                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                   January 6, 2003 Session

       STATE OF TENNESSEE DEPT. OF CHILDREN'S SERVICES v.
                        D.D.B. a/k/a D.B.M.

                  Appeal from the Juvenile Court for Montgomery County
                           No. 50200054    John J. Hestle, Judge



                    No. M2002-00523-COA-R3-JV - Filed March 28, 2003



This appeal arises from the termination of parental rights by the juvenile court. We affirm the
juvenile court.

           Tenn. R. App. P.3; Appeal as of Right, Judgment of the Juvenile Court
                                Affirmed and Remanded

STELLA L. HARGROVE, Sp. J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J.
M.S. and PATRICIA J. COTTRELL , J ., joined.

Worth Lovett, Clarksville, Tennessee, for Appellant, D.D.B., a/k/a D.B.M.

Paul G. Summers, Attorney General & Reporter, Douglas Earl Dimond, Assistant Attorney General,
Nashville, Tennessee, for Appellee, State of Tennessee Dept. of Children's Services.

                                           OPINION

                                  I. FACTUAL BACKGROUND

        In November of 1998, Appellant was arrested for parole violation and extradited to the State
of Illinois. She entrusted the care of her child, then almost two years of age, to an acquaintance.
Shortly thereafter, upon request of the acquaintance, the Department of Children’s Services (DCS)
intervened and acquired custody of the child.

       In February of 1999, Appellant was released from prison, contacted DCS and set up visitation
with the child. She visited her three times in 1999 and five times in 2000, with the last visit being
on October 29, 2000.
       On June 22, 2001, DCS filed to terminate the parental rights of Appellant and others. A
hearing was held in juvenile court on December 6, 2001, and the order of termination was entered
January 23, 2002.
                                  II. GROUNDS ON APPEAL

                              A. GROUNDS FOR TERMINATION

         Parents have a fundamental right to the case, custody and control of their children. Stanley
v. Illinois, 405 U.S. 645, 92 S. Ct. 1208 (1972). However, these rights are not absolute, and the State
may sever the relationship between parents and children if it can prove (1) an appropriate ground by
clear and convincing evidence, and (2) that termination is in the best interest of the children. In re:
Drinnon, 776 S.W.2d 96 (Tenn. Ct. App. 1998); Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388
(1982).

         Tenn. Code Ann. § 36-1-113(g) sets out the possible grounds for termination of parental
rights, including:
         __ (1) Abandonment by the parent or guardian, as defined in § 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 safe 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 safely 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
         diminishes the child's chances of early integration into a safe, stable and permanent
         home.

      For purposes of termination proceedings, Tenn. Code Ann. § 36-1-102 (1)(A) defines
“abandonment” as follows:

       (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


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                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.

        Tenn. Code Ann. § 36-1-102(1)(E) defines “willfully failed to visit” as the willful failure, for
a period of four (4) consecutive months, to visit or engage in more than token visitation. Subsection
C defines “token visitation” as visitation, under the circumstances of the individual case, that
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.

         B. WHETHER TERMINATION IS IN THE BEST INTEREST OF THE CHILD.

        The juvenile court found by clear and convincing evidence that Appellant’s parental rights
should be terminated on the above grounds and found that termination of parental rights was in the
best interest of the child. The court found that Appellant had failed to establish consistent visitation
with her child, failed to rehabilitate herself and failed to establish a safe home for the child. The
court also found that Appellant had only token visitation with the child and made no contributions
toward her support since November 9, 1998, the date that the child was placed in state custody.
Further, the court found that the conditions which led to the removal of the child, as well as other
conditions that would cause the child further abuse or neglect, would probably not be remedied in
the near future. The court also found that the child is of such an age that continuation of the legal
parent and child relationship would greatly diminish the child’s early integration into a stable and
permanent home.

             EFFORTS DEMONSTRATED BY APPELLANT TO SEE THE CHILD:

         Upon release from jail in February, 1999, Appellant did not visit with her child until May,
1999. She testified that living with a husband who was a trucker hindered her from seeing her child.
However, the evidence showed that she did not live with her husband after her release from jail. She
testified as follows:

         Q. Until now you haven’t visited with your child very much. Can you tell the court why that
is so?
         A. Because my husband was a truck driver and we were traveling too because he had
different places that he had to go; and they would change his company over different places; and
that’s why did not - have a stable home; but my daughter was very well taken care of.
------------
         Q. And you got out in February of ’99?
         A. Yes, sir.
         Q. And when did you come down here to see about your daughter?
         A. I don’t remember.
         Q. Well, was it in February of ’99?
         A. It was some where in ’99, yes.


