                     IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                                            April 2, 2003 Session

            KIMBERLY SUE JENKINS v. JODY DALE JENKINS, ET AL.

                          Appeal from the Circuit Court for Hamilton County
                            No. 01D921 Jacqueline E. Schulten, Judge

                                             FILED MAY 30, 2003

                                        No. E2002-01979-COA-R3-CV


        Kimberly Sue Jenkins (Mother)1 appeals the Trial Court’s decision to terminate her parental
rights regarding her daughter (Child). In the final decree of divorce between Mother and Jody Dale
Jenkins (Father), custody of Child was awarded to Child’s paternal grandmother, Appellee E. Jean
Dabovich (Grandmother). Mother filed a petition requesting modification of the visitation order set
forth in the divorce decree. Grandmother filed a counter-petition for termination of Mother’s
parental rights. The Trial Court found that there had been no visitation between Mother and Child
for more than four years, and that Mother had never paid any child support as ordered in the divorce
decree. The Court found it in Child’s best interest to terminate Mother’s parental rights. We affirm
the judgment of the Trial Court.

   Tenn.R.App.P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; Cause
                                       Remanded

HOUSTON M. GODDARD , P.J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
CHARLES D. SUSANO, JR., JJ., joined.

Brian M. House, Ringgold, Georgia, for the Appellant, Kimberly Sue Jenkins

Glenna M. Ramer, Chattanooga, for the Appellee, E. Jean Dabovich

                                                     OPINION

      Mother and Father were divorced by order of the Superior Court of Catoosa County, Georgia,
on May 6, 1998. In the divorce decree, the Court held as follows:

                   The Court grants the Motion filed by the paternal grandmother, that
                   full and legal custody of the parties’ minor child, JOCELYN
                   ELIZABETH LONG, date of birth 5/19/94, shall be vested in the

       1
           Mother has rem arried and her nam e presently is Kimberly Sue B iles.
                  paternal grandmother, E. JEAN DABOVICH. The Court finds as a
                  matter of fact that both parents have, in the past, failed to provide a
                  wholesome and/or stable home for the child. It is in the best interests
                  of the child for the paternal grandmother to have full custody of the
                  child.     It shall be the right of the Plaintiff/Father and
                  Defendant/Mother to visit with the child and have the child visit with
                  them at all reasonable times and all reasonable places as the parties
                  and the grandmother may agree.

        On May 3, 2001, Mother filed a petition in the Hamilton County Circuit Court requesting that
the Court set specific dates and times for her visitation with Child. Grandmother answered and filed
a counter-petition for termination of Mother’s parental rights. Upon oral motion by Grandmother,
which was agreed to by Mother, the Father was dismissed from this action and he is not involved in
this appeal.

         After a hearing held on August 7, 2002, the Trial Court found as follows:

                           Based upon all of the evidence (which the Court found to be
                  overwhelming), the Court finds that there has been absolutely no
                  support paid by [Mother] for the benefit of Jocelyn Jenkins2 for a
                  period in excess of four (4) years. The Court notes, in particular, that
                  this action has been pending for in excess of one year and during this
                  year, while [Mother] was presumably on notice of her obligation to
                  pay support, she has paid none.
                           Based upon all of the evidence (which the Court found to be
                  overwhelming), the Court finds that there has been no visitation
                  between [Child] and [Mother] for a period in excess of four (4) years.
                  Again, the Court notes that while this action has been pending for one
                  (1) year there has been no request for visitation nor has there been any
                  visitation between [Child] and [Mother].
                           Based upon the lack of visitation and the lack of support, the
                  Court finds that [Mother] has abandoned [Child] as that term is
                  defined by statute.

(Parentheses shown as brackets in original.) The Court accordingly ordered Mother’s parental rights
terminated. Mother appeals, raising the issue, as stated in her brief, of whether the Trial Court erred
in the termination of her parental rights.




         2
           The Trial Court’s order refers to Child by the name of “Jocelyn Jenk ins” while the divorce decree from Cato osa
County, Georgia Superior Court calls her “Jocelyn Elizabeth Long.” There is nothing in the record showing the reason
for this discrepancy.

                                                           -2-
         Our standard of review in a termination of parental rights case was set forth in the recent, and
factually similar, case of Tennessee Dept. of Children’s Services v. L.F., an opinion of this Court
filed in Knoxville on April 30, 2003:

                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 as to the trial court's factual determinations--a
                presumption that we must honor unless the evidence preponderates
                against those findings. Tenn. R.App. P. 13(d); Wright v. City of
                Knoxville, 898 S.W.2d 177, 181 (Tenn.1995); Union Carbide Corp.
                v. Huddleston, 854 S.W.2d 87, 91 (Tenn.1993). The trial court's
                conclusions of law, however, are accorded no such presumption.
                Campbell v. Florida Steel Corp., 919 S.W.2d 26, 35 (Tenn.1996);
                Presley v. Bennett, 860 S.W.2d 857, 859 (Tenn.1993).

