                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                   January 8, 2002 Session

              MICHAEL BARAL v. GEORGE JOSHUA BOMBARD

                      Appeal from the Juvenile Court for Davidson County
                        No. 97-09716    Betty Adams-Green, Judge



                     No. M2000-02429-COA-R3-JV - Filed June 5, 2002



This appeal arises from a dispute over the custody of Austin Bombard, a minor child, and the
termination of George Bombard’s parental rights on a finding of abandonment. The trial court
dismissed the father’s Petition for Custody and granted custody of the child to Jocelyn and
Michael Baral, the child’s maternal aunt and uncle. Mr. Bombard challenges the termination of
his parental rights and the trial court’s custody order. We affirm the trial court’s termination of
the father’s parental rights and custody order. Costs of this appeal shall be assessed to the
appellant.

        Tenn.R.App.3 Appeal as of Right; Judgment of the Juvenile Court Affirmed

DON R. ASH , S.J., delivered the opinion of the court, in which William B. Cain, J. and Ben H.
Cantrell, J., joined.

Andy Allman and Stephanie Hatchett, Nashville, Tennessee, for the appellant, George Bombard.

Phillip Robinson and Christine Carolton, Nashville, Tennessee, for the appellees, Michael and
Jocelyn Baral.
                                           OPINION

                                            I. Facts

        Appellant, George Bombard (“Bombard”), and Tina Marion (“Marion”), are the parents
of Austin Bombard, whose date of birth is April 12, 1996. In March of 1996, Valerie Cook,
investigator for child protective services of the Tennessee Department of Children’s Services
(herein after “DCS”), responded to a report that Marion’s oldest child, Lawrence Martinez, had a
bruise in the shape of a hand on the side of his face. Cook interviewed the child at school and
was told Mr. Bombard had struck the child in the face for poor homework. Cook went to the
Bombard/Marion residence and confronted the couple regarding the abuse. Bombard admitted
he slapped the child. The couple agreed to a safety plan whereby Marion would be responsible
for the future corporal punishment of her children and Bombard would not inflict such
discipline.

        Cook received a second referral regarding Lawrence on August 27, 1996. She examined
him at school and observed the child had a swollen nose, bruises extending across the bridge of
the nose and under one eye, and bloody scabs on the end of his nose and chin. Allegedly,
Bombard punished him by forcing him to the floor and slamming his face into the floor on three
occasions. Cook traveled to the Bombard/Marion residence and confronted the couple again.
Bombard initially denied any involvement, but later admitted he was trying to discipline the
child when the injuries occurred. Cook insisted Bombard immediately vacate the residence, but
he refused. Bombard was ultimately removed from the home by DCS approximately one week
later as a result of this abusive behavior toward Marion’s child. Bombard was subsequently
charged with misdemeanor child abuse as a result of Lawrence’s injuries. Bombard pled guilty
to the charge and received a sentence of eleven months and twenty-nine days suspended, eleven
months and twenty-nine days probation, counseling, and to follow the Orders of the Juvenile
Court and DCS. The Luton Mental Health Center recommended extensive counseling for
Bombard but he only attended four sessions. Bombard was eventually released from probation
in spite of his failure to complete the recommended counseling program at the Luton Mental
Health Center.

        Marion and the children were evicted from the residence at the end of September 1996.
The State later filed a Petition alleging Austin Bombard and the other children living in Marion’s
household were dependent and neglected. An emergency protective order temporarily placing
the children in the custody of DCS was entered on August 11, 1997. An Order of Adjudication
and Disposition was entered on December 19, 1997 whereby Austin Bombard and Marion’s
other children were found to be dependent and neglected, and legal custody was to remain with
DCS. Austin was placed in foster care and Marion’s other children were placed with their
biological father. DCS was unable to locate Mr. Bombard at this time. Marion was unable to
provide DCS with an address for Bombard. DCS then unsuccessfully attempted to reach
Bombard via certified correspondence at the address on record with the Department of Safety.
Consequently, Austin was later placed in the temporary care of his maternal aunt and uncle,
Appellees Jocelyn and Michael Baral, in May 1998. The Barals requested to adopt the minor
child and DCS initiated the process to terminate the parental rights of Marion and Bombard.
        Bombard had no contact with Marion or Austin from the end of September 1996 until he
was located by DCS through a due diligence search in June 1999. Bombard filed a Petition for
Custody on July 13, 1999. A Permanency Plan was developed by DCS, the Guardian Ad Litem,
and Bombard whereby the father was required to participate in individual counseling to address
his temper and abusive conduct and to acknowledge his responsibility for the prior abuse.
Bombard was advised failure to comply with the Permanency Plan could result in the
termination of his parental rights. Bombard was ordered to begin paying child support at a
hearing on November 23, 1999. Bombard then traveled to California later that month to visit his
son for the first time since September 1996. Although Bombard’s visit with Austin went well,
the Barals decided to consult Leslie S. Packard, Ph.D., a clinical psychologist, in anticipation of
potential disruption in Austin’s environment. Dr. Packard performed an attachment/bonding
study with Austin and determined the child had bonded with the Barals, but also concluded
Austin suffered from Reactive Attachment Disorder as a result of his history of multiple
placements and warned the child may suffer serious emotional harm if removed from the Barals
and placed with Bombard. A second psychologist, Dr. Shelia Elizabeth Byrns, confirmed this
diagnosis. Dr. Byrns also concluded removal of Austin from the Barals and placement with
Bombard would be emotionally devastating for the child and result in serious and substantial
harm. The Barals responded by filing a Petition to terminate the father’s parental rights, or in the
alternative for custody of the minor child, on December 14, 1999, alleging Bombard had
abandoned Austin and represented a danger to the child. The trial court suspended Bombard’s
visitation with Austin pending the trial.

