IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

MARCH 8, 2001 Session

IN THE MATTER OF: DAKOTA JEAN HOOVER-CRAWFORD,

COLTON RAY THOMAS & DUSTY BRANDON THOMAS

STATE OF TENNESSEE, DEPARTMENT OF CHILDREN’S SERVICES v.

NIKI LYNN CRAWFORD THOMAS

Direct Appeal from the Juvenile Court for Cannon County

No. 847; The Honorable John B. Melton, III, Judge

No. M2000-01655-COA-R3-CV - Filed July 27, 2001

This is a suit for the termination of parental rights. The Appellee filed a petition to terminate the

Appellant’s parental rights to three of her minor children. Following a hearing, the Juvenile Court

of Cannon County entered an order terminating the Appellant’s parental rights. The Appellant

appeals the trial court’s order terminating her parental rights. For the reasons stated herein, we

affirm the trial court’s decision.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Juvenile Court Affirmed

ALAN E.HIGHERS,J., delivered the opinion of the court, in which W.FRANK CRAWFORD, P.J.,W.S.,

and HOLLY KIRBY LILLARD, J., joined.

Adam T. Dodd, Murfreesboro, TN, for Appellant

Paul G. Summers, Attorney General and Reporter, Elizabeth C. Driver, Assistant Attorney General,

for Appellee

Susan G. Cox, Murfreesboro, TN, Guardian Ad Litem

OPINION

I. Facts and Procedural History

The Appellant, Niki Lynn Crawford Thomas (“Ms. Thomas”), has three minor children,

Dakota Jean Hoover Crawford (d.o.b. May 29, 1992), Colton Ray Thomas (d.o.b. March 29, 1995),
1

 Ms. Th omas gav e birth to a fou rth minor child , Jessie Gwe n Thom as, on No vember 4 , 1997. 

2

 Mr. Th omas is the fathe r of Colton a nd Dusty. T he father of D akota is unkn own. 

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and Dusty Brandon Thomas (d.o.b. August 26, 1996) (“the children”).1

 On September 19, 1997, the

Appellee, State of Tennessee Department of Children’s Services (“DCS”), received a referral that

the children were being cared for by an eighteen year old half sister. Upon investigation, DCS found

the children alone in a filthy house. The family was in the process of being evicted, the water and

electricity had been turned off, and there was little means of support. DCS also noted that Ms.

Thomas had a history of drug use and prostitution. 

On September 25, 1997, DCS filed a petition in the Juvenile Court of Cannon County for

temporary custody of the children. On September 29, 1997, the trial court issued a protective custody

order placing the children in foster care with DCS. The children were ill when they were brought

into protective custody, and Dusty had not been treated for a broken leg. On October 7, 1997, Ms.

Thomas and her husband, Les Thomas (“Mr. Thomas”),2 pro se, signed a consent decree ordering

DCS to retain temporary custody of the children. The parties waived the preliminary and

adjudicatory hearings, and the consent decree was entered nunc pro tunc September 29, 1997. 

On October 9, 1997, a staffing was held to develop a plan of care for the children (“1997 plan

of care”). Despite verbal and written notice provided by DCS, Ms. Thomas was not present for the

staffing. A DCS caseworker discussed the plan of care with Ms. Thomas, and Ms. Thomas signed

the plan of care on February 6, 1998. DCS provided Ms. Thomas with a packet of written materials

explaining the grounds for termination of parental rights. A review hearing to assess compliance

with the plan of care was held on September 29, 1998. Ms. Thomas appeared pro se at the hearing.

The trial court found that Ms. Thomas was not in compliance with the statement of responsibilities

of the plan of care “in that she has not completed individual counseling to address family and

individual mental health issues, parenting training approved by Department of Children’s Services,

established nor maintained housing for the children, provided verification offinancial circumstances,

A & D evaluation/recommendation nor enrolled or attended AA/NA.” The trial court ordered the

children to remain in foster care. 

On October 13, 1998, a staffing was conducted to formulate another plan of care for the

children (“1998 plan of care”). The 1998 plan of care imposed the following requirements upon Ms.

Thomas:

1. Ms. Thomas will participate in treatment that may include the following: detox,

inpatient, outpatient, group, individual, and family counseling.

2. Ms. Thomas will enroll in a twelve step N/A program, obtain a sponsor, and

attend ninety meetings in ninety days. Ms. Thomas must provide written verification

of attendance to all meetings.

3. Ms. Thomas will remain free of all opiates and mood-altering substances for a

minimum of six months.
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4. Ms. Thomas will submit to random drug screens.