                It is settled that "parents have a fundamental right to the care,
                custody, and control of their children." In re Drinnon, 776 S.W.2d 96,
                97 (Tenn.Ct.App.1988) (citing Stanley v. Illinois, 405 U.S. 645, 92
                S.Ct. 1208, 31 L.Ed.2d 551 (1972)). However, this right is not
                absolute and may be terminated if there is clear and convincing
                evidence justifying termination under the pertinent statutory scheme.
                Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599
                (1982). Clear and convincing evidence is evidence that "eliminates
                any serious or substantial doubt concerning the correctness of the
                conclusions to be drawn from the evidence." O'Daniel v. Messier, 905
                S.W.2d 182, 188 (Tenn.Ct.App.1995).


       T.C.A. 36-1-113(c) provides that termination of parental or guardianship rights must be based
upon a finding, by clear and convincing evidence, that the grounds for termination of parental or
guardianship rights have been established, and that termination is in the best interests of the child.
T.C.A. 36-1-113(g) states that initiation of termination of parental rights may be based upon the
ground of abandonment by the parent, as defined in T.C.A. 36-1-102 as follows:

                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


                                                   -3-
               have willfully failed to support or make reasonable payments toward
               the support of 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[.]

       As this Court noted in the L.F. case,


               The statutory definition of "willfully failed to support" and
               "willfully failed to make reasonable payments toward such child's
               support," as defined in Tenn.Code Ann. § 36-1-102(1)(D), was
               held to be unconstitutional by the Tennessee Supreme Court in In
               re Swanson, 2 S.W.3d 180, 188 (Tenn.1999). The court in
               Swanson stated that, pending legislative action to cure the statute's
               constitutional infirmity, actions in juvenile court seeking to
               terminate parental rights for abandonment based upon a failure to
               support would be controlled by the statutory definition of
               abandonment in effect prior to the enactment of the adoption code,
               adopted effective January 1, 1996. Under the prior provision, an
               abandoned child was defined as one "whose parents or other
               persons lawfully charged with his [or her] care and custody ...
               willfully fail to support or make payments toward his [or her]
               support for a period of four (4) consecutive months." Tenn.Code
               Ann. § 37-202(7) (Supp.1970) (repealed effective January 1,
               1996). See Pack v. Rogers, 538 S.W.2d 607, 609, 610
               (Tenn.Ct.App.1976).


         In the present case, Mother does not dispute that she has never paid child support, despite
the order in the divorce decree that she pay $20 per week in child support. While it is not clear
from the record that Mother was employed such that she would have been able to make payments
during the entire period of time since the decree, at the time of her deposition, she was employed
in a full-time position earning over $10 per hour. She testified that she has been so employed
since September of 2000.


                                                   -4-
         The primary excuse Mother offers for her failure to pay any child support is her testimony
that Grandmother refused to accept support and told her she did not need it. This assertion is
contradicted by Grandmother, who testified that Mother told her that “it would be a cold day in H
before she ever paid child support.” Grandmother testified that Mother never sent Child a card or
gift for Christmas or her birthday.


        Regarding visitation, it is undisputed that Mother had three or four visits with the Child in
1998 and has had no visitation since. Mother testified to the effect that Grandmother had made it
difficult to contact her and was reluctant to allow Mother to visit with her daughter.
Grandmother testified that Mother did not request any visitation after 1998.


        The Trial Court obviously credited Grandmother’s testimony on these issues, which are
factual determinations, supported by clear and convincing evidence, that we decline to disturb on
appeal. Based on our review of the record and application of the pertinent statutory authorities,
we find no error in the Trial Court’s holding that Mother has abandoned her Child due to her
failure to pay child support and complete absence of visitation for over four years.


         Dr. Irene Ozbek, a child psychiatrist who met with and examined Child on two
occasions, testified at the hearing. Dr. Ozbek stated that Grandmother was Child’s
“psychological mother.” She testified that Child “was very clear” that she did not want to see her
Mother, and that “the memories [Child] has are of her mother pushing cigarettes down her throat
until she gagged and pouring chocolate milk on her.”


        The Trial Court found that it would be “extremely psychologically disruptive” to allow
Mother to re-enter Child’s life after over four years, and that it is in Child’s best interest to
terminate Mother’s parental rights. The record contains clear and convincing evidence which
fully supports this finding.


      For the foregoing reasons the judgment of the Trial Court is affirmed and the cause
remanded for collection of costs below. Costs of appeal are adjudged against the Appellant,
Kimberly Sue Jenkins, and her surety.




                                              _________________________________________
                                              HOUSTON M. GODDARD, PRESIDING JUDGE




                                                 -5-