        This cause was adjudicated in Davidson County Juvenile Court on August 28 and 29,
2000. The trial court determined Mr. Bombard’s petition for custody of his son and the petition
by the foster parents to terminate the father’s parental rights should be adjudicated in separate
orders with findings of fact and conclusions of law. The trial court determined Bombard was not
a credible witness, as the proof showed he made no serious efforts to locate Austin, and is
unaware of the whereabouts of four other minor children from two separate women, but claims
he has “diligently” searched for them also.

       The trial court’s Custody Order found removal of the minor child from the possession of
the Barals and placement of the child with the biological father presented a substantial threat of
serious emotional and physical harm to the child and it was in the child’s best interests that
custody be placed in the Barals. Thus, the trial court dismissed Bombard’s petition for custody
and awarded custody to the Barals.

       Next, the trial court’s Order of Termination found by clear and convincing evidence
Bombard abandoned the minor child, and that termination of the biological father’s parental
rights was in the best interests of the child. The trial court noted during its assessment of
abandonment that Bombard paid no child support whatsoever for the support and maintenance of
his minor child from September, 1996, until after the filing of the Petition to Terminate Parental
Rights in December 1999. Nor did Bombard visit or contact Austin in any way during this
period of over three years and three months. Even with full knowledge of the seriousness of the
pending action, Bombard failed to pay the child support as ordered. Bombard also gave false
and misleading testimony regarding the status of his child support payments, stating under oath
these payments were current, when, in reality, certified documents from the Tennessee Child
Support Receipting Unit evidenced an arreage of $2,695.30 as of August 24, 2000. The trial
court further determined the inability of DCS to locate Bombard was caused by his own actions,
where he left no forwarding address, used several aliases, had no phone listing, and allowed his
driver’s license to expire in Tennessee.

        The trial court was concerned due to Bombard’s failure to satisfactorily address the issue
of his prior child abuse and follow the recommendations of Luton Mental Health Center
regarding additional parenting classes or seek counseling under the Permanency Plan to address
his temper and abusive conduct. The trial noted several important considerations raised by
expert testimony: Bombard remained a threat to children in his possession; Austin was mentally
and emotionally fragile as the result of past abuse, neglect and multiple placements; the Barals
had provided the child with a loving and nurturing home; Austin had bonded with the Barals and
considered them to be his parents; it would be difficult for Austin to bond again if removed from
the possession of the Barals; and such removal would have serious short-term and long-term
emotional consequences for the child.

       Appellant filed a timely appeal in this matter.


                                            II. Issues

        The following issues are before the court: (A) Whether the trial court erred in finding
Bombard abandoned his child; (B) Whether there was sufficient evidence to support a finding
that Bombard posed a risk of substantial harm to his child; (C) Whether termination of
Bombard’s parental rights was in the best interests of the child; (D) Whether the trial court erred
by failing to dismiss the Barals’ Petition for failure to state a claim upon which relief can be
granted; (E) Whether DCS made reasonable efforts to assist the father in finding a suitable home
for his child; and (F) Whether third parties can rely upon failure to comply with a plan of care as
grounds to terminate a parent’s rights to his child?


