### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE January 6, 2003 Se ssion STATE OF TENN ESSEE DEPT. OF CHILDR EN'S SERVICES v. D.D.B. a/k

/a D.B.M. Appeal from the Juvenile Court for Montgomery County

No. 50200054 John J. Hestle, Judge

No. M2002-00523-COA-R3-JV - Filed Mar ch 28, 2003

This appeal arises from the termination of parental rig hts by the juv en ile court. We affirm the juvenile court. Tenn. R. App. P.3; Appeal as of Right, Judgment of the Juvenile Court

Affirmed and Remanded S TELL A L. H ARGROVE , Sp. J., delivered the opinion of the court, in which B EN H. C ANT RELL , P.J. M.S. and PATRICI A J
. COTTRELL , J
. 

### , joined.
Worth L ovett, Cla

rksville, Tenness ee, for

Appellan t, D.D.B ., a/k/a D .B.M. Paul G. Summers, Attorney Gene ral & Reporter, Dougla s Earl Dim ond, Assis tant Attor

ney Genera l, Nashville , Tennes see, for Appellee , State of

Tenness ee Dept . of Childr en's Se rvices. 

### OPINION
I. FACTUAL

BACKGROUND
In November of 1998, Appellant was arrested for parole violation and extradited to the State of Illinois. She entrusted the c are of her child, then almost two years of age, to an acquaintance. Shortly therea fter, up on reque st

of the ac quaintance, the D epartme nt of Childr

en’s Ser vices (D CS) intervened and acquired custody of the child.
In February

of 1999, Appellant wa s rel eased from prison, contacted DCS and set up visitation with the child. She visite d her thr ee times i n 1999 and

five time s in 2000, with the las tvisit being on October 29, 2000.-2-

On June 22, 2001, DCS filed to terminate the par ent al rights of Appellant and others. A hearing was held in juvenile

court on December 6, 2001, and the order of termination was entered January 23, 2002. II . GROUNDS ON APPEAL A. GROUNDS FOR TERMINATI ON
Parents have a f

undament al righ t to the case, custody

and control of their children. Stanley v. Illinois , 405 U.S. 6 45, 92 S. Ct. 1208 (1972). However, these rights are not absolute , and the S tate may sever the relationship between parents and children if it can prove (1) an appropriate ground by clear and convincing e

vidence , and (2) that term ination is in the bes t interes tof the children. In re: Drinnon , 776 S.W.2d 96 (T enn. Ct. Ap p. 1998); Santosky v. Kramer , 455 U.S. 745, 102 S. Ct. 1388 (1982).
Tenn. Code Ann. § 36-1-11 3(g) se ts out th e possibl e grounds for termination of parental rights , incl udin g:

__(1) Abandonment by the parent or guardian, as def ined in § 36-1-102, has occurr ed;

__(2) There has been substantial noncompliance by the parent or guardian with the statement of responsibilities in a permanency plan or a plan of care pursuant to the provisions of title 37, chapter 2, part 4;

__(3)(A) The child has been removed f rom the home of the p arent o r gu ardian 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 subj ected to further abuse or neglect and which, there fore, pr event the child's safe re

tu rn to the ca re of the parent( s) or gu ardian( s), still pe rsist; (ii) There is little likelihood that these conditions will be re medied a t an ear ly date so thatthe child

can be sa fely returne d to the parent(s) or guardian(s) in the near future; and (iii) The continuation of the parent or gua rdian an d child re

lationship great ly diminishes the child 's cha nces of e arly

integration into a

safe, stable and permanent home.
For purposes of termination proceedings, Tenn. Code Ann. § 36-1-102 (1)(A) defines “abandonment” a s follows: (1) (A) "Abandonment" means, for purpos es of te rminating the parental or guar dian rights of parent(s) or guardian( s) of a child to that child in or

der to make tha

t child av ailable for adop tion, that: (i) For a period of

four (4) consecutive months immediately prece ding the filing of a proceedingor pleading to terminate the parental rig hts of the pare nt(s) or guardian(s) of the child who is the subject o f the petition for termination of-3- parental rights or

