must honor “unless the

preponderance of the evidence is otherwise.” Rule 13(d),

T.R.A.P. “The scope of review for questions of law is de novo

upon the record of the [trial court] with no presumption of

correctness.” Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn.

1997).

II. Law and Analysis

We commence our analysis by observing what is
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well-established: a parent has a fundamental right to the care,

custody and control of his or her child. Stanley v. Illinois,

405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). However, it

is likewise clear that this right is not absolute; it may be

terminated if there is clear and convincing evidence justifying

such termination under the applicable statute. Santosky v.

Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

The trial court found -- expressly predicating its

findings on clear and convincing evidence -- that it was in the

subject children’s best interest to terminate Father’s parental

rights and to award their custody to the State of Tennessee,

Department of Children’s Services. It based its decision to

terminate, again by a finding of clear and convincing evidence,

on three basic grounds:

That [Father] has abandoned [the] child[ren]

in that [he] has willfully failed to visit or

to engage in more than token visitation for

four (4) consecutive months immediately

preceding the filing of this petition prior

to incarceration;

That the child[ren] [have] been removed by

order of a court for a period of six (6)

months; the conditions which led to the

removal of [the children] still persist;

other conditions persist which in all

probability would cause the child[ren] to be

subjected to further abuse and neglect and

which, therefore, prevent the children’s

return to the care of [Father]; there is

little likelihood that these conditions will

be remedied at an early date so that [the

children] can be returned to [Father] in the

near future; and the continuation of the

legal parent and child relationship greatly

diminishes the children’s chances of early

integration into a stable and permanent home;
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That, prior to incarceration, [Father’s]

conduct was such as to show a wanton

disregard for the welfare of his children;

The statutory authority for the grounds relied upon by

the trial court can be found in the Code, as follows:

T.C.A. § 36-1-113

(a) the chancery and circuit courts shall

have concurrent jurisdiction with the

juvenile court to terminate parental or

guardianship rights to a child in a separate

proceeding, or as a part of the adoption

proceeding by utilizing any grounds for

termination of parental or guardianship

rights permitted in this part or in title 37,

chapter 1, part 1 and title 37, chapter 2,

part 4.

* * *

(c) Termination of parental or guardianship

rights must be based upon:

(1) A finding by the court by clear and

convincing evidence that the grounds for

termination or parental or guardianship

rights have been established; and

(2) That termination of the parent’s or

guardian’s rights is in the best interests of

the child.

* * *

(g) Termination of parental or guardianship

rights may be based upon any of the following

grounds:

(1) Abandonment by the parent or guardian, as

defined in [T.C.A.] § 36-1-102, has occurred;

* * *

(3)(A) The child has been removed from the

home of the parent or guardian by order of a

court for a period of six (6) months and:

 (i) The conditions which led to the child’s

removal or other conditions which in all

reasonable probability would cause the child

to be subjected to further abuse or neglect

and which, therefore, prevent the child’s

return to the care of the parent(s) or

guardian(s), still persist;
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 (ii) There is little likelihood that these

conditions will be remedied at an early date

so that the child can be returned to the

parent(s) or guardian(s) in the near future;

and

(iii) The continuation of the parent or

guardian and child relationship greatly

diminishes the child’s chances of early

integration into a stable and permanent home.

* * *

T.C.A. § 36-1-102

As used in this part, unless the context

otherwise requires:

(1)(A) “Abandonment” means, for purposes of

terminating the parental or guardian rights

of parent(s) or guardian(s) of a child to

that child in order to make that child

available for adoption, that:

* * *

 (iv) A parent or guardian is incarcerated at

the time of the institution of an action or

proceeding to declare a child to be an

abandoned child, or the parent or guardian

has been incarcerated during all or part of

the four (4) months immediately preceding the

institution of such action or proceeding, and

either has willfully failed to visit or has

willfully failed to support or make

reasonable payments toward the support of the

child for four (4) consecutive months

immediately preceding such parent’s or

guardian’s incarceration, or the parent or

guardian has engaged in conduct prior to

incarceration which exhibits a wanton

disregard for the welfare of the child.