                                           III. Analysis

A.     Whether the trial court erred in finding Bombard abandoned his child?

        This case presents the court with another opportunity to examine the delicate interplay
involving the rights of natural parents, prospective adoptive parents, and the welfare of a young
child. The Tennessee Constitution guarantees the right to privacy. Davis v. Davis, 842 S.W.2d
588 (Tenn. 1992). In light of this right to privacy, the Tennessee Supreme Court declared the
state lacks a sufficiently compelling justification to infringe upon the fundamental right of
parents to raise their children as they see fit when no substantial harm threatens a child’s welfare.
Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993). Abandonment of the child has been recognized
as a situation where a child’s welfare is sufficiently threatened to justify state intervention and
the termination of parental rights.

      The law regarding termination of parental rights is set out in T.C.A. § 36-1-101, et. seq.
The Juvenile Court has concurrent jurisdiction with Chancery and Circuit Court to terminate
parental rights in a separate proceeding or as part of an adoption proceeding. T.C.A. § 36-1-113.
The termination must be based upon a finding by the court by clear and convincing evidence that
the grounds for termination have been established and termination is in the best interests of the
child. T.C.A. § 36-1-113(c)(1),(2). Abandonment of the child by the parent is one basis for
termination of parental rights. T.C.A. § 36-1-102. T.C.A. § 36-1-102(1)(A) defines
“abandonment” for purposes of terminating the parental rights of a parent or guardian in order to
make that child available for adoption. Abandonment is defined as the parent or guardian’s
willful failure to visit or willful failure to support or make reasonable payments toward the
support of the child for a period of four consecutive months immediately preceding the filing of
a pleading to terminate parental rights. “Willfully failed to visit,” means the willful failure to
visit or engage in more than token visitation. T.C.A. § 36-1-102(1)(E). “Token visitation”
means 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. T.C.A. § 36-1-102(1)(C).
“Willfully failed to support or make reasonable payments toward a child’s support,” means no
monetary support was paid or the amount of support paid is token support. T.C.A. § 36-1-
102(1)(D). “Token support” means the support, under the circumstances of the individual case,
is insignificant given the parent’s means. T.C.A. § 36-1-102(1)(B).

        Bombard maintains the Barals have failed to show sufficient proof establishing willful
and deliberate abandonment of his minor child. The Barals insist the proof established by clear
and convincing evidence Bombard abandoned Austin and termination of the father’s parental
rights was in the best interests of the child.

        This Court will first consider the sufficiency of the evidence establishing abandonment of
the minor child by Bombard. Six “non-exclusive” factors were suggested for determining
whether a parent has abandoned their child in Koivu v. Irwin, 721 S.W.2d 803 (Tenn. Ct. App.
1986). They are: (1) the amount of support given to the child; (2) the degree of contacts and
visits with the child; (3) the frequency of gifts on special days; (4) whether custody of the child
was voluntarily given over to another; (5) the length of time the child has been away from his
natural parents; and (6) the home environment and conduct of the natural parents prior to the
removal of the child from their custody. The Court stated, “To determine an abandonment, the
Court is not to look at the protestations of affections and intentions expressed by the natural
parent, but look at the past course of conduct. This is a judicial question to be determined
consistent with the welfare of the child…The ultimate question in an abandonment situation is
whether there is clear and convincing evidence of an overall lack of any parental responsibility.
Id at 807. Moreover, even where a parent has reestablished contact with a previously abandoned
child, the Court may decline to find the abandonment has been terminated. Id at 808. The Court
has also noted the abandonment inquiry is heavily fact oriented and the outcome depends upon
the facts of each case. Rigsby v. Rigsby, 1994 Tenn. App. LEXIS 46. The Court acknowledged
the above factors and remarked no single factor is controlling since their purpose is simply to
guide the Court’s consideration of the evidence. Id.

       These factors shall guide the Court’s consideration of Bombard’s contact with Austin.
The present facts reveal Mr. Bombard was forced out of the residence by DCS approximately
five months after Austin’s birth after pleading guilty to child abuse inflicted upon another child
in the household. Bombard had no contact with Austin from the end of September 1996 until
after he was located by DCS through a due diligence search in June 1999. In assessing the issue
of abandonment, the trial court noted Bombard paid no child support whatsoever for the support
and maintenance of his minor child from September, 1996, until after December, 1999, a period
of over three years and three months.

