                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                  MARCH 8, 2001 Session

   IN THE MATTER OF: DAKOTA JEAN HOOVER-CRAWFORD,
      COLTON RAY THOMAS & DUSTY BRANDON THOMAS
STATE OF TENNESSEE, DEPARTMENT 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 rights to three of her minor children. Following a hearing, the Juvenile Court
of Cannon County entered an order terminating the Appellant’s parental rights. The Appellant
appeals the trial court’s order terminating her parental 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

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY KIRBY LILLARD, J., joined.

Adam T. Dodd, Murfreesboro, TN, for Appellant

Paul G. Summers, Attorney General and Reporter, Elizabeth C. Driver, Assistant Attorney General,
for Appellee

Susan G. Cox, Murfreesboro, TN, Guardian Ad Litem

                                            OPINION

                                I. Facts and Procedural History

       The Appellant, Niki Lynn Crawford Thomas (“Ms. Thomas”), has three minor children,
Dakota Jean Hoover Crawford (d.o.b. May 29, 1992), Colton Ray Thomas (d.o.b. March 29, 1995),
and Dusty 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 was in the process of being evicted, the water and
electricity had been turned off, and there was little means of support. DCS also noted that Ms.
Thomas had a history of drug use and prostitution.

        On September 25, 1997, DCS filed a petition in the Juvenile 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 treated for a broken leg. On October 7, 1997, Ms.
Thomas and her husband, Les Thomas (“Mr. Thomas”),2 pro se, signed a consent decree ordering
DCS to retain temporary custody of the children. 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”). Despite 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 February 6, 1998. DCS provided Ms. Thomas with a packet of written materials
explaining the grounds for termination of parental rights. A review hearing to assess compliance
with the plan of care was held on September 29, 1998. Ms. Thomas appeared pro se at the hearing.
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 and
individual mental health issues, parenting training approved by Department of Children’s Services,
established nor maintained housing for the children, provided verification of financial circumstances,
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 the following requirements upon Ms.
Thomas:

                  1. Ms. Thomas will participate in treatment that may include the following: detox,
                  inpatient, outpatient, group, individual, and family counseling.
                  2. Ms. Thomas will enroll in a twelve step N/A program, obtain a sponsor, and
                  attend ninety meetings in ninety days. Ms. Thomas must provide written verification
                  of attendance to all meetings.
                  3. Ms. Thomas will remain free of all opiates and mood-altering substances for a
                  minimum of six months.


       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.

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               4. Ms. Thomas will submit to random drug screens.
               5. Ms. Thomas will secure and maintain suitable/safe housing with adequate
               furnishings 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 obtain a parenting assessment by a DCS approved counselor to
               identify strengths and areas of concern. Ms. Thomas will follow recommendations.
               8. Ms. Thomas will complete individual counseling by a licensed and approved DCS
               counselor to address her own victimization, marriage conflicts, communication,
               separation, and loss issues.
               9. Ms. Thomas, if she continues to make Mr. Les Thomas a part of her life, will
               assume responsibility for getting him to cooperate with taking the recommended
               psycho-sexual evaluation and follow recommendations.
               10. Ms. Thomas will 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
               by diligently working her plan of care to achieve reunification or cooperating with
               giving custody of children to an appropriate relative resource or making children
               available for adoption by surrender of parental rights or termination of parental rights
               through the court.
               12. Ms. Thomas will visit with the children in a supervised setting a minimum of
               four hours per month to demonstrate parenting skills and spend quality time with the
               children. Ms. Thomas will not discuss a potential return home with the children or
               make related promises.

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 hearing 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 in foster care until there was strict compliance with the
1998 plan of care nunc pro tunc December 22, 1998.

        On June 29, 1999, DCS filed a petition for termination of parental rights. The petition
alleged that parental rights should be terminated based on abandonment, substantial noncompliance
with the plan of care, and failure to correct the circumstances, conduct, or conditions which led to
the children’s removal. The trial court appointed counsel to represent Ms. Thomas and appointed
a guardian ad litem to represent the children in the petition. On February 15, 2000, Ms. Thomas filed
a petition for custody. 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 DCS case worker assigned to Ms. Thomas’


