BARBARA GATLIN,                            )
                                           )
      Petitioner/Appellant,                )
                                           )
VS.                                        )   Appeal No.
                                           )   01-A-01-9607-JV-00311
STATE OF TENNESSEE                         )
DEPARTMENT OF HUMAN                        )
SERVICES,                                  )   Davidson Juvenile
                                           )   No. 09-47-86
      Respondent/Appellee.                 )
                                           )
IN THE MATTER OF:

FELICIA GATLIN,
                                           )
                                           )
                                           )
                                                                   FILED
a child under the age of 18.               )                       February 5, 1997

                                                               Cecil W. Crowson
                     COURT OF APPEALS OF TENNESSEE            Appellate Court Clerk
                       MIDDLE SECTION AT NASHVILLE


APPEALED FROM THE JUVENILE COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE

THE HONORABLE ANDREW J. SHOOKHOFF, JUDGE




KATHLEEN G. MORRIS
P. O. Box 128091
Nashville, Tennessee 37212
       Attorney for Petitioner/Appellant

CHARLES W. BURSON
Attorney General and Reporter

SUE A. SHELDON
Assistant Attorney General
Cordell Hull Building, 2nd Floor
426 5th Avenue North
Nashville, Tennessee 37243-0499
       Attorney for Respondent/Appellee



                          REVERSED AND REMANDED



                                               BEN H. CANTRELL, JUDGE


CONCUR:
TODD, P.J., M.S.
LEWIS, J.
                                 OPINION


              The Juvenile Court of Davidson County terminated Barbara Gatlin’s

parental rights respecting her ten year old daughter, Felicia. Because we find that the

record does not contain clear and convincing evidence of abandonment, we reverse.



                                           I.



              The United States Constitution protects a parent’s fundamental right to

the care and custody of his or her children. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct.

1208, 31 L.Ed.2d 551 (1972). The Tennessee Constitution provides the same

protection. Nale v. Robertson, 871 S.W.2d 674 (Tenn. 1994). This right continues

until the parent consents to relinquish it, abandons the child, or forfeits the right by

some conduct that substantially harms the child. O’Daniel v. Messier, 905 S.W.2d

182 (Tenn. App. 1995). The parent’s conduct allowing the state to terminate the

parent-child relationship must be established by clear and convincing evidence. Id.



              This case involves a claim that Ms. Gatlin abandoned Felicia. Under the

statutes then in effect, a parent was deemed to have abandoned her child when she

wilfully failed to visit or wilfully failed to support or make reasonable payments toward

the child’s support for four consecutive months immediately preceding the

commencement of the action seeking an order of abandonment. See Tenn. Code

Ann. § 37-1-102(b)(1)(1994 Supp.). The petition to terminate Ms. Gatlin’s parental

rights was filed on November 27, 1995.




                                          -2-
                                                II.



                The record shows that Ms. Gatlin has a history of drug addiction. In

1993 she placed her four children with other members of her family and lived here and

there in a series of temporary arrangements. She testified that she was on drugs and

did not want her kids to be around her when she was in that condition.



                In 1994, the Juvenile Court of Davidson County, on the petition of

Felicia’s aunt with whom Felicia had been staying, found her to be dependent and

neglected and placed her in her aunt’s custody. In March of 1995, Felicia came into

contact with the Department of Human Services (DHS) when she ran away from her

aunt’s home. Ms. Gatlin contacted the juvenile court and DHS but was told that

without a job or a place to live, there was nothing that she could do to regain custody

of Felicia. She made no other attempts to contact the child; neither did DHS contact

her.1



                After the March 1995 incident, DHS took action to provide temporary

shelter for the child and on May 5, 1995 formally took custody. Felicia was placed in

a foster home with a woman who requested custody because she learned about

Felicia’s situation from a friend. In September of 1995 Felicia saw her mother in a

housing project where Felicia lived in her foster home. The mother and child visited

for a brief time and Ms. Gatlin got the foster mother’s telephone number. Ms. Gatlin

called her daughter frequently and asked the foster mother if she could visit the child.