5. Ms. Thomas will secure and maintain suitable/safe housing with adequate

furnishings and room space for herself and the children. Ms. Thomas will locate

available day care and obtain as necessary for care of the children.

6. Ms. Thomas will secure and maintain legal financial support for herself and the

children.

7. Ms. Thomas will obtain a parenting assessment by a DCS approved counselor to

identify strengths and areas of concern. Ms. Thomas will follow recommendations.

8. Ms. Thomas will complete individual counseling by a licensed and approved DCS

counselor to address her own victimization, marriage conflicts, communication,

separation, and loss issues. 

9. Ms. Thomas, if she continues to make Mr. Les Thomas a part of her life, will

assume responsibility for getting him to cooperate with taking the recommended

psycho-sexual evaluation and follow recommendations.

10. Ms. Thomas will keep DCS/HCCM informed of any changes in status or

locations. Ms. Thomas will sign/update Release of Information as requested.

11. Ms. Thomas will cooperate with DCS in obtaining permanency for her children

by diligently working her plan of care to achieve reunification or cooperating with

giving custody of children to an appropriate relative resource or making children

available for adoption by surrender of parental rights or termination of parental rights

through the court.

12. Ms. Thomas will visit with the children in a supervised setting a minimum of

four hours per month to demonstrate parenting skills and spend quality time with the

children. Ms. Thomas will not discuss a potential return home with the children or

make related promises.

Ms. Thomas was present at the staffing, but she refused to sign the 1998 plan of care. On December

9, 1998, DCS filed a motion for ratification of the 1998 plan of care. A ratification hearing was held

in December, 1998. On December 22, 1998, the trial court found the 1998 plan of care to be in the

children’s best interest and ordered that the 1998 plan of care be ratified. On February 2, 1999, the

trial court ordered the children to remain in foster care until there was strict compliance with the

1998 plan of care nunc pro tunc December 22, 1998. 

On June 29, 1999, DCS filed a petition for termination of parental rights. The petition

alleged that parental rights should be terminated based on abandonment, substantial noncompliance

with the plan of care, and failure to correct the circumstances, conduct, or conditions which led to

the children’s removal. The trial court appointed counsel to represent Ms. Thomas and appointed

a guardian ad litem to represent the children in the petition. On February 15, 2000, Ms. Thomas filed

a petition for custody. Ms. Thomas claimed that she had substantially complied with the plan of

care. 

The hearing on the petition for termination of parental rights was held on February 22, 2000.

Donna Nichols (“Ms. Nichols”) testified that she was the DCS case worker assigned to Ms. Thomas’
3

 The parental rights of Mr. Thomas were terminated by default order entered June 20, 2000 nunc pro tunc

February 2 2, 2000 . Mr. Th omas is not a party to this app eal. 

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family since the children first entered state custody. Ms. Nichols testified that Ms. Thomas had

visited with the children on February 18, 2000. The previous two documented visits occurred on

February 23, 1999 and for two hours on May 20, 1999. Ms. Nichols also testified that Ms. Thomas

had failed to provide any child support while the children were in state custody. Finally, Ms. Nichols

testified that Ms. Thomas had failed to substantially comply with the 1998 plan of care. Specifically,

Ms. Thomas had failed to provide verification that she attended or completed N/A, failed to provide

verification that she had remained free of mood-altering drugs for six months, refused two random

drug screens, failed to consistently keep DCS informed of her status and location, failed to obtain

a parenting assessment, failed to attend and complete individual counseling by a DCS approved

counselor, and failed to take responsibility for ensuring that Mr. Thomas underwent a psycho-sexual

evaluation. 

Ms. Thomas testified that she currently lives in a three bedroom trailer in California and

works two jobs. Ms. Thomas testified that she underwent drug treatment and individual counseling

at a methadone treatment facility in Nashville beginning on February 13, 1998. She testified that she

left the clinic in December, 1998 because DCS wanted her off all mood-altering substances. Ms.

Thomas testified that she received treatment from another methadone clinic after she moved to

California in May, 1999. Ms. Thomas testified that she was unable to visit her children from

February 23, 1999 until May 20, 1999 due to lack of transportation and being hospitalized. Ms.

Thomas admitted that, with the exception of birthday and Christmas gifts, she failed to pay child

support while the children were in state custody. Ms. Thomas claimed that she was unaware of her

obligation to pay child support. Ms.Thomas testified that she completed parenting classes; however,

she admitted that she failed to complete a parenting assessment. Finally, Ms. Thomas testified that,

with the exception of a post office box, she never informed DCS of her street address in California.

Ms. Thomas could not remember whether she informed DCS of her employment or methadone

treatment in California. 

