### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE MARCH 8, 2001 Se ssion IN THE MATTER OF: DAKOTA JEAN HOOVER-CRAWFORD, COLTON RAY THOMAS & DUSTY BRANDON THOMAS STATE OF TEN

NESSEE, DEP

ARTMENT 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 right s to three of

her minor children. Following a hearing, the Juvenile Court of Cannon County entered an order terminating the Appellant’s parenta l rights. T he Ap pellant appealsthe trial court’s

order terminatin

g her parenta

l 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

A LAN E. H IGHERS , J., delivered the op inion of the court,

in which W. F RANK C RAWFORD , P.J., W.S., and H OLLY K IRBY L ILLARD , J., joined.
Adam T. Dodd, Murfreesboro, TN, for Appellant

Paul G. Summers, Attorney Ge neral and Report

er, Elizabeth

C. Driver, Assista

nt Attorney G

eneral, for Appellee
Susan G. Cox, Murfreesboro, TN, Guardian Ad Litem

OPINION
I. Facts and Procedural History

The Appel lant, Niki Lynn Crawford Thomas (“Ms. Thomas”), has thre e minor children, Dakota Jean Hoover Crawford (d.o.b. May 29, 1992), Colton Ray Thoma s (d.o.b. March29, 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.
-2- andDusty 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 w as in the process of

being evicted, the water and electricity had been turned off, and t here w as little means of s upport. DCS also note

d that Ms. Thomas had a history of drug use and prostitution.

On September 25, 1997, DCS filed a petition in the Juven ile 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 tr eated for a broken leg . On October 7, 199 7, Ms. Thomas and her

husband, Les Thomas (“Mr. Thomas”), 2 pro se, signed a consent decree ordering DCS to retain temporary custody of the c hildren. 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”). Despi

te 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 F

ebruary 6 , 1998. DCS provided Ms. Thomas with

a packet of

written material

s explaining the grounds for termination of pa r ental rights. A review hearing to assess compliance withthe plan of care was held on September 29, 1998. Ms. Thomas appeared pro se at the hea ring. 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 a nd individual mental health issue s, parenting training approv ed by Depa

rtment of Children ’s Services, establishednor maintained housing for the chi ldren, provided verification of f inancial circums

tances, 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 thefollowing requi rements upon Ms. Thomas:

1. Ms. Thomas will part icipate in treatmen t that may include th

e followin

g: detox, inpatient , outpatie nt, group, i ndividual , and famil y counseling. 2. Ms. Tho mas will enroll in a twelve step N/A program, obtain a sponsor, and attendninety meet

ings in ninety days. Ms. Thomas must provide written verification of attendance to

all meetings. 3. Ms. Thomas will rema in free of all opia

tes and mood-alte

ring substa

nces for a minimum of six months.-3- 4. Ms. Thomas will sub

mit to random drug

screens. 5. Ms. Thomas will secur e and maint ain suitab le/safe hou sing with adequate furnishin gs 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 obtai n a parenting a

ssessment by

a DCS approved co

unselor to identify strengths and areas of concern. Ms. T homas will follow re

commendations. 8. Ms. Thomas will complete individual counseling by a licensed and approved DCS counselor to address her own victimization, marriage conflicts, commun i cation, separation, and loss issues. 9. Ms. Thomas, if she continues to make M r. Les Thomas a part of her life

, will
assume responsib ility for getti ng him to cooperate with taking the recommended psycho-se xual evaluation and

follow recommend

ations. 10. Ms . Thomas wi ll 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 bydilig ently workin

g her plan of ca

re to achieve re

unification or co

operating wit

h giving custody of c

hildren to an appr

opriate rela

tive resource or making children available for adoption by surrender of parental rights or

termination of par

ental rights through the cour

t. 12. Ms. Thomas will visit with the children i n a sup ervised setting a minimum of four hours per month to de

monstrate parenting skills

and spend quality time with the children. Ms. Thomas will not discuss a potential return home with the children or make related pr

omises.

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 hea

ring 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 i n foster care until there was strict compliance with the 1998 plan of care nunc pro tunc December 22, 1998.

