# FILED
October 31, 19 97 Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE, WESTE RN SECTION AT NASHVILL E

_______________________________________________________ ) STATE OF TEN

NESSEE ) Cannon Juve nile DEPARTMENT OF HUMAN ) No. 497 SERVICES , ) ) Plaintiff/Appellee, ) ) VS. ) C.A. No. 01A01-9703-JV-00116 ) LISA PICK

ETT BRANDT M

ANIER , )

) Defend ant/Appe

llant, ) ) IN THE MATTER

OF : ) LISA NICOLE BR

AND a/k/a ) BRITTANY NICOLE BRANDT, ) D.O.B. 3/30/91 ) and ) SHAWN RUSSEL L BRANDT, D .O.B. ) 11/30/92 , ) Children under 18 years of age
. ) )

______________________________________________________________________________ Fr om th e J uv en il e C ou rt of Ca nn on Co un ty a t W oo db ur y. Honorable John B. Melton, III, Judge

Dale W. Peterson , Woodbury, Tennessee Attorney for Def endant/A ppellant
. John Knox Wa

lkup , Attorney Gene

ral & Reporter Douglas Ear

l Dimond , Assistant Attorney Gene ral Attorney for Plaintiff/Appe llee.

OPINI ON FIL

ED: AFFI RMED AND

REMANDED FARMER, J. CRAWF ORD, P. J., W.S. : (Concur s) HIGHERS, J. : (Concur s)1 The record indicates that since the filing of the petition, the name of this department was changed to the Department of Children’s Servic es. T.C.A. § 37-5-101. For clarity , we will refer to the department as the Department of Human Services or DHS throughout this opinion. This is a termination of

parenta l rights case. The child

ren involved are

Lisa Nicole Brandt a/k/a Brittany

Nicole Brandt, born March 30, 1991, and Shawn Russell Brandt, born November

30, 1992. Pursuant to apetition filed by the State of Tennessee, Department of Human Services (Appellee), 1 the trial court terminated the parental rights of their natural mother and father, Lisa Pickett Brandt Manier and Richar d Brandt. Only

Mrs. Manier has appealed from the trial court’s decision . For the

reasonsset forth

below, we

affirm.
Appellee filed its petition to terminate the parental rights of Appellant on Decembe r 12, 1995 alleging that the children had bee n in its legal custody a

nd in foster care since June 19, 1993 and that A

ppellant had aba ndoned he

r childre n as defined by

statute a nd had fa iled to co mply with the statements of responsibilities as provided in the “Plans of Care” entered into between the appellant and Appellee. Appellee allege d that term ination wa s in the best interests of the children. For answer , Appella

nt denied all material allegations of the petition and requested that the children be returned to her.

After a hearing, the

trial court entered a final decree of guardianship, finding as follows:
[T]he Petition . . . i s well taken and should be sustained and relief

granted thereunder f

or the causes as therein stated in that . . . [Appel lant]
. . . h a[ s] aba ndo ned th e ch il dre n, LIS A NIC OLE BRANDT a/k/a BR

I TTANY NI COL

E BRA NDT a nd SHA WN RUS SE LL

BRANDT, pursuant to T.C.A. § 36-1-113(g)(3)(A) et seq . in that said children have been in foster [care] for a period

in excess of one (1) ye ar, and that the conditions which lead to the removal of saidchi ldren fr

om said [App ellant] still persist a nd there is littl e likelihood that these

conditions will be remedied at an earl y da te, so that said chil dren can be returned to said [Appellant]; that . . . [Appellant] . . . ha[s] willfully abandoned the children, . . . for more than four (4) consecutive mont hs next preceding the filing of the Petition in this cau se in that . . . [Appella nt], has not

visited sa

i d children since around July 13, 1995, a nd h as not made any contributions whatsoever towards the suppor t of said children since the date said children were placed with y our Petitioner, . . . and further , t hat pursuant to T.C.A. § 37-2-403(2), . . . [Appellant] . . . ha[s] fa il ed to co mp ly w ith the Statements of Responsibilities as provided in the Plans of Ca re ente red into by sa

id [Appella

nt] with [Appellee ]. It is, therefore, in the best intere st of said children and thepublic that the [Appellant’s] parental rights to said children be for e ver terminated . . . .

