1

FILED

March 24, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE, ) C/A NO. 03A01-9706-JV-00213

DEPARTMENT OF )

CHILDREN SERVICES, )

 )

Petitioner-Appellee, )

 ) 

 ) APPEAL AS OF RIGHT FROM THE

 ) RHEA COUNTY JUVENILE COURT

v. )

 )

 )

 )

SHIRLEY MARIE DARR, )

 ) HONORABLE WILLIAM G. McPHEETERS,

Respondent-Appellant. ) JUDGE

For Appellant For Appellee

CAROL ANN BARRON JOHN KNOX WALKUP

Dayton, Tennessee Attorney General and Reporter

Nashville, Tennessee

DOUGLAS EARL DIMOND

Assistant Attorney General

General Civil Division

Nashville, Tennessee

O P I N I O N

AFFIRMED AND REMANDED Susano, J.
1

When the petition was filed, the Department of Children’s Services was

known as the Department of Human Services. For convenience, the Department

will be referred to as “DCS” throughout this opinion.

2

Mother and Mr. Stanley lived together for an unspecified period of

time, but they were never married.

3

In August, 1992, the children were removed from Mildred Darr’s physical

custody.

2

The trial court terminated the parental rights of

Shirley Marie Darr (“Mother”) with respect to her minor children,

Heather M. Stanley (DOB: February 12, 1989) and Tonya J. Stanley

(DOB: January 11, 1991). Mother appealed, contending that the

evidence preponderates against the trial court’s determination

that grounds exist to terminate her parental rights.

I. Procedural History

On May 15, 1992, the Tennessee Department of Children’s

Services (“DCS”)1 filed a petition for temporary custody of the

subject children. The petition was prompted by the fact that the

children had been sexually abused by their natural father, James

Stanley (“Stanley”).2 The petition for temporary custody

alleges, among other things, that “[t]he natural mother is unable

or unwilling to protect said children from harm.” Upon the

filing of the petition, an order was entered placing the

temporary care and custody of the children with DCS. On October

1, 1992, following a hearing, the trial court awarded the

children’s legal custody to DCS, and placed the children in the

physical custody of their maternal grandmother, Mildred Darr.3

The children have remained in foster care since the temporary

placement of May 15, 1992.
4

The petition also sought to terminate the natural father’s parental

rights; but he was not served with process in this proceeding.

3

On November 26, 1996, DCS filed a petition to terminate

Mother’s parental rights.4 After a full hearing, the trial court

terminated Mother’s parental rights. The court’s judgment,

entered May 20, 1997, finds, in part, as follows:

...the subject child has been in custody of

Petitioner for at least one (1) year: that

the continuation of the legal parent and

child relationship greatly diminishes the

child’s chances of early integration into a

stable and permanent home; that

Defendant,...Shirley Marie Darr, has

willfully abandoned the children, Tonya and

Heather Stanley, for more than four (4)

consecutive months next preceding the filing

of the petition in this cause; that the

defendant has failed to comply in a

substantial manner with the reasonable

responsibilities of the foster care plan, and

it is, therefore, for the best interest of

the said children and the public that all of

the Defendant’s, Shirley Marie Darr, parental

rights to the said children be forever

terminated and that the complete custody,

control and guardianship of the said child

should now be awarded to the State of

Tennessee, Department of Children’s Services,

with the right to place children, Tonya

Stanley and Heather Stanley, for adoption and

to consent to any adoption in loco parentis. 

This decree will have the effect of

terminating all the rights, responsibilities,

and obligations of the Defendant, Shirley

Marie Darr, arising from the parental

relationship, and the Defendant is not

hereinafter entitled to notice of proceedings

for the adoption of said children by another

nor has she any right to object to such

adoption or otherwise to participate in such

proceedings, or hereafter, at anytime, to

have any relationship, legal or otherwise,

with said children.

The judgment states that the court’s findings are “by clear and

convincing evidence.”
4
5

II. Standard of Review

In this non-jury case, our review is de novo upon the

record of the proceedings below; but the record comes to us with

a presumption of correctness that we must honor “unless the

preponderance of the evidence is otherwise.” Rule 13(d),

T.R.A.P. “The scope of review for questions of law is de novo

upon the record of the [trial court] with no presumption of

correctness.” Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn.

1997).

III. Law

A parent has a fundamental right to the care, custody

and control of his or her child. Stanley v. Illinois, 405 U.S.

645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). However, it is clear

that this right is not absolute; it may be terminated if there is

clear and convincing evidence justifying such termination under

the applicable statute. Santosky v. Kramer, 455 U.S. 745, 102

S.Ct. 1388, 71 L.Ed.2d 599 (1982).

The issues raised in the pleadings, and the trial

court’s findings, cause us to focus on the following statutory

provisions:

T.C.A. § 37-1-147

(a) The juvenile court shall be authorized to

terminate the rights of a parent or guardian to

a child upon the grounds and pursuant to the

procedures set forth in title 36, chapter 1,

part 1.
6

* * *

T.C.A. § 36-1-113

(a) the chancery and circuit courts shall

have concurrent jurisdiction with the

juvenile court to terminate parental or

guardianship rights to a child in a separate

proceeding, or as a part of the adoption

proceeding by utilizing any grounds for

termination of parental or guardianship

rights permitted in this part or in title 37,

chapter 1, part 1 and title 37, chapter 2,

part 4.