On June 2 9, 1999, DCS filed a p etition for termina

tion of parental r

ights. The peti

tio n alleged that parental rig

hts should

be terminated based on abandonment, substantial noncompliance with the plan of ca

re, and failure

to correct the c

ircumstances, c

onduct, or conditio

ns which led to the children’s removal. The trial court appointed counsel to represent Ms. Thomas andappointed
a guardian ad lite

m to represent the

children in

the petition. On February 15, 2000, Ms. Thomas filed
a petition for cus tod y. 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 DC

S case worker assigne

d to Ms. Thomas’3 The parental rights of Mr. Thomas were terminated by default order entere d June 20, 2000 nunc pro tunc

February 2 2, 2000 . Mr. Th omas is not a party to this app eal.
-4- family since the children first entered state c ustody. Ms. Nichols testified that Ms. Thomas had
v isited with the children o n February

18, 2000. The prev

ious two documente

d visit s occurred o n February 23, 1999 and for two hours on May 20, 1999. Ms. Nichols also testified that Ms. Thomas hadfailed to provide any child support while the children were in state custody

. Finally, Ms

. Nichols testified that Ms. Thomas had failed to sub sta nti all y com ply w ith the 199 8 pl an o f car e. S peci fic all y, Ms. Thomas had failed to provide verification that she attended or completed N/A, failed to provide verificationthat 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 locatio

n, failed to obtain
a pare ntin g 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 th at 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 facil ity in Nashville beginning on February 13, 1998. She testified that she left the clinic in Decem

ber, 1998 because DCS want ed her off all moo

d-altering subs

tances. Ms. Thomas testified tha t she receiv ed treatment fro

m another methado

ne clinic after s

he moved to California

in May, 1999.

Ms. Thomas testifie

d that she was unable to visit her children from February 23, 1999 until May

20, 1999 due to lack

of transp o rtation and being hospitalized. Ms. Thomas admitted that, with t he exception of bir

thday and Chr

istmas gifts, she f

ailed to pay

child support whi le t he ch ild ren w ere i n st ate cus tod y. Ms. Thomas claimed that she was unaware of her obligation to pay child support. M s. Th omas testified that she completed parenting classes; however, she admitted that she f

ailed to complete a parentingassessment. Fina lly, Ms. Thoma

s testified that, withthe 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 tri

al court issued a f

inal decree of g

uardianship

entered nunc pro tunc February 22, 2000. The trial court stated that “[u]pon the evidence presented, arg uments of counsel, andthe entire record, the Court finds that upon clear and conv incing evidenc e, the Petition to Terminate

Parental Rights o

f the Defendant

. . . is well taken a

nd should be sust

ained and r elief 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 t

he children or on

ly engag ed 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’ pare

ntal rights be terminated. This appeal followed.-5- II. Standard of Review

Parents ha ve a fundamental right to the care, custody, and control of the ir 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 right

s have been esta

blished and that te

rmination is in the be

st interests of the child. See T E NN

. C ODE A NN . § 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 heigh

tened standard o

f review, we must

first review the trial

court’s findings in accordance

with section 13(d) of the Tennessee Rules of Appellate Procedu re. Tha t review is de
novo with a presumption of correct ness as to the trial court’s factual findings, unless the p reponderance

of the evidence is otherwise. See T ENN

. R. A PP

. P. 13(d). For issues of law, th e standardof review is de 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 andconvincing 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 t rial court’s failure to appoint counsel for the initial dependency and neglect proceeding and the review hearing in September, 1998; 2) Wheth er Ms. Thoma s knowingly and voluntarily waived her right to a preliminary and adjudicatory

hearing on the dependency and neg lect petition in accordance with Rule 16(b) of the Tennessee Rules of Juvenile Procedure; and 3) Whether the trial co urt’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 vio

lated by the

trial court’s fa

ilure to appoint counsel for the initial dependency an d neg lect proceeding

and the review he

aring in September, 1998. Ms. Thomas also argues that she failed knowingly and voluntarily to waive her right to a preliminary and adjudicatory he aring on thedependency and neglect petition in accordanc e withRule 16(b) of the Tennessee Rules of Juvenile Procedure. Ms. Thomas does not challenge the procedural protectio ns she was af forded at th e terminati on hearing.-6-