The foster mother denied Ms. Gatlin the right to visit and referred her to DHS. The

foster mother did, however, get the impression that the mother and child loved each

other.




         1
        DHS did mak e some attempts to contact Ms. Gatlin, but by July of 1995 the Department had
decided to seek a term ination of he r parenta l rights. W e do not express an opinion abo ut whether
DHS’s efforts satisfied the “diligence” required by the statutes.

                                                -3-
              Ms. Gatlin spent the month of November in jail on an assault charge

brought by her boyfriend. While in jail she attended a drug treatment program, and

at the time of the hearing below (February 15, 1996), she had been tested for drugs

three times with negative results. She had gotten a job (the day before the hearing)

and was seeking a second job.



              We think the proof fails to show that Ms. Gatlin wilfully failed to visit or

wilfully failed to support Felicia for the four month period prior to November 27, 1995.

Admittedly, Ms. Gatlin’s conduct since 1993 has been worthy of condemnation. She

lived a life dominated by drugs and severely neglected her children. But the law

recognizes a difference between neglect and abandonment. Neglect may result in a

termination of parental rights, but only when it persists for more than six months after

the child is removed from the home and there is little likelihood that the condition can

be remedied at an early date. See Tenn. Code Ann. § 37-1-113(g)(3). Whether Ms.

Gatlin’s parental rights may yet be terminated under this provision remains to be seen.



              However, in September of 1995 Ms. Gatlin and Felicia met by chance

in the project where Felicia lived. After that chance encounter Ms. Gatlin tried to visit

her daughter, but was told that she should proceed through DHS. She testified that

she did not contact DHS because she had been told previously that she could not get

her daughter back unless she had a home and a job. She did telephone her

daughter. During the month of November, Ms. Gatlin was in jail. The proof is not

clear and convincing that Ms. Gatlin wilfully failed to visit her daughter.



              We think the proof also fails to establish that Ms. Gatlin wilfully failed to

support Felicia for that same four month period. Ms. Gatlin testified that she had no

money, and there is no proof to the contrary. An inference might be drawn that she

had enough resources to live and support her drug habit, but she testified that she

was living with someone else. An equally logical inference could be drawn that that


                                          -4-
person was providing her support. In any event, it is understandable that she could

not support her child during the month of November while she was in jail.



             The judgment of the court below is reversed and the cause is remanded

to the Juvenile Court of Davidson County for further proceedings. Tax the costs on

appeal to the State.




                                        _____________________________
                                        BEN H. CANTRELL, JUDGE



CONCUR:




_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION




_______________________________
SAMUEL L. LEWIS, JUDGE




                                       -5-
                  IN THE COURT OF APPEALS OF TENNESSEE
                       MIDDLE SECTION AT NASHVILLE




BARBARA GATLIN,                            )
                                           )
       Petitioner/Appellant,               )
                                           )
VS.                                        )      Appeal No.
                                           )      01-A-01-9607-JV-00311
STATE OF TENNESSEE                         )
DEPARTMENT OF HUMAN                        )
SERVICES,                                  )      Davidson Juvenile
                                           )      No. 09-47-86
       Respondent/Appellee.                )
                                           )      Reversed
IN THE MATTER OF:                          )      and
                                           )      Remanded
FELICIA GATLIN,                            )
a child under the age of 18.               )

                                 JUDGMENT

              This cause came on to be heard upon the record on appeal from the

Juvenile Court of Davidson County, briefs and argument of counsel; upon

consideration whereof, this Court is of the opinion that the judgment of the trial court

should be reversed.

              In accordance with the opinion of the Court filed herein, it is, therefore,

ordered and decreed by this Court that the judgment is reversed. The cause is

remanded to the Juvenile Court of Davidson County for any further proceedings

necessary and for the collection of costs accrued below.

              Costs of this appeal are taxed against the State of Tennessee.

              ENTER _______________________.



                                           _________________________________
                                           HENRY F. TODD, PRESIDING JUDGE
                                           MIDDLE SECTION


                                           _________________________________
                                           SAMUEL L. LEWIS, JUDGE


                                           _________________________________
                                           BEN H. CANTRELL, JUDGE