* * *

(C) For purposes of this subdivision (1),

“token visitation” means that the visitation,

under the circumstances of the individual

case, constitutes nothing more than

perfunctory visitation or visitation of such

an infrequent nature or of such short

duration as to merely establish minimal or

insubstantial contact with the child;

* * *

(E) For purposes of this subdivision (1),

“willfully failed to visit” means the willful

failure, for a period of four (4) consecutive
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months, to visit or engage in more than token

visitation;

* * *

A. Lack of Visitation

At the time of the hearing below, Father was serving a

sentence of imprisonment at the Brushy Mountain State Prison in

Petros. He had been incarcerated continuously since December 8,

1994, and was incarcerated when the State filed its petition to

terminate on May 3, 1996.

The trial court found that Father had “willfully failed

to visit [his] children,” see T.C.A. § 36-1-102(1)(E), “for four

(4) consecutive months immediately preceding [his]

incarceration.” T.C.A. § 36-1-102(1)(A)(iv). In this

connection, the individual who supervised Father’s visitation

during the period from August 1, 1994, to December 8, 1994,

testified as follows:

Q. Ms. Woody, you said that there had been

some visits after the children came into your

care, the Department’s care, in most recent

time, and that he slept during a couple of

those; right?

A. Yes.

Q. How long did those visits last?

A. The ones that we were attending, there was

[sic] two in August and two in September. 

The one in August, of course, was during the

summertime when the kids were out of school.

Q. So those would have been three hours?

A. Three hours.
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Q. And the others would have been two hours?

A. Two hours, yes.

Q. And which two did he fall asleep during?

A. I’ll tell you, I believe it was the first

-- first two, but I will look. Let’s see,

8/1 of ‘94; 8/1 of ‘94, visit held at park,

12:00 to 3:00 p.m.; Mr. Shipley attended,

however, he did sleep on the picnic table for

most of the visit.

On 8/8/94, visit held at the park, 12:00 to

3:00 p.m. Again, Mr. Shipley did attend,

however, he did -- he did report he was tired

and slept on the picnic table for most of the

visit again.

* * *

Q. Okay. Go ahead.

A. Let’s see, the next one was 9/15 of ‘94,

visit held -- the last one was 9/29 of ‘94. 

The visit, again, held 3:00 to 5:00 p.m. He

did attend, however, laid on the table away

from the children. One of the children

approached him and asked him to come and

play, but he said he did not feel like it.

Q. Now, being the thorough case worker that

you are, I’m sure you inquired as to why he

was tired and sleepy during those August

visits; right?

A. Yes, I did.

Q. And what did he tell you?

A. He said he was not feeling well and that

his hip hurt.

Q. So basically, illness and a hip problem is

what he was complaining of, feeling ill?

A. Yes.

Q. And did you have any evidence that he was

not feeling poorly?

A. Anything that I observed or that someone

had told me?

Q. Anything you observed?

A. No.
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Q. And during the two September visits, you

stated that he remained away from the

children for part of that visit; is that

accurate?

A. Yes.

Q. And did you inquire about that?

A. Yes. He stated he was not feeling well.

Father did not dispute his inattention to the children

during these visits. He tried to justify his conduct by stating

that discs in his back were inflamed and were “putting pressure

on the nerves and I couldn’t hardly walk.” He “explained” his

failure to visit on other occasions during the critical fourmonth period by stating that he “was on the run” and “hiding

again” because new criminal charges had been placed against him

and he was trying to avoid capture.

The trial court pointed out that Father had not

mentioned a disc problem to Ms. Woody, the witness whose

testimony is quoted above. It is obvious from the transcript of

the trial judge’s remarks following the hearing that he did not

believe Father’s testimony with respect to his back problem. A

trial court is in the best position to assess the credibility of

witnesses; therefore, such determinations are entitled to great

weight on appeal. Massengale v. Massengale, 915 S.W.2d 818, 819

(Tenn.App. 1995); Bowman v. Bowman, 836 S.W.2d 563, 567

(Tenn.App. 1991). His second reason for not visiting -- because

he “was on the run” from law enforcement -- even if true, is a

problem of his own making. As such, it can hardly serve as a

legal basis for his failure to visit. He could have visited had

he chosen to do so; he chose not to.
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As described by Ms. Woody, Father’s visitation was

“perfunctory” in nature. See T.C.A. § 36-1-102(1)(C). It was

“token visitation” at best. Id.