In State of Tennessee v. Wilkerson , No. 03A01-9810-JV-00341, 1999 WL 775759, at *1 (Tenn. Ct. App. Sept. 15, 1999), the Tenne ssee Court of Appe

als addressed the issue of whether an initial lack of due process in a dependency and neg lect proceeding was rem edied b y the full proceduralprotections aff orded 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 denie d his due process r

ights. See id. The court rej ected Wilk erson’s argu ment, stat ing:

Wilkerso n asserted h is plenary right s at the term ination he aring, and any initi

al lack of due pro

cess was remedie

d 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 ‘dependenc

y and negl

ect’ proceedin

g in the Juvenile Court, there is no claim of such deprivation in the . . . action to terminate parental rights.”

Id. (quoting TennesseeDep’t of Human Servs. v. Grove , 1989 WL 3137, at *3 (Tenn. Ct. App. Jan. 20, 1989)). Thus, the c

ourt held that the tr

ial court’s d

ecisi on should not be reversed for any de priv ation of due process that occurred at an initial dependency a nd 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 affo rd ed full procedural protection at the termination proceeding upon which this appeal is based. Rather, Ms. Thomas argue s a lack of due process and violation of the Tennessee Rules of Juvenile Proced ure at th e dependency

and neglect hearing and the review hearing in September, 1998. Ms. Thomas’ argument concerning any initial pr

oceedings fai

ls to establish a bas

is t o overturn the trial court’s decision following the termination pr oceeding. Ms. T

homas received f

ull proced ural protection at the termination proceeding. Ms. Thomas received not ice of the termination proceeding. She was informedof her right to c ounsel and was ap

pointed counsel. T

he terminatio

n proceedin g was rescheduled

at Ms. Thomas’ req

uest. Fin ally, she w as present and testified at the termination proceeding and had the full assistance of counsel. In accorda nce with Wilkerson , w e find that any lack of due process or violation of the Tennessee Rules of Juveni le Proce dure that may have occurred at any initial proceeding w as re medied by the full procedural protection Ms. Thomas received at the termination proceeding. Accordingly, we find Ms. Thomas’ issues c oncerning lack of due process a

nd violation of the T

ennessee Rules of

Juvenile Procedure

to be without merit.
Termination of Parental Rights

Ms. Thomas argues t

hat the trial cour

t’s decisio

n to terminate parental rights was not
s upportedby clear and convincing evidence. Specifica lly, Ms. Thomas argues that the trial court erredby finding that DCS es tablished groun

ds for termination

of parental rig

hts by cle

ar an d-7-

convincing evidence based upon abandonment and substantial noncompliance with the plan of care.

In order t o t erminate parental rights, the court must find by clear and convinc ing 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 thechild. See T ENN

. C ODE A NN

. § 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 pare ntal rig hts may be based upon any of the following grounds: abandonment by the parent or guard ian, as d efined 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 T ENN

. C ODE A NN . § 36-1-113(g)(1), (2) (2000). In reviewing te rmination decisions, Tennessee cour ts have re cognized that the existence of any

one of these gr

ounds will support a termination of parental rights. See In r e 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 termina ting Ms. Thomas’ parental rights if the record contains clear and convincing evidence to support either abandonment or substantial noncompliancewith the plan of
care. See id. We shall address each of these grounds for termination in turn.

Abandonment

Section 36-1-102 d

efines abandonm

ent, for purpose

s of terminating p

arental rights , as: (1)(A)(i) For

a period of four (

4) consecutive mo

nths immediately preceding the filing of a proceeding or pleading to terminate the parental right

s 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 p

arent(s) or gu

ardian(s) eithe

r 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 insignif

icant given the p

arent’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 purpose

s of this subdivision ( 1), “willfully failed to support” or “willf

ully failed t

o make reasonab

le payments toward such child’s support” means that, for a period of-8- four (4) consec

utive months, no mone

tary suppor

t was paid or that the amount o

f support paid is tok

en support; (E) For purpose

s 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.