We perceive the issue on appeal as whether the trial court

erred i n it s decisio n to terminat e the pare ntal rig hts of App ellant asto the chi ldren he rein named. Our review of this case, tried without the intervention of a jury , is de novo upon the record, accompanied by a presumption of correc tness of the trial court ’s fin dings of fact. Unless the evidence preponderates otherwise, we
are to affirm, absent error of law. In re Adoption of Self , 836 S.W.2d 581, 582 (Tenn. App. 1992); Rule 13(d) T.R.A.P.

T.C.A. § 36-1-11 3, perta ining to the “termination of parental rights,” states a t subsecti on (c): “ [t]erminati on of par ental or guard ianshiprights must be based upon: (1) a finding by the court by cl ear and co nvincing evidence that the grounds for termination o[f] parental or guard ianshiprights h ave bee

n establis hed; and ( 2) [t]hat ter mination of

the pare nt’s or g uardian’s rights isin the bes t interes ts of the child.” Section 36-1- 113(g) provides , in part p ertinen t:

Termination . . . may be base d upon any of the f ollowing ground s: (1) Abandonment by the pa r ent or guardian, as defined in § 36-1-102, has occurred; (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 h as 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 co nditions which led to the child’s removal or other conditions which in

all reasona

ble proba bility would ca use the child t o be sub jected to further abuse or neglect and which, therefore, prevent the child’s return to the care of the parent(s) or

guardians(s), still pers ist; (ii) The re is l ittle likelihood that these conditions will be remedied at an ea rly date so th at the chil d can be returned to the parent(s) or guardian(s) in the ne ar future; and (i ii) Th e continu ation of th e paren t or gua rdian and child relation ship greatly

diminishes the child’s chances of early int egrat io n into a stable and permanent home.
T.C.A. § 36-1-102(1)(A) defines abandonment, as r elevant here:
(1 )(A) “Abandonment” means, for purposes of terminating th e2 The record indicates that Appellant was incar cerated for fourteen counts of thef t and forgery . The young est child, Shawn, was born while the appellant was incarce rated. He then went to liv e with Ms. Pi ckett.

parental or guardian rights of pa rent(s) or gua rdian(s ) of a ch

ild to that child in order to make th at child a

vailable for adoption, that: (I) For per

iod of fou

r (4) co nsecutiv e months im me diately preceding the fi ling o f a proc eedin g o r pleadi ng to terminate the parental rights of

the pare nt(s) or g uardian (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 f ailed to visit or have willfully failed

to support

or make r easonab le pay

ments toward the support of the child;

The record establishes that the two children were r emoved from the home of Shirley Pickett (their ma ternal g randmother) and

placed in state cu stody

in June 1993. Both

Appellant and RichardBrandt were serving jail sente nces at the time. 2 The childrenhave since remained in foster
care. After divorcing Mr. Brandt, Appe llant married Ricky Manie r with whom she had two children.

At trial, Mr. Manier conceded that he did not comply with the court

approved plans of care ou tl in ed by Appellee, including the requirements that he re frain from any

further criminal
ac ti vi ty; cooperate in an alcohol and drug e valuation, including any

recommended trea

tment ; particip ateand cooperate in a psy cho-soc ial asses sment; and particip ate in

counseling to ad

dress his violenttendencies. Manier maintained that his “work schedule” prevented his compliance. On his da ys off from work, he “spent time with [his own children].” Manier admitted to past drug use, but stated that he had no t used dru gs for o ver a y ear. He admitted h

itting the appella nt. H e acknowledged

that the plan of care was designe d to address this type beha vior, butstated that he had only struck Ap

pellant o nce and

that he wa s “ no t the kind of person to hit [his] wife.” Manier testified that since his marriage to Appellant, he had been a rrested for drag racing and, mo st re ce nt ly, for assault. He stated that under the plan of care he was to attend a ther ape utic nurs ery with Appellant and the children for forty hours, but was actually pr esent for only f

our.
Appellant testifie d to executing two plans o f care , dated A ugust 10 , 1994 and

April 11, 1 9 95, respectively . At both times, she was made aware by DHS that proceedings would be initiated to terminate her parental rights should significant prog ress not be made under the plan of
care. A statement to this effect was also included in the plans of care. The plan of care designedfor