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         Q. Did you not testify that the reasons that you did, was because your husband was a trucker?
         A. Yes, sir.
         Q. And you were on the road with him?
         A. I was on the road in November with him and we were stuck in (indiscernible) Motel –
after that I don’t know.
         Q. That was in ’99?
         A. Yeah, when I got – we were here in ’99.
         Q. After you got out of prison, were you in jail or prison?
         A. I was in jail.
         Q. After you got out of jail?
         A. I wasn’t with him.
----------
         Q. Yet you say you were concerned about your child?
         A. I was concerned about my child, but like I told DCS, I was also confused, didn’t know
what I was doing, I was moving from here, to there, I was trying to do my best, I went back to my
dad’s house to stay there. I went to my parenting classes. I did everything there. My dad tried to
call and talk to my case worker. They say my daughter went into DCS custody, my father called
down here to come and get her; and they told him that he has no rights to come down here and get
her. That’s her grandpa.
-----------

       On cross-examination, Appellant testified:

       Q. Did you and Mr. Mallory separate?
       A. Uh huh (meaning yes by sound).
       Q. When?
       A. Well, the last time I seen him was November 3rd, before I left.
       Q. November 3rd, 1998?
       A. No. When my daughter went into DCS custody, is that when she went in there, ’98?
       Q. Yes. So the last time you saw Mr. Mallory was in 1998?
       A. Yes, ma’am.
       Q. And Mr. Mallory is a trucker, right?
       A. Yes, ma’am.
       Q. So you say that you couldn’t see your daughter because you’re on the road all the time
          (indiscernible) ?
       A. Well, that -- yeah, you’re right.

       Appellant also had difficulty remembering when she last saw her daughter.

       Upon cross-examination, she testified:

       Q. The last time you visited your daughter, wasn’t that October of 2000?
       A. I don’t know. I think I visited –


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       Q.   You don’t remember the last time you visited your daughter?
       A.   I know it was September.
       Q.   September of 2000.
       A.   No, ’99 because I asked to see her in October when I came down here for court.
       Q.   When was the last time you actually saw your daughter?
       A.   September last year on her birthday.
       Q.   September of 2000; and that you moved to Las Vegas?
       A.   Uh huh (meaning yes by sound).

        Appellant testified that upon release from jail she lived in Missouri with a female friend and
then with a male friend. She then moved into her parent’s home in North Carolina, and stayed there
for less than a month. Appellant next moved back to Missouri, met a man and moved with him to
Las Vegas in November of 2000. The record reflects that her first job upon release from jail was at
a McDonalds in Las Vegas.

       Appellant testified that she had a tenth grade education and that she was in special education
while she was in school. She stated that she now has a home and a job and that she intends to stay
in Clarksville. She testified that she is ready, willing and able to care for her child.

        There is testimony in the record about a Plan of Care entered into between Appellant and
DCS. However, it appears that no plan was ever made a part of the record. The evidence shows that
on her second visit with the child, on August 2, 1999, she read and signed a permanency plan for
DCS. The Confidential Report of the guardian ad litem refers to a plan, and the juvenile judge refers
to a current permanency plan.

         We find that Appellant abandoned her child within the meaning of Tenn. Code Ann. § 36-1-
113(g)(1) and (g)(3)(A). Her eight visits over a period of some two years and four months (February
1999, upon release from jail, to June 2001, when the termination petition was filed by DCS),
constitute token visitation as defined by § 36-1-102(1)(C) and are nothing more than perfunctory
visitation of such an infrequent nature as to merely establish minimal or insubstantial contact with
the child. We note that on the next to the last visit scheduled by her, on August 10, 2000, Appellant
failed to even show up.

        Appellant failed to visit the child at all for a period of eight consecutive months (October
2000 to June 2001), prior to DCS filing its petition. She made no attempts to return to Tennessee
until after the termination petition was filed.

       The record reflects that since DCS assumed custody of the child in November of 1998, she
has been in approximately five different foster care families. The child turned age six in September
of 2002. We agree with the juvenile judge that the three provisions of Tenn. Code Ann. § 36-1-
113(g)(3)(A) I, ii, and iii apply in this case. We also find that the ruling of the juvenile court is in
accordance with the provisions of Tenn. Code Ann. § 36-1-113(c)(I)(1)(2)(3) and (4).



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        We therefore find that the record contains clear and convincing evidence of abandonment
pursuant to Tenn. Code Ann. § 36-1-113(g)(1) and 36-1-113(g)(3)(A), and that it is in the best
interest of the child that Appellant’s parental rights be terminated.

                  III. CONSTITUTIONAL ARGUMENT UNDER SWANSON,
                               2 S.W.3d 180 (Tenn. 1999)

        We find no merit to the Appellant's argument under In re: Brittany Swanson, 2 S.W.3d 180,
(Tenn. 1999), that the willful failure to visit standard within the meaning of Tenn. Code Ann. § 36-1-
102(1)(D) creates an irrebuttable presumption which operates to unconstitutionally deprive the
mother of her right to the care and custody of her daughter where such alleged abandonment was not
intentional.

                                        IV. CONCLUSION

       The judgment of the juvenile court is affirmed, and the case is remanded to juvenile court.
Costs are assessed against Appellant.

                                               ________________________________
                                               STELLA L. HARGROVE, JUDGE




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