adoption, that the p arent( s) or gu ardian( s) either h ave willf ully failed to visit or have willfully fai l ed to suppo rt or make

reasona ble pay ments toward the support of the child.
Tenn. Code Ann. § 36-1-10 2(1)(E) defines “willfull y failed to visit” as the willful failure, for a period of four (4) consecutive months, to visit or engag e in more than token visitation. Subsection C defines “token vi sitation” as visitat ion, unde r the cir cumstanc es of the

individ ual case, that 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.
B. WHETHER TERMINATI ON IS I N THE BEST INTEREST OF T HE CHIL D. The juvenile court found by c lear and convincing evidence that Appellant’s parenta

l rights should be terminated on the above grounds and found that termination of parental rights was in the best interest of

the child. The court found that Appellant had failed to establish consistent visitation withher chil d, fail ed to rehabilitate herself and failed to establish a safe home for the child. The court also found that Appellant had only token visitation with the child and made no contributions toward her support since November 9, 1998, the date that the child was plac ed in st at e c us to dy. Further, the court found that the conditions which led to the removal of the child, as well as other condition s that woul d cause t he child f urther a buse or ne glect, would pro bably notbe reme died in the near future. The court also found that the child is of such a n age that continuation of the legal parent and child relation ship would

great ly d iminish the child’s early

integration into a stable and permanent home.

EFFORTS DEMONSTRATED BY APPELL ANT TO SEE THE CHIL D: Upon releas e from jail in February , 1999, Appellant did not visit with herch il d u nt il Ma y, 1999. She testified that

living with a husband who was a trucker hindered he r from seeing her child. However, the evidence showed that she did not livewith her husband after her release from jail. She testifie d as follo ws: Q. Until now you haven’t visited with y our child very muc

h. Can you tell the court why that is so? A. Because my

husband was a t ruck driver and we were tra veling too because he had different places that he h ad to go; and they would change his company over different places; and that’s why did not - have a stable home; but my daug hter was very

well taken care of.

------------ Q. And you g ot out in February of ’99? A. Yes, sir. Q. And when did you c ome down here to see about y our daughter? A. I don’t remember. Q. Well, was it in February of ’99? A. It was some w

here in ’ 99, y es.-4-

Q. Did you not

testify that the rea sons that you did, was beca use your husband wa s a trucker? A. Yes, sir. Q. And y ou were on the roa

d with him? A. I wa s on the ro ad in Nove mber with

him and we

were stu ck in (ind

iscernib le) Mo tel

– after that I don’t know. Q. That was in ’99? A. Yeah, when I g ot – we were here in ’99. Q. After y ou got out of prison, were y ou in jail or prison? A. I w as in jail. Q. After you got out of

jail? A. I w asn’t wit

h him.

---------- Q. Yet you say

you were concerned about y our child? A. I was concerned about my child, but like I

told DCS, I was also confused, didn’t know what I was doing, I

was moving from

here, to there, I w as trying to do my best, I

went back

to my dad’s house to st

ay there. I went to my

parenti ng clas ses. I did every thing there. My

dad tried to call and talk t

o my case wo rker. Th ey say my d aughte

r went int o DCS custod

y, m y father calle d down her e to come and ge t her; an d they

told him tha

t he has no

rights to come down here and get her. That’s her grandpa.

----------- On cross-examination, Appellant testified: Q. Did you and Mr. Mallory separate? A. Uh huh (meaning y

es by sound). Q. When? A. Well, the last time I seen him was November 3 rd , before I lef t. Q. November 3rd, 1998? A. No. When my daug

hter went into DCS custody, is that when she we nt in there, ’98? Q. Yes. So the last time you saw Mr. Ma llory was in 1998? A. Yes, ma ’am. Q. And Mr. Mallory