Appellant addresses the fact that she has four c hildren under the age of four. He r obligations and responsibilities in this reg ard wer e to work with the st

aff at a therape utic nurs ery

“to learn ho w to meet the physical

& emotional needs of all 4 children & help all the childre n to understand & accept the family unit.” The plan of carealso req

uired Ap pellant to present a written p lan “of how she is going to manage a home, a job & 4 children, a ges 4 an d y ounger.” She was additionally required to refrain from any

further criminal activity and fulfill al l court obligations such as fines and particip atein a psycho-socia l assessment and counseling. Appellant testified that she com ple ted
some44 hours in parenting classes required under the plan. On cross-examination, Appellant stated that she provided Appellee with a written plan reg arding care for her four chi ldr en. She did not particip atein a psycho-socia l evaluation. She and Mr. Manier did not attend counseling to addre ss issues of domestic violence. She conceded that Mr. Manier had not co mplied with

any require ments under the plan of care.

Appellant ceased visitation with her children on July 13, 1995 after being inf ormed by DHS that a petition would be f iled to attempt to terminate her parental rights. She acknowledged, however, be ing info

rmed by Joel Play

er, a social couns elor with DHS, that s he could c ontin u e visitation until such filing. She further testified:

Q. Did Mr. Player not tell y ou at that time that you c oul d continue visitation until the petition was filed? A. He sai d you can go ahead, and . . . still visit. But, . . . m y mind is made up. We’re going for the termination . . . . Q. But y ou chose not to do the

visits? A. I thought about

it for a couple of weeks, and he said that they were going to set

a court date very

soon. And, . . . he didn’t put a date on it exactly. But he said it was soon. I mean, he didn’t

say it was going

to go on like for months and months. So, I was just kind of gett ing like prepar ed for th at. Q. All righ

t. But even g etting p

repare d for tha

t you still did not visit the children? A. No, ma’am.
Appellant further admitted pay

ing no child support for the four months preceding the filing of the petition. She explained that Player neve r informed her that

she hadto pay

child supp ort,nor

was she ever under any

court order to do s o. She adm it ted receiving a letter from Appe llee, months after it was sent to her old address, concerning he r obliga

tio n to make child support pay ments. After responding to the letter and informing Appellee of her new a ddress, she was never contacted again. Appellant’s two other children currently reside with her

and she isunder no

state investigation regarding their care. She believes she can car e for all four of her children.

Joel Play er testif

ied that th

e petition to termina

te was b ased on tw o grounds: abandonment

and noncompliance with the plan of care “whic h the parents sig ned and agreed to.” Player testified regarding Appellant’s f ailure to visit her ch ild

ren for a consecutive four month period and acknowl edged

Appellan t’s comple

te failur e to provi de any

child support for her children

since DHS obtained custody. Play er stated that

Appellant had failed

to comply with the major portions of her plan of care. As to the “written plan” required of her, he stated, “[s]he gave kind of a sketchy account to the Foster Care Review Board . . . , but it wasn’t wha t we had discussed and asked her to do.” According to Play er, Appellant attended

couns eling, but discon

tinued he r session s prior to successful completion.

On cross-e

xami nation, P layer a

dmitted that there is no evidence indicating that Appellant was under a court ordered obliga tion to provide support for the children. Player

stated that Appellant visited with her ch

ildren in accordance with the plan of car e up until the time she married Mr. Manier at which time her “visitation really started deteriorating.” Her visitation cea sed altogether after the birth of her fourth child and her re turn to work. Player

related specific instances of domestic violence regar din g the Maniers, including an incident wher e Mr. Manier struck Appellant in the face (approximately a yea r prior to the hearing) and an incident wh ere Appel lant
was forced

to leave her home and reside at a domestic violence shelter (within the last six (6) months preceding the hearing). Player informed Appellant that due to her marriag e to Manier, the two would be viewed as a “parenting unit” for the child ren and t hat it woul d be necessary

for Mr. Manier to be included in the plan of care.

Sarah Rollins, a therapeutic preschool coordinator, testified that Appellant attended the nursery

to attain parenting skills from August 1994 until January 1995. Appellant “completed”
a six-we ek, 40 hour“behavior modifi cation” course a nd anothe

r four hour cours e on abus eprevention training, but had difficulty applying w

hat she had learned in the classroom setting.

