# FILED
February

5, 1997 Cecil W. Crowson Ap pellate Cou rt Clerk BARBARA GATLIN, ) ) Petitioner/Appe llant, ) ) VS. ) Appeal No. ) 01-A-01-9607- JV-00311 STATE OF TENNESSEE ) DEPARTMENT OF HUMAN ) SERVICES, ) Davidson Juvenile ) No. 09-47-86 Respondent/Appell ee. ) ) IN THE MATTER OF: ) ) FELICIA GATLIN, ) a child under the age of 18. )

COURT OF APPE ALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE
APPEALE D FRO M THE J UVENI LE COU RT OF D AVIDSO N COU NTY AT NASHVILLE, TENN ESSEE THE HONORABLE ANDREW J. SHOOKHOFF, JUDGE

KATHLEEN G. MO RRIS P. O. Box 1280 91 Nashvil le, Tennessee 37212 Attorney for Petitioner/Appe llant CHARLES W. BURSON Attorney Gen eral and Repor ter SUE A. SHELDO N Assistant Attorney Gener al Cordell H ull Buildi ng, 2nd Floor 426 5th Avenue N orth Nashvil le, Tennessee 37243- 0499 Attorney for Respondent/Appell ee

REVERSED AN D REMAND ED

BEN H. CAN TRELL, JUDGE
CONCUR: TODD, P.J., M .S. LEW IS, J.- 2 - 

## O P I N I O N

The Juvenil e Court of Davidson County terminated Ba rbara Gatlin’s parental right s resp ecti ng he r ten year o ld da ught er, Fe licia . Bec ause we find thatthe record does not contain clear and con vincing evidence of abandonment, we reverse.

I.

The United States Consti tution protects a parent’s fundamental right to the care and custo dy of his or her children. Stanley v. Illinois , 405 U.S. 645, 92 S .Ct. 1208, 31 L.Ed.2d 551 (1972). T he Tennes see Co nstit ution p rovi des thesame protection. Nale v. Robe rtson , 87 1 S.W.2d 674 (Tenn. 1994). This ri ght continues until the parent consents to rel inquish i t, abandons the chi ld, or forfeits t he right by
some conduct that substantially harms the chil d. O’Danie l v. Messier , 905 S.W.2d 182 (Tenn. App. 1995). The par e nt’s conduct al lowingthe state to ter minate the parent-chil d relationshi p must be establi shed by cl ear and convi ncing ev idence. Id.

This case involves aclaim that Ms. Gatlin abandoned F elicia. U nder the statutesthen in effect, a parent was deemed to have aband oned her child when she wilfully failed to visit or wil fully failed t o support or make reasonable paymen ts toward the child’s support for four conse cutive months im media tely preceding the commencementof the action seeki ng an order of abandonment. See Tenn. Code Ann. § 37-1-102(b) (1)(1994 Supp.) . The petition to terminate Ms. Gatlin’s pa rental rights w as filed on November 27, 1995.1 DHS did mak e some attempts to co ntactMs. Gatl in, but by July of 1995 t he Department had decided to se ek a term ination of he r par enta l rights. W e do not e xpr ess an o pinion abo ut wh ether DHS’s efforts sat isf ied t he “di li gence” re quir ed by the st atut es. - 3 - II.

The recor d shows that Ms. Gatli n has a histor y of drug add iction. In 1993 she placed her

four children with other members ofher family an d lived her e and there in a series of tem porary arra ngemen ts. She t estifi ed that she was on d rugs and did not want

her kids to be around her w hen she was in that conditi on.

In 19 94, the Ju venile C ourt of Davi dson County, on the petition of Felicia’s aunt with whom Felic ia had be en staying , found her to be dependent and neglected and placed her i n her aunt’s c ustody. In March of 1995, Felicia came into contact with the Departmentof Human Servi ces (DHS) when she ran away from her aunt’s home. Ms. Gatl in contacted the juvenile court and DHSbutwas told that without a job or a place to live, there was nothing that she could do to regain custody of Felicia. She made no other att empts to contact the child; neither did DHS contact her. 1