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family since the children first entered state custody. Ms. Nichols testified that Ms. Thomas had
visited with the children on February 18, 2000. The previous two documented visits occurred on
February 23, 1999 and for two hours on May 20, 1999. Ms. Nichols also testified that Ms. Thomas
had failed to provide any child support while the children were in state custody. Finally, Ms. Nichols
testified that Ms. Thomas had failed to substantially comply with the 1998 plan of care. Specifically,
Ms. Thomas had failed to provide verification that she attended or completed N/A, failed to provide
verification that 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 location, failed to obtain
a parenting 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 that 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 facility in Nashville beginning on February 13, 1998. She testified that she
left the clinic in December, 1998 because DCS wanted her off all mood-altering substances. Ms.
Thomas testified that she received treatment from another methadone clinic after she moved to
California in May, 1999. Ms. Thomas testified that she was unable to visit her children from
February 23, 1999 until May 20, 1999 due to lack of transportation and being hospitalized. Ms.
Thomas admitted that, with the exception of birthday and Christmas gifts, she failed to pay child
support while the children were in state custody. Ms. Thomas claimed that she was unaware of her
obligation to pay child support. Ms. Thomas testified that she completed parenting classes; however,
she admitted that she failed to complete a parenting assessment. Finally, Ms. Thomas testified that,
with the 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 trial court issued a final decree of guardianship entered nunc pro tunc
February 22, 2000. The trial court stated that “[u]pon the evidence presented, arguments of counsel,
and the entire record, the Court finds that upon clear and convincing evidence, the Petition to
Terminate Parental Rights of the Defendant . . . is well taken and should be sustained and relief
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 the children or only engaged 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’ parental rights
be terminated. This appeal followed.




        3
           The parental rights of Mr. Thomas were terminated by default order entered June 20, 2000 nunc pro tunc
February 2 2, 2000 . Mr. Th omas is not a party to this app eal.

                                                      -4-
                                      II. Standard of Review

         Parents have a fundamental right to the care, custody, and control of their 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 rights have been established and that termination is in the best interests of the child. See
TENN . CODE ANN . § 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 heightened standard of review, we must first review the trial court’s findings in
accordance with section 13(d) of the Tennessee Rules of Appellate Procedure. That review is de
novo with a presumption of correctness as to the trial court’s factual findings, unless the
preponderance of the evidence is otherwise. See TENN. R. APP . P. 13(d). For issues of law, the
standard of 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
and convincing 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 trial court’s failure to appoint
counsel for the initial dependency and neglect proceeding and the review hearing in September,
1998;
2) Whether Ms. Thomas knowingly and voluntarily waived her right to a preliminary and
adjudicatory hearing on the dependency and neglect petition in accordance with Rule 16(b) of the
Tennessee Rules of Juvenile Procedure; and
3) Whether the trial court’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 violated by the trial court’s failure to
appoint counsel for the initial dependency and neglect proceeding and the review hearing in
September, 1998. Ms. Thomas also argues that she failed knowingly and voluntarily to waive her
right to a preliminary and adjudicatory hearing on the dependency and neglect petition in accordance
with Rule 16(b) of the Tennessee Rules of Juvenile Procedure. Ms. Thomas does not challenge the
procedural protections she was afforded at the termination hearing.


                                                  -5-
         In State of Tennessee v. Wilkerson, No. 03A01-9810-JV-00341, 1999 WL 775759, at *1
(Tenn. Ct. App. Sept. 15, 1999), the Tennessee Court of Appeals addressed the issue of whether an
initial lack of due process in a dependency and neglect proceeding was remedied by the full
procedural protections afforded 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 denied his due process rights.
See id. The court rejected Wilkerson’s argument, stating:

               Wilkerson asserted his plenary rights at the termination hearing,
               and any initial lack of due process was remedied 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 ‘dependency and neglect’ proceeding in
               the Juvenile Court, there is no claim of such deprivation in
               the . . . action to terminate parental rights.”

Id. (quoting Tennessee Dep’t of Human Servs. v. Grove, 1989 WL 3137, at *3 (Tenn. Ct. App. Jan.
20, 1989)). Thus, the court held that the trial court’s decision should not be reversed for any
deprivation of due process that occurred at an initial dependency and 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 afforded full procedural
protection at the termination proceeding upon which this appeal is based. Rather, Ms. Thomas
argues a lack of due process and violation of the Tennessee Rules of Juvenile Procedure at the
dependency and neglect hearing and the review hearing in September, 1998. Ms. Thomas’ argument
concerning any initial proceedings fails to establish a basis to overturn the trial court’s decision
following the termination proceeding. Ms. Thomas received full procedural protection at the
termination proceeding. Ms. Thomas received notice of the termination proceeding. She was
informed of her right to counsel and was appointed counsel. The termination proceeding was
rescheduled at Ms. Thomas’ request. Finally, she was present and testified at the termination
proceeding and had the full assistance of counsel. In accordance with Wilkerson, we find that any
lack of due process or violation of the Tennessee Rules of Juvenile Procedure that may have
occurred at any initial proceeding was remedied by the full procedural protection Ms. Thomas
received at the termination proceeding. Accordingly, we find Ms. Thomas’ issues concerning lack
of due process and violation of the Tennessee Rules of Juvenile Procedure to be without merit.