On June 20, 2000, the trial court issued a final decree of guardianship entered nunc pro tunc

February 22, 2000. The trial court stated that “[u]pon the evidence presented, arguments of counsel,

and the entire record, the Court finds that upon clear and convincing evidence, the Petition to

Terminate Parental Rights of the Defendant . . . is well taken and should be sustained and relief

granted thereunder.”3 Specifically, the trial court found that, for a period of four months preceding

the filing of the petition, Ms. Thomas willfully failed to visit with the children or only engaged in

token visitation; Ms. Thomas failed to financially contribute to the children’s support since

September 25, 1997; and Ms. Thomas failed to substantially comply with the 1998 plan of care. The

trial court further found that it was in the children’s best interest that Ms. Thomas’ parental rights

be terminated. This appeal followed. 
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II. Standard of Review

Parents have a fundamental right to the care, custody, and control of their children. See

Stanley v. Illinois, 405 U.S. 645, 651 (1972). This right is not absolute, however, and parental rights

may be terminated upon a finding by clear and convincing evidence that the grounds for termination

of parental rights have been established and that termination is in the best interests of the child. See

TENN. CODE ANN. § 36-1- 113(c) (2000). Clear and convincing evidence is evidence which

“eliminates any serious or substantial doubt concerning the correctness of the conclusion to be drawn

from the evidence. It should produce in the factfinder’s mind a firm belief or conviction with regard

to the truth of the allegations sought to be established” O’Daniel v. Messier, 905 S.W.2d 182, 188

(Tenn. Ct. App. 1995) (citations omitted).

Under this heightened standard of review, we must first review the trial court’s findings in

accordance with section 13(d) of the Tennessee Rules of Appellate Procedure. That review is de

novo with a presumption of correctness as to the trial court’s factual findings, unless the

preponderance of the evidence is otherwise. See TENN. R. APP. P. 13(d). For issues of law, the

standard of review isde novo, with no presumption of correctness. See Ridings v. Ralph M. Parsons

Co., 914 S.W.2d 79, 80 (Tenn. 1996). We must then determine whether the facts make out a clear

and convincing case in favor of terminating parental rights. See In re Drinnon, 776 S.W.2d 96, 100

(Tenn. Ct. App. 1988).

III. Law and Analysis

The following issues, as we perceive them, are presented for our review:

1) Whether Ms. Thomas’ due process rights were violated by the trial court’s failure to appoint

counsel for the initial dependency and neglect proceeding and the review hearing in September,

1998;

2) Whether Ms. Thomas knowingly and voluntarily waived her right to a preliminary and

adjudicatory hearing on the dependency and neglect petition in accordance with Rule 16(b) of the

Tennessee Rules of Juvenile Procedure; and

3) Whether the trial court’s decision to terminate parental rights was supported by clear and

convincing evidence.

We will examine each issue in turn.

Procedural Issues

Ms. Thomas argues that her due process rights were violated by the trial court’s failure to

appoint counsel for the initial dependency and neglect proceeding and the review hearing in

September, 1998. Ms. Thomas also argues that she failed knowingly and voluntarily to waive her

right to a preliminary and adjudicatory hearing on the dependency and neglect petition in accordance

with Rule 16(b) of the Tennessee Rules of Juvenile Procedure. Ms. Thomas does not challenge the

procedural protections she was afforded at the termination hearing.
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In State of Tennessee v. Wilkerson, No. 03A01-9810-JV-00341, 1999 WL 775759, at *1

(Tenn. Ct. App. Sept. 15, 1999), the Tennessee Court of Appeals addressed the issue of whether an

initial lack of due process in a dependency and neglect proceeding was remedied by the full

procedural protections afforded at a termination proceeding. The appellant, Wilkerson, appealed the

trial court’s decision terminating his parental rights. See id. Wilkerson was afforded full procedural

protection at the termination proceeding. See id. at *2. Wilkerson argued that he failed to receive

proper notice of the dependency and neglect proceeding and was thus denied his due process rights.

See id. The court rejected Wilkerson’s argument, stating:

Wilkerson asserted his plenary rights at the termination hearing,

and any initial lack of due process was remedied by the full

procedural protections afforded to Wilkerson at the termination

hearing. “[E]ven if it can be said that the appellant was deprived

of due process in the ‘dependency and neglect’ proceeding in

the Juvenile Court, there is no claim of such deprivation in 

the . . . action to terminate parental rights.”

Id. (quoting Tennessee Dep’t of Human Servs. v. Grove, 1989 WL 3137, at *3 (Tenn. Ct. App. Jan.