T ENN

. C ODE A NN . § 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 pay ments toward such child’s support” to be unconstitutional because they “in effect cr e ate an irrebutta

ble presumption that the failure to provide monetary support for the four months preceding the petition to terminate parental rights con stitutes a bandonment, irrespective of whether that failure was intentional.” Id. at 188. The Swanson court held that the defi nition a s it existed under the prior statute should be applied until the legislature amends the statute. See id. at 189. “Under theprior 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 T ENN

. C ODE A NN . § 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 pri or to filin g the pet ition 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. Duri ng the four month s immediately

preceding the

filing of the pet

ition, Ms. Thomas visited the children on one oc casion, May

20, 1999, for two ho

urs. Ms. Thomas testified that she was hospitaliz ed from March 26 to April 29, 1999. DCS failed to present any evidence controverting Ms. Thomas’ testimony. We cann ot say that, d uring the appro

ximately one mo

nth periodthat Ms. Thomas was hospitalized, this

constituted an inte

nt to abandon the child

ren. Because Ms. Thom as did n ot 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 standardarticulated by

the Swanson

court. Accordingly, we find that the trial court erred by finding that Ms. Tho mas abando ned the children for failure to visit the children during the four months immediately preceding the filing of the petition to terminate parental rig hts.

Th e trial court also found that Ms. Thomas abandoned the children in that she failed t o contribute

to the support of the children from the time they entered state custody. With the exception of birthday gifts , Christm as gifts, an d lunches d uring v isitation times, Ms. T homas failed to contribute

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

titute abandonment

because DCS never

informed her of h

er obligation to p

ay child supp

ort. Ms. Thomas argues that she could not have acted intentiona lly in failing to support the children because she was
unawareof her obligation. We disagree. DCS provided Ms. Thomas with written inf ormation explaining that her parenta l rightscould 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-9-

parental rights and

was given an expla

nation of its conte

nts. We find that Ms. Thomas was aware of her obligation to pay child support. Because she intentionally failedto pay child support the entire time the children were in state cu sto dy, we find that Ms. Thomas abandoned the children. Acco rdi ngly, we find that the trial court did not err by finding by clea r and convincing evidence that Ms. Thomas abandoned

the children for failure

to pay child s

upport while the c

hildren were in st

ate
cus tod y. Substantial Noncompliance with Plan of Care

The trial court also found

that Ms. Thomas fai

led 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 progra

m, obtain a sponsor,

and attend ninety

meetings in

ninety days. Ms. Thomas failedto enroll

in a N/A program. The plan of care required

Ms. Thomas to remai

n free of all opia

te andmood-alt

ering su bstances for a minimum of six months. Ms. Thomas failed to provide verification that she remained free of all

opiate and mood-a

ltering substanc

es for a minimum of s

ix months. The plan of care required Ms. Thomas to submit to ra ndom drug scr eens. Ms. Thomas refused random drug screens on

two separate oc

casions. The plan

of care requir

ed Ms. Thomas to obtain a paren ting 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 coun

selor. Ms. Thomas f

ailed to obtain

ind ivi dua l co uns eli ng 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 p sycho -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 reco rd in this case cle arly demonstrates that Ms. Thomas failed to substantially comply with the 1998 plan of care

. Acco rdi ngly, we find that the trial court did not err by finding by clear a

nd convincing evidence

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

Termin ation of Ms. Thomas’ parental rights is warranted under either the groun d o f 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 c lear and convincing evidence that termination of Ms. Thomas’ parental rights is in the children’s best interests.-10- IV. Conclusion

For the foregoing

reasons, the decision of the trial court is affirmed. Costs of this appeal are taxed against the Appe

llant, Niki Ly

nn Crawford Thoma

s, for whic

h executi on may issue i f
nece ssa ry.

___________________________________ ALAN E. HIGHERS, JUDGE