* * *

(c) Termination of parental or guardianship

rights must be based upon:

(1) A finding by the court by clear and

convincing evidence that the grounds for

termination or [sic] parental or guardianship

rights have been established; and

(2) That termination of the parent’s or

guardian’s rights is in the best interests of

the child.

* * *

(g) Termination of parental or guardianship

rights may be based upon any of the following

grounds:

(1) Abandonment by the parent or guardian, as

defined in [T.C.A.] § 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 has 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 conditions which led to the child’s

removal or other conditions which in all

reasonable probability would cause the child

to be subjected to further abuse or neglect

and which, therefore, prevent the child’s

return to the care of the parent(s) or

guardian(s), still persist;

 (ii) There is little likelihood that these

conditions will be remedied at an early date

so that the child can be returned to the

parent(s) or guardian(s) in the near future;

and

(iii) The continuation of the parent or

guardian and child relationship greatly
7

diminishes the child’s chances of early

integration into a stable and permanent home.

* * *

T.C.A. § 36-1-102

As used in this part, unless the context

otherwise requires:

(1)(A) “Abandonment” means, for purposes of

terminating the parental or guardian rights

of parent(s) or guardian(s) of a child to

that child in order to make that child

available for adoption, that:

(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;

* * *

(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 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;

* * *

T.C.A. § 37-2-403
8

(a)(1) Within thirty (30) days of the date of

foster care placement, an agency shall

prepare a plan for each child in its foster

care....

* * *

(2)(A) The plan for any child in foster care

shall include a statement of responsibilities

between the parents, the agency and the

caseworker of such agency.

* * *

(C) Substantial noncompliance by the parent

with the statement of responsibilities

provides grounds for the termination of

parental rights, notwithstanding other

statutory provisions for termination of

parental rights,...

(Emphasis added).

IV. Analysis

The petition to terminate in the instant case was based

on multiple grounds: abandonment because of a failure to visit,

see §§ 36-1-113(g)(1) and 36-1-102(1)(A)(i); abandonment because

of a failure to support, see id.; substantial noncompliance by

Mother with a plan of care, see T.C.A. § 36-1-113(g)(2); and the

existence of facts that implicate the provisions of T.C.A. § 36-

1-113(g)(3)(A)(i)-(iii). It is clear that we must affirm the

trial court’s judgment if any one of these bases existed in this

case.

In March, 1994, Mother decided to move to Florida to be

with her mother, Mildred Darr, who had recently moved there from

Tennessee. At the time, the children were in foster care in Rhea

County and Mother was operating under a plan of care, which had
9

as its goal the reunification of the children with Mother. We

agree with the trial court’s observation as set forth in the

memorandum opinion:

While she may have made some cursory effort

to see the children, after March of 1994 she

failed to make any real efforts to see the

children and, in fact, moved to Florida where

it would be virtually impossible to visit

with her children on any regular basis. Too,

having never paid any child support

whatsoever, or even sending birthday and

Christmas presents to either of these

children, evidences a real lack of interest

in these children. Her demeanor in court

suggested that it was everybody else’s

“fault” that she had lost her children. She

testified, too, that she had lived with 4

different men, none of which she married.

The proof reflects that Mother visited with the children on

January 29, 1996, when she was in Rhea County to discuss DCS’s

plan of care for her children. At that time, the goal of the

plan was changed from reunification of the family to adoption;

but, in any event, there is no credible proof that Mother was

advised that she could not visit with her children. However, she

had only one visit after January, 1996, and that one visit, in

August, 1996, was of such short duration as to qualify as “token

visitation” as that term is defined in T.C.A. § 36-1-102(1)(C).

The evidence reflects that Mother did not send the

children any presents for Christmas in 1995 or 1996. There was

also proof that she did not send either child a present on the

child’s birthday.
10

It is undisputed that Mother did not contribute to the

support of her children even though the plan of care provides

that she was to pay support of $50 per week. At the time of the

hearing, she testified that her income was a gross of $540 every

two weeks. When asked why she did not send support, she

testified she thought that the $50 per week obligation was unfair

and was trying to get it reduced to $25 per week.

The evidence before us does not preponderate against

the trial court’s finding, by clear and convincing evidence, that

grounds for termination, i.e., abandonment by failing to visit

and failing to support, “have been established.” See T.C.A. §

36-1-113(c)(1). Furthermore, the evidence does not preponderate

against the trial court’s finding, again by clear and convincing

evidence, that termination “is in the best interests of the

child[ren].” See T.C.A. § 36-1-113(c)(2). Because “abandonment”

under T.C.A. §§ 36-1-113(g)(1) and 36-1-102(1)(A)(i) has been

clearly shown in this case, we do not find it necessary to

address the trial court’s alternative bases for termination under

T.C.A. §§ 36-1-113(g)(2) and (3)(A)(i)-(iii).

The judgment of the trial court is affirmed. Costs on

appeal are taxed to the appellant. This case is remanded to the

trial court for such further proceedings as may be necessary,

consistent with this opinion.

__________________________

Charles D. Susano, Jr., J.

CONCUR:
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________________________

Houston M. Goddard, P.J.

________________________

Herschel P. Franks, J.