20, 1989)). Thus, the court held that the trial court’s decision should not be reversed for any

deprivation of due process that occurred at an initial dependency and neglect proceeding when

Wilkerson was afforded full procedural protection at the termination proceeding. 

In the case at bar, Ms. Thomas does not dispute that she was afforded full procedural

protection at the termination proceeding upon which this appeal is based. Rather, Ms. Thomas

argues a lack of due process and violation of the Tennessee Rules of Juvenile Procedure at the

dependency and neglect hearing and the review hearing in September, 1998. Ms. Thomas’ argument

concerning any initial proceedings fails to establish a basis to overturn the trial court’s decision

following the termination proceeding. Ms. Thomas received full procedural protection at the

termination proceeding. Ms. Thomas received notice of the termination proceeding. She was

informed of her right to counsel and was appointed counsel. The termination proceeding was

rescheduled at Ms. Thomas’ request. Finally, she was present and testified at the termination

proceeding and had the full assistance of counsel. In accordance with Wilkerson, we find that any

lack of due process or violation of the Tennessee Rules of Juvenile Procedure that may have

occurred at any initial proceeding was remedied by the full procedural protection Ms. Thomas

received at the termination proceeding. Accordingly, we find Ms. Thomas’ issues concerning lack

of due process and violation of the Tennessee Rules of Juvenile Procedure to be without merit.

Termination of Parental Rights

Ms. Thomas argues that the trial court’s decision to terminate parental rights was not

supported by clear and convincing evidence. Specifically, Ms. Thomas argues that the trial court

erred by finding that DCS established grounds for termination of parental rights by clear and
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convincing evidence based upon abandonment and substantial noncompliance with the plan of care.

In order to terminate parental rights, the court must find by clear and convincing evidence

that grounds for termination, as set forth by section 36-1-113(g) of the Tennessee Code, have been

established, and the court must determine that termination is in the best interests of the child. See

TENN. CODE ANN. § 36-1-113(c) (2000). As pertinent in the case at bar, section 36-1-113(g) of the

Tennessee Code provides that a termination of parental rights may be based upon any of the

following grounds: abandonment by the parent or guardian, as defined in section 36-1-102 of the

Tennessee Code, or substantial noncompliance by the parent with the statement of responsibilities

in a plan of care. See TENN. CODE ANN. § 36-1-113(g)(1), (2) (2000). In reviewing termination

decisions, Tennessee courts have recognized that the existence of any one of these grounds will

support a termination of parental rights. See In re C.W.W., N.W.W., Z.W.W., & A.L.W., 37 S.W.3d

467, 473-74 (Tenn. Ct. App. 2000) (citations omitted). In the present case, therefore, we must affirm

the trial court’s judgment terminating Ms. Thomas’ parental rights if the record contains clear and

convincing evidence to support either abandonment or substantial noncompliance with the plan of

care. See id. We shall address each of these grounds for termination in turn.

Abandonment

Section 36-1-102 defines abandonment, for purposes of terminating parental rights, as:

(1)(A)(i) For a period of four (4) consecutive months immediately

preceding the filing of a proceeding or pleading to terminate the

parental rights of the parent(s) or guardian(s) of the child who is

the subject of the petition for termination of parental rights or

adoption, that the parent(s) or guardian(s) either have willfully

failed to visit or have willfully failed to support or make 

reasonable payments toward the support of the child;

(B) For purposes of this subdivision (1), “token support” means

that the support, under the circumstances of the individual

case, is insignificant given the parent’s means;

(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;

(D) For purposes of this subdivision (1), “willfully failed to

support” or “willfully failed to make reasonable payments

toward such child’s support” means that, for a period of 
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four (4) consecutive months, no monetary support was paid

or that the amount of support paid is token support;

(E) For purposes of this subdivision (1), “willfully failed to

visit” means the willful failure, for a period of four (4)

consecutive months, to visit or engage in more than token

visitation.

TENN. CODE ANN. § 36-1-102(1)(A)-(E) (2000).

In In re Swanson, 2 S.W.3d 180 (Tenn. 1999), the Tennessee Supreme Court found the above

definitions of “willfully failed to support” and “willfully failed to make reasonable payments toward

such child’s support” to be unconstitutional because they “in effect create an irrebuttable

presumption that the failure to provide monetary support for the four months preceding the petition

to terminate parental rights constitutes abandonment, irrespective of whether that failure was

intentional.” Id. at 188. The Swanson court held that the definition as it existed under the prior

statute should be applied until the legislature amends the statute. See id. at 189. “Under the prior

statute, the definition of ‘abandoned child’ contained an element of intent both in failures to visit and

failures to support.” Id. at 189 n.14 (citing TENN. CODE ANN. § 36-1-102(1)(A)(i) (Supp. 1994)).