is a truck er, rig ht? A. Yes, ma ’am. Q. So you say

that y ou couldn ’t see y

our daug hter bec ause y

ou’re on the road all the time (indiscernible) ? A. Well, tha

t -- yeah, y

ou’re r ight. Appellant also had difficulty r emembering when she last saw her da ughter. Upon cross-examination, she testified: Q. The last time you visited y our daughter, wasn’t that October of 2000? A. I don’t know. I

think I visited –-5-

Q. You don’t remember the last time y ou visited your daug hter? A. I know it was September. Q. September of 2000. A. No, ’9 9 becau se I a sked to se e her in O ctober w hen I came dow n here f

or court

. Q. When was the last time you ac tually saw y our daughter? A. Se pt em be r l as t ye ar on he r b ir th da y. Q. Septem

ber of 20 00; and tha

t you moved to L

as Veg as? A. Uh huh (meaning y

es by sound). Appellant testified that upon release from jail she lived in Missouri with a female friend and then with a male friend. She then moved into her p arent’ s home in No rth Carolina, and staye d there for less t han a month . App ella

nt ne xtmoved back to Mi ssouri, me t a man an d moved with him to Las Vegas in Novemb er of 200 0. The re cord reflects th at her f irst job upon release from jail was at a McDonalds in Las Veg as. Appellant testified that she hada tenth grade education and that she was in special education while she was in school. She stated that she now has a home and a job and t

hat she in tends tostay in Clarksville. She testified that she is ready, w illing and able to care for her c hild. There is testimo n y in the recor d about a Plan of Care entered into between Appe llant and DCS. However, it appears that no plan was ever made a part of therecord. The evidence shows that on her second visit with the child, on August 2, 1999, she read and signe d a permanency plan for DCS. The Confidential Report of the guardian ad litem refers to a plan, a nd the juvenile judge refers to a current permanency

plan.
We find that Appellant abandoned her child within the meaning of Tenn. Code Ann. § 36-1- 113(g)(1) and (g)(3)(A). Her eight visits over a period of some two year s and four months (February 1999, upon release from jail, to June 2001, when the termination p etition was filed by DCS), con stitute token visitation as defined by § 36-1- 102(1)(C) and are nothing more than p erfunctor y visitation of such an infrequent nature as to merely establish minimal or insubstantial contact with the child. We n ote that o n the next to the last visit scheduled by her, on August 10, 2000, Appellant failed to even show up. Appellant failed to visit the child at all for aperiod of eight consecutive months (October 2000 to June 2001), prior to D CS filing its petition . She made no attemp ts to return to Tennessee until after the termination petition was filed. The record

reflec ts that sinc e DCS assumed custody of the c hild in November of 1998, she has been in

approxima

tely five different foster care f amilies. The child turned age six in September of 2002. We agree with the juvenile jud ge that the three provisions of Tenn. Code Ann. § 36-1- 113(g)(3)(A) I , ii, and iii apply in this case. We also find that the ruling

of the juv enile court is in accordance with the provisions of Tenn. Code Ann. § 36-1-113( c)(I)(1) (2)(3) and (4).-6-

We therefore find that the record conta ins clear and convincing evidence of aba ndonment pu r suant to Tenn. Co de Ann. § 3 6-1-113( g)(1) and 36-1 -113(g )(3)(A ), and tha t it is in the b est interest of the child that Appellant’s parental rights be ter minated.
II I. CO NSTI

TUTI ONAL

ARGUMENT

UNDER SWANSON

, 2 S.W.3d 180 (Tenn. 1999)
We find no merit to the Appellant's argument under In re: Brittany Swanson , 2 S.W.3d 180, (Tenn. 1999), that the willful failure to visit standard within the meaning of Tenn. Code Ann. § 36-1- 102(1) ( D) creates an irrebuttable presumption which opera tes to unconstitutionally deprive the mother of her right to the care and custody of her daughter where suc

h alleged abandonment was not intentiona

l.
IV. CONCL USION The judg ment of the

juvenile court is affir med, and t

he case is remand

ed to juve nile cour t. Costs are assesse d again st Appella nt.

________________________________

STELLA L. HARGROVE, JUDGE