                    COURT OF APPEALS OF TENNESSEE

                            AT KNOXVILLE              FILED
                                                       March 24, 1998

STATE OF TENNESSEE,             )     C/A NO. 03A01-9706-JV-00213
                                                    Cecil Crowson, Jr.
DEPARTMENT OF                   )                     Appellate C ourt Clerk
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 IO N




AFFIRMED AND REMANDED                                            Susano, J.

                                  1
            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.




      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
            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
       The petition also sought to terminate the natural father’s parental
rights; but he was not served with process in this proceeding.

                                      3
4
                      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.


                                       5
                *    *    *

              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


                      6
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




                      7
         (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


                                  8
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.




                                 9
          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:


                                  10
________________________
Houston M. Goddard, P.J.



________________________
Herschel P. Franks, J.




                           11