The evidence does not preponderate against the trial

court’s findings regarding Father’s “willful[] fail[ure] to

visit.” See T.C.A. § 36-1-102(1)(E). Those findings show,

clearly and convincingly, that there was an “abandonment” of the

subject children by a failure to visit, such as to justify

termination under T.C.A. § 36-1-113(g)(1) and T.C.A. § 36-1-

102(1)(A)(iv).

B. Remaining Grounds for Termination

The trial court found two other bases for terminating

Father’s parental rights. It found clear and convincing evidence

of the basis for termination found at T.C.A. § 36-1-

113(g)(3)(A)(i)-(iii), and clear and convincing evidence of

“wanton disregard for the welfare of [his] child[ren]” prior to

his incarceration. See T.C.A. § 36-1-102(1)(A)(iv).

The subject children had been in the care of the State

since September 3, 1992. When placed in the State’s care, the

children were, approximately, ages 5, 4, 2, and 7 months. By the

time of the hearing below they were, respectively, approximately

ages 8, 7, 6, and 5. We believe that the continuation of the

parent and child relationship “greatly diminishes the

child[ren]’s chances of early integration into a stable and

permanent home.” See T.C.A. § 36-1-113(g)(3)(A)(iii). Their
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mother surrendered her parental rights prior to the hearing

below. Their father was in prison -- for the third time. He had

recently had a parole hearing, out of which came a recommendation

that parole consideration be continued for another year. If he

serves his full sentence, he will be released in March, 2000. 

With time off for good behavior, he would be released in the

middle of 1999. His parole is uncertain. The proof was clear

and convincing that the children in this case cannot rely upon

the availability of Father to provide them “a stable and

permanent home.” Id. There is “little likelihood” that the

unsavory conditions described below “will be remedied at an early

date so the child[ren] can be returned to [Father] in the near

future.” See T.C.A. § 36-1-113(g)(3)(A)(ii).

There was compelling evidence that prior to his

incarceration, Father had a drug and alcohol problem. In fact,

Father admitted that it was this problem that led to his violent

conduct toward his former wife -- the mother of these children --

which in turn prompted the trial court to place the children with

the State in 1992. There was also evidence that while undergoing

counseling for his drug and alcohol addiction or abuse, he was

still using these substances. His counselor recommended

inpatient treatment when he reported to her in the late winter of

1994 that he had passed out from drinking the night before. He

failed drug screens in July, 1993, May, 1994, and September,

1994. In the year before his incarceration, he resisted the

suggestion that he attend meetings of Alcoholics Anonymous. His

drug and alcohol counselor closed his case in December, 1994,

concluding that he was just “going through the motions.”
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The record even contains evidence from which one could

reasonably conclude that Father was still using drugs and abusing

alcohol in prison. When interviewed there on January 25, 1996,

Father was evasive about the subject. In response to the

interviewer’s comment -- that, of course, he wasn’t using these

substances in prison -- he said, “Well, who says I don’t.”

By his own admission, Father has engaged in criminal

conduct to the extent that he now finds himself in prison for the

third time. His most recent criminal activity took place while

he supposedly was trying to put his life in order so that he

could again have the care and custody of his children. This,

coupled with his drug and alcohol problems, is very significant

evidence that all of the conditions for termination set forth in

T.C.A. § 36-1-113(g)(3)(A)(i)-(iii) were shown in this case. All

of this conduct also shows “a wanton disregard for the welfare of

[his] child[ren]” prior to his incarceration. See T.C.A. § 36-1-

102(1)(A)(iv).

III. Conclusion

The evidence before us does not preponderate against

the trial court’s findings of fact supporting termination. The

evidence is clear and convincing that termination of Father’s

parental rights is in the best interest of the children. There

is also clear and convincing evidence of the three bases for

termination relied upon by the trial court.
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The judgment of the trial court is affirmed. Costs on

appeal are taxed to the appellant. This case is remanded to the

trial court for enforcement of the judgment and the collection of

costs assessed below, all pursuant to applicable law.

__________________________

Charles D. Susano, Jr., J.
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CONCUR:

________________________

Houston M. Goddard, P.J.

________________________

Herschel P. Franks, J.