                                 Termination of Parental Rights

       Ms. Thomas argues that the trial court’s decision to terminate parental rights was not
supported by clear and convincing evidence. Specifically, Ms. Thomas argues that the trial court
erred by finding that DCS established grounds for termination of parental rights by clear and



                                                 -6-
convincing evidence based upon abandonment and substantial noncompliance with the plan of care.


         In order to terminate parental rights, the court must find by clear and convincing 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 the child. See
TENN. CODE ANN . § 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 parental rights may be based upon any of the
following grounds: abandonment by the parent or guardian, as defined 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 TENN. CODE ANN . § 36-1-113(g)(1), (2) (2000). In reviewing termination
decisions, Tennessee courts have recognized that the existence of any one of these grounds will
support a termination of parental rights. See In re 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 terminating Ms. Thomas’ parental rights if the record contains clear and
convincing evidence to support either abandonment or substantial noncompliance with the plan of
care. See id. We shall address each of these grounds for termination in turn.

                                          Abandonment

       Section 36-1-102 defines abandonment, for purposes of terminating parental rights, as:

               (1)(A)(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;
               (B) For purposes of this subdivision (1), “token support” means
               that the support, under the circumstances of the individual
               case, is insignificant given the parent’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 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


                                                -7-
                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.

TENN. CODE ANN . § 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 payments toward
such child’s support” to be unconstitutional because they “in effect create an irrebuttable
presumption that the failure to provide monetary support for the four months preceding the petition
to terminate parental rights constitutes abandonment, irrespective of whether that failure was
intentional.” Id. at 188. The Swanson court held that the definition as it existed under the prior
statute should be applied until the legislature amends the statute. See id. at 189. “Under the prior
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. CODE ANN . § 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 prior to filing the petition 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. During the four months immediately preceding the filing of the petition, Ms.
Thomas visited the children on one occasion, May 20, 1999, for two hours. Ms. Thomas testified
that she was hospitalized from March 26 to April 29, 1999. DCS failed to present any evidence
controverting Ms. Thomas’ testimony. We cannot say that, during the approximately one month
period that Ms. Thomas was hospitalized, this constituted an intent to abandon the children. Because
Ms. Thomas did not 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
standard articulated by the Swanson court. Accordingly, we find that the trial court erred by finding
that Ms. Thomas abandoned the children for failure to visit the children during the four months
immediately preceding the filing of the petition to terminate parental rights.

        The trial court also found that Ms. Thomas abandoned the children in that she failed to
contribute to the support of the children from the time they entered state custody. With the exception
of birthday gifts, Christmas gifts, and lunches during visitation times, Ms. Thomas failed to
contribute any child support. Ms. Thomas argues that failure to pay child support did not constitute
abandonment because DCS never informed her of her obligation to pay child support. Ms. Thomas
argues that she could not have acted intentionally in failing to support the children because she was
unaware of her obligation. We disagree. DCS provided Ms. Thomas with written information
explaining that her parental rights could 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


                                                  -8-
parental rights and was given an explanation of its contents. We find that Ms. Thomas was aware
of her obligation to pay child support. Because she intentionally failed to pay child support the entire
time the children were in state custody, we find that Ms. Thomas abandoned the children.
Accordingly, we find that the trial court did not err by finding by clear and convincing evidence that
Ms. Thomas abandoned the children for failure to pay child support while the children were in state
custody.

                          Substantial Noncompliance with Plan of Care

         The trial court also found that Ms. Thomas failed 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 program, obtain a sponsor, and attend ninety meetings in ninety days. Ms. Thomas
failed to enroll in a N/A program. The plan of care required Ms. Thomas to remain free of all opiate
and mood-altering substances for a minimum of six months. Ms. Thomas failed to provide
verification that she remained free of all opiate and mood-altering substances for a minimum of six
months. The plan of care required Ms. Thomas to submit to random drug screens. Ms. Thomas
refused random drug screens on two separate occasions. The plan of care required Ms. Thomas to
obtain a parenting 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 counselor. Ms. Thomas failed to obtain individual counseling 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 psycho-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 record in this case
clearly demonstrates that Ms. Thomas failed to substantially comply with the 1998 plan of care.
Accordingly, we find that the trial court did not err by finding by clear and convincing evidence that
Ms. Thomas substantially failed to comply with the plan of care.

       Termination of Ms. Thomas’ parental rights is warranted under either the ground of
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 clear and convincing evidence that
termination of Ms. Thomas’ parental rights is in the children’s best interests.




                                                  -9-
                                          IV. Conclusion

       For the foregoing reasons, the decision of the trial court is affirmed. Costs of this appeal are
taxed against the Appellant, Niki Lynn Crawford Thomas, for which execution may issue if
necessary.




                                                        ___________________________________
                                                        ALAN E. HIGHERS, JUDGE




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