Meredith Carmicha

el testif ied that A

ppell ant was referred to her by DHS for outpatient psychothera

py to address pr oblems related to her regaining custody of her c

hildren. Carmichael treated

Appellan t f ro m November 1993 to April 1995. Although she initially noted
someimprovement, a decline was observed beginning in July 1994, seve ral weeks after Appellant married Mr. Manie

r. Trea tment cea sed alto gether in April 1995 when Appellant stopped coming for her sessions. Carmichael does not consider Appellant to ha ve successfully c ompleted her th er ap y.
Ly

nn Bourgeois, Appellant’s probation office r, testified that Appellant had failed to comply with the financial obligations of her probation. Although a violation re port had been issued, Bourg eois recommended that Appel lant be a llowed to remain on probation. Bourgeois noted, however, that

with any violation, there is a possibility of a return to incarceration. Bourg eois does notbelieve that incarcerating Appe llant for the violation “would assist in any future dev elopm ent
or add to her stability.” B ourgeois stated that Appellant has been employ ed at Middle Tennessee Medical Center for two y ears and has “been very dedica t ed to her

employ ment.” B ourge ois confirmed

that Appellant was making “very small payments” in an ef fort to satisfy

her fin ancial obligations but considered Appellant to have “financial management problems with her money and the income in her household.” Since the 1992 inciden ts resulting in Appellant’s probation, Bourg eois was not aware of any other cr iminal ac tivity

by A ppellant
. Appellant first argues that

the trial court er red in te rminating her par ental rig hts under T.C.A. § 36-1-113 because there exists no clear and convincing evidence of the requi rements for termination listed under

subsection (g)(3)(A). Appellant insists that Appellee pre sented no evidence that the conti nuation of

the pare nt child re

lationship great ly d im inishes the children’s chances of early integration into a stable and permanent homeor that the conditions which lead to the children’s removal still exist. A

ppellant asserts that the fact that she presently cares for her two other

children in her home, which are not subject to a DHS investigation, establishes that the conditions giving

rise to the re moval of th

e (Bra ndt) child ren no longer exis t.We believe that Appe

llant has misinterpre ted th e la ngu age of § 36- 1-1 13( g). In construing statutes, we are to ascertain and give effect to the General Assembly ’s int entio ns. We must consider the statute as a whole in light of its gener al purpose and give

the word s utilized in

the statute their ord inary , commonly

accepted meaning. Computer Shoppe , Inc. v. St

ate , 780 S.W.2d 729, 735 (Ten

n. App. 19 89). An un ambiguo us statute must be inte

rprete d accor

ding to it s plain meaning. McClain v. Henry I. Siegel Co. , 834 S.W.2d 295, 296 (Tenn. 1992).

As we interpret the plain languag e of this statute, subs e ction (g) sets forth several grounds for te

rmination o f one’s p arenta l rights, “any

” of which are ap

propria te for do ing so if shown by clear

and convincing evidence. The record before us clearly r eveals the two grounds for termination on which the petition was filed and on whichAppellee relies, as those identified under § 36-1-113(g)(1) - abandonment a nd (2) - parental noncompliance w ith the statement of responsibilities in a plan of care. It is unnecessary , therefore, in thepresent case to consider whether the conditions for termination identified in (3)(A) have been satisfied.

Appellant next asser

ts that the

record fails to e stabli sh by cl ear and convincing evidence that sheabandoned her children as such is defined under § 36-1-102(1)(A). Subsections (D) and (E) of § 36-1-102 provide:

For purposes of this subdivision (1) , “willfull y f ailed to support” or “willf

ully failed to ma ke reasonable pay

ments toward such child’s support” means that, for a period of four (4) c onsecutive months, no monetary support wa s paid or that the amount of support paid is tok

en suppor t; For purposesof this sub division (1 ), “willf ully failed to visit” means the willful failure, for a period of four (4) consecutivemonths, to visit or engage in more than token visitation;
Appellant maintains that a “willful” failureto pay support cannot be shown when she
was unaware of any

obligation to do so. Appellant does not dispute the fact that she failed to make any payments toward the