The trial court found that Ms. Thomas abandoned the children in that, for a period of four

consecutive months prior to filing the petition to terminate parental rights, she failed to visit the

children or only engaged in token visitation. The petition for termination of parental rights was filed

on June 29, 1999. During the four months immediately preceding the filing of the petition, Ms.

Thomas visited the children on one occasion, May 20, 1999, for two hours. Ms. Thomas testified

that she was hospitalized from March 26 to April 29, 1999. DCS failed to present any evidence

controverting Ms. Thomas’ testimony. We cannot say that, during the approximately one month

period that Ms. Thomas was hospitalized, this constituted an intent to abandon the children. Because

Ms. Thomas did not intend to abandon the children during one month of the four months

immediately preceding the filing of the petition, DCS failed to establish abandonment under the

standard articulated by the Swanson court. Accordingly, we find that the trial court erred by finding

that Ms. Thomas abandoned the children for failure to visit the children during the four months

immediately preceding the filing of the petition to terminate parental rights. 

The trial court also found that Ms. Thomas abandoned the children in that she failed to

contribute to the support of the children from the time they entered state custody. With the exception

of birthday gifts, Christmas gifts, and lunches during visitation times, Ms. Thomas failed to

contribute any child support. Ms. Thomas argues that failure to pay child support did not constitute

abandonment because DCS never informed her of her obligation to pay child support. Ms. Thomas

argues that she could not have acted intentionally in failing to support the children because she was

unaware of her obligation. We disagree. DCS provided Ms. Thomas with written information

explaining that her parental rights could be terminated for failure to pay child support. Ms. Thomas

signed the 1997 plan of care indicating she had received a copy of procedures for termination of
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parental rights and was given an explanation of its contents. We find that Ms. Thomas was aware

of her obligation to pay child support. Because she intentionally failed to pay child support the entire

time the children were in state custody, we find that Ms. Thomas abandoned the children.

Accordingly, we find that the trial court did not err by finding by clear and convincing evidence that

Ms. Thomas abandoned the children for failure to pay child support while the children were in state

custody.

Substantial Noncompliance with Plan of Care

The trial court also found that Ms. Thomas failed to substantially comply with the statement

of responsibilities in the 1998 plan of care. The plan of care required Ms. Thomas to enroll in a

twelve step N/A program, obtain a sponsor, and attend ninety meetings in ninety days. Ms. Thomas

failed to enroll in a N/A program. The plan of care required Ms. Thomas to remain free of all opiate

and mood-altering substances for a minimum of six months. Ms. Thomas failed to provide

verification that she remained free of all opiate and mood-altering substances for a minimum of six

months. The plan of care required Ms. Thomas to submit to random drug screens. Ms. Thomas

refused random drug screens on two separate occasions. The plan of care required Ms. Thomas to

obtain a parenting assessment by a DCS approved counselor. Ms. Thomas failed to obtain a

parenting assessment. The plan of care required Ms. Thomas to obtain individual counseling by a

DCS approved counselor. Ms. Thomas failed to obtain individual counseling by a DCS approved

counselor. The plan of care required Ms. Thomas to assume responsibility for ensuring that Mr.

Thomas underwent a psycho-sexual evaluation. Mr. Thomas never underwent a psycho-sexual

evaluation. The plan of care required Ms. Thomas to keep DCS informed of any changes in status

or locations. Ms. Thomas failed to consistently keep DCS informed of her status and location. The

plan of care required Ms. Thomas to visit with the children a minimum of four hours per month. Ms.

Thomas failed to meet this visitation requirement during several months. The record in this case

clearly demonstrates that Ms. Thomas failed to substantially comply with the 1998 plan of care.

Accordingly, we find that the trial court did not err by finding by clear and convincing evidence that

Ms. Thomas substantially failed to comply with the plan of care. 

Termination of Ms. Thomas’ parental rights is warranted under either the ground of

abandonment for failure to support or the ground of substantial noncompliance with the plan of care.

Furthermore, we find that the trial court did not err by finding by clear and convincing evidence that

termination of Ms. Thomas’ parental rights is in the children’s best interests. 
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IV. Conclusion

For the foregoing reasons, the decision of the trial court is affirmed. Costs of this appeal are

taxed against the Appellant, Niki Lynn Crawford Thomas, for which execution may issue if

necessary.

___________________________________ 

ALAN E. HIGHERS, JUDGE