After

the M arch 1995 incident, DHS took action to provide tempo rary shelter for the child and on May 5, 1995 formally took custod y. Feliciawas placed in
a foster home wi th a woman w ho req uested custody because she lear ned about Felicia’s sit uati on from a fr iend. In September of 1995 Feli cia saw her mother in a housing project w here Felici a lived i n her foster home. The mother and child v isited fora brief time and M s. Gatlin g ot the foster mother’s telephone numbe r. Ms. Gatlin called her daughter

frequently

and asked the foster

mother if she coul d visit the child. The foster mother deni ed Ms. Gatlin the right to visit and referred her to DHS. The foster mother did, however, g et the impression that the mo ther and child loved each other.- 4 - Ms. Gatlin spent the month of Novem ber in jail on an ass ault cha rge broughtby her boyfriend. W hile in jail she attended a drug treat ment program , and at the time of the hearingbelow (F ebruary 15, 1996), she had been tested for dru gs three time s with n egat ive results. She had gotten a job (the day bef ore the hearing) and was seek ing a second job.

We think the proof fails toshow that M s. Gatlin w ilfully fail ed to visi t or wilfully failed to support

Felicia for

the four month period pri or

to November

27, 1995. Adm itte dly, Ms. Gatlin’s conduct since 1993 has been worthy of condemnation. She lived a life dominated by drugs and s everely

neglected her children. B ut the law recogniz es a difference between neglect and abandonment. Neglect may result in a termination of parental rights, but onlywhen it per sists for more than six mont hs after the child is removed from the home and there i s little l ikelihood that the condition can be remedied at an early dat e. See Tenn. Code Ann. § 37-1-113(g)(3). W hether Ms. Gatlin’s parental ri ghts may yet be terminated under this prov ision remains

to be seen.
However, in September of 19 95 Ms. Gatlin and Felicia met by chance in the project w here Felici a lived. After that chance e ncounter Ms. Gatlin tri ed to visit her daughter, but wastold that she s hould proceed thr ough DHS. She testified that she did not contact

DHS because s he had been told previously that she could not get her daughter back

unless she had a home and a job. She did telephone her daughter. During the month of November , Ms. Gatli n was in jail. The proof is not clear and convincing that Ms. Gatlin wilfully failed to visit her daughter.

We think the proof also f ails to establish that Ms. Gatlin wilfully failed to support Felicia for

that same four

month period. Ms. Gatli n testified that s he had no
mon ey, and there is n o proof to the contr ary. An i nference might bedrawn that she had enough resources to live and sup port her drughabit, but she t estified that she was living w ith someone else. An equally logical inference could be drawn that that- 5 -

person was

providi ng her suppor

t. In any event, it is understandable that she could not support her child during the mon th of November while she was in jail.

The judgment of thecourt below is reversed and the cause is remanded to the Juvenile Court of Davidson C ounty for further proceedings

. Tax the costs on appeal to the State.

_____________________________ BEN H. CAN TRELL, JUDGE

CONCUR:

_______________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SECTION

_______________________________ SAMUEL L. LEWIS, JUDGEIN THE COURT OF APPEALS OF TEN NESSEE MIDDLE SECTION AT NASHVILLE

BARBARA GATLIN, ) ) Petitioner/Appe llant, ) ) VS. ) Appeal No. ) 01-A-01-9607- JV-00311 STATE OF TENNESSEE ) DEPARTMENT OF HUMAN ) SERVICES, ) Davidson Juvenile ) No. 09-47-86 Respondent/Appell ee. ) ) Reversed IN THE MATTER OF: ) and ) Remanded FELICIA GATLIN, ) a child under the age of 18. ) 

### J U D G M E N T This cause came on to be heard upon the re cord on appeal from t he Juvenile Court of Dav idson County , briefs and arg ument of counsel; upon consideration whereof, thi s Court is of the opinion that the judgment of the t rial court should be reversed.

In accordance w ith the opinion of the Court filed herein, it is, therefore, order ed and decreed by this Court

that the judg ment is reversed. The cau se i s remanded to the Juvenile Court of Davidson County for any furth er proce edin gs nece ssary a nd f or th e col lect ion o f co sts a ccrue d bel ow.

Costs of this ap peal are taxed against theState of Tennessee. ENTER _______________________.

_________________________________ HENRY F . TODD, PRESID ING JUDGE MIDDLE SECTION

_________________________________ SAMUEL L. LEWIS, JUDGE

_________________________________ BEN H. CAN TRELL, JUDGE