support of her children. Shepoints only to the fact that she was under no court order to do so and was otherwise unaware of this responsibility. We dare say that the support of one’s children should not be conditioned upon whether one has been placed under a court order to do so. According to the statute, a “willful” failure to pay support means no monetary support waspaid

for a period of four (4) consecutive months. The statute does not require the parent to first be placed under a court order. In any event, Appellant testified that she received corr espondence from Appellee concerning her obligation in this reg ard. We conclude that the record establishes by clear and convincing evidence that Appellant “willfully failed to support” her children as such is defined by statute.
Appellant

also asserts that the record does not establish by clear a nd convincing evidence her willf

ul failur e to visit the chil dren for the sta ted time period. It is contended that Appellee “a ct iv el y p ar

ticipated in discouraging [Appellant] from visiting her children” a nd, thus, her failure to visit cannot be seen as willful. It is not disputed that Appellant’s visitation with the children ceased

July 13, 1995, five months prior to the filing of the petition. Apparently Appellant contendsthat she w as “mani pulate[d]” into doing so

when Mr. Player

informed her that a petition would be filed seeking to terminate her parenta l rights, thereby

suggesting that any

future efforts on her par t would be

of little im

port.
First, it should be noted that Appellant testified that Player, upon infor ming her of Appellee’s intention to seek termination, also explained her right to continuevi siting with the children until the filing of the petition. As Player noted in his testimony, Appellee believed ther e
were other existing grounds on which to seek termination. More importantly , howev er, as we interpret the plain meaning of the sta

tute, aba ndonment c onsists of “ either”a willful f ailure to visit “or” a willful failure to support for the stated time period. Thus, a willful failure to support or make
reasona ble payments toward suc h support for fo ur (4) cons ecutive months is al one suff

icient to constitute an abandonment. It is, theref ore, unnec e ssary to consider this ar gument in light of our finding above. In any

event, we find the record to clearly establish a “willful” failureto visit by the appellant for purposes of the statute.

Fi na ll y, it is asserted that the trial court erredin terminating the parental rights of Appellant because the record does not establish by clear and convincing evidence t ha t she was in substantial noncompli ance with her statement of responsibilities. Section 36-1-113(g)(2) provides for terminat ion of one ’s pare

ntal rig hts if it is shown by clear a nd convincing evidence that the parent
was in “substantial noncompli ance” with the statement of responsibilities. See also T.C.A. § 37-2-403(a)(2)(C). Appellan t argue s that she

was “ try ing” to c omp ly with the plan of car e and of the
seven identified elements, she had completed two and “had worke d on” three others. Sh e points to the fact tha

t the tr ial judge made no specific finding of “ substantial” noncompliance and further contends that the trial court erred in failing to consider the fact that two other children remain in her homewhich are not subject to a DHS investigation which, she asserts, e stabl ishes t hat she can provide a suitable home for the children.

We reiterate that substantial noncompliance with the statement of

responsi bilities is only one of several grounds upon which parental rights may be terminated under § 36-1-113. We have previously de

termine d the record to establish an “abandonment” of the c hildren by the appe

llant
as it is defined by statute. However, in light of the gravity

of this matter and the extreme importance of the rights involved here, we have conside red the issue. It is alway s most unfortunate when circumstances present themselves to the extent that it is necessary to ter

minate the rights of

a paren t. Upon thorough review of the record now before us, however, we

are com pelled to conclude that the evidence presented supports a finding tha t App ellant is in substantial noncompliance with her statement of responsibilities as outlined in her plan of care. There is no indica tio n that she was
unawareof the objectives expected of her. Nor is there evidence that she was afforded insufficient opport unity

to attai n them. As to the children presently in her home, we find no error by the trial court in failing to conside

r this fact. It is the children herein name d with whom we are concerned in addre ssing the

issues before us.
Accordingly , we hold the record to support by a preponderance of

the evidence the trial court’s deci sion to termina te the pa rental r ights of the appe llant as to

the child ren her ein id en ti fi ed . C os ts ar e t ax ed to th e a pp el la nt , f or wh ic h e xe cu ti on ma y is su e i f n ec es sa ry.

____________________________________ FAR MER , J.

______________________________ CRAWFORD, P.J., W.S. (Conc urs)

______________________________HIG

HERS, J. (Conc

urs)