        Bombard maintains his failure to visit or support Austin was not willful as he was unable
to locate the child or his mother despite a “diligent” search. The Tennessee Supreme Court
considered the element of intent for purposes of abandonment and termination of parental rights
analysis in Tennessee Baptist Children’s Homes, Inc. v. Swanson (In re Swanson), 2 S.W.3d 180
(Tenn. 1999). The pertinent facts of In re Swanson reveal Harry and Brigette Swanson divorced
in 1991. Thereafter, Brigette Swanson moved to various places around Tennessee and
Mississippi and refused to allow Harry visitation with their daughter Brittany. Mr. Swanson
attempted to maintain contact with his daughter and placed over one-hundred phone calls to his
former in-laws over a two-year period in an effort to discover the location of Brittany and her
mother. Brittany was placed in the legal custody of the Department of Human Services (“DHS”)
in May 1993 after the juvenile court made a dependency and neglect determination. Brigette
Swanson misrepresented to DHS that Brittany’s father was deceased, and the Department
modified its goal of reunification with the child’s parents to adoption. DHS later received
annulment records indicating Harry Swanson was not deceased, yet the Department still made no
effort to contact him during the initial proceeding to determine whether Brittany was dependent
and neglected. Mr. Swanson learned of the termination proceeding when someone saw the
notice published in the newspaper and he appeared in court to contest the allegations of
abandonment. Mr. Swanson argued his failure to support his daughter was not willful per T.C.A.
§ 36-1-102(1)(D) since he was unable to locate his child. Mr. Swanson also challenged the
constitutionality of T.C.A. § 36-1-102(1)(D) because the statute created an irrebuttable
presumption that a parent’s failure to support their children for four months, whether willful or
unintentional, results in abandonment.

        The Court reviewed the history of the abandonment provisions since its inception in 1951
and stated the definition of “abandonment,” as it pertained to failure to support, always
contained an element of intent or purposefulness. Id. at 187. Yet the Tennessee Legislature
excluded the willfulness aspect of failure to support in the definition of abandonment when it
amended the adoption code in 1995. The Court refused to conclude the legislature inadvertently
or mistakenly omitted the willfulness aspect of failure to support in light of the legislative
pronouncement that the only definition of abandonment, which should be applied, is that which
is included in the statute, per T.C.A. § 36-1-102(1)(G). Id. Consequently, the Court declined to
supply the word “willful” and read an element of intent into the definition of “willful failure to
support” and proceeded to construe the constitutionality of the statute as drafted. The Court
determined the definition is unconstitutional since it creates an irrebuttable presumption that
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 Court further declared the definition of “willful failure to support” in effect in 1994,
which included the element of intent, shall be applied until otherwise amended by the Tennessee
Legislature. Finally, the Court concluded Mr. Swanson did not abandon his daughter under the
unusual facts of this case.
        Yet, in contrast to the facts of In re Swanson, the only proof presented at trial regarding
the diligence of Bombard’s search reveals he made six phone calls to Marion’s parents totaling
seven (7) minutes, he mailed two envelopes containing blank pieces of paper to Marion’s old
address in an attempt to discover a forwarding address, he accidentally encountered Marion’s
sister where he inquired about her whereabouts only, and then visited a women’s shelter where
the mother may have recently stayed. These meager efforts to locate the child were token at best.
Nor did Marion misrepresent the status or whereabouts of Mr. Bombard to DCS. DCS
unsuccessfully attempted to locate Bombard through the mail and searched the Department of
Safety’s driver’s license records during the initial proceeding to determine whether Austin was
dependent and neglected. The trial court ultimately concluded DCS was unable to locate
Bombard as a result of his use of multiple aliases, failure to provide a forwarding address,
absence of a phone listing, and allowing his driver’s license to expire in Tennessee. Bombard
took no serious steps to be reunited with Austin until after he was contacted by a social worker
in the process of terminating his parental rights. The trial court believed Bombard’s behavior
regarding his search for Austin was consistent with his relationship with his four other minor
children from two separate women. Bombard does not know where any of these children live
either, but claims to have “diligently” searched for them as well, but been unable to locate them.


        It is also undisputed that Bombard failed to pay any child support from the time he was
notified of Austin’s whereabouts in June 1999 by DCS until after the filing of the Petition to
Terminate Parental Rights in December 1999, a period of approximately six months. Even if the
Court were to overlook Bombard’s failure to support Austin while the child’s whereabouts were
unknown, the record contains no justification for his failure to support the child after being
contacted by DCS in June 1999. Bombard allowed approximately six months to elapse before
making a single child support payment. Even with full knowledge of the seriousness of the
pending action, Bombard failed to pay the child support as ordered by the court. Bombard gave
false and misleading testimony regarding the status of his child support payments, stating under
oath these payments were current, when, in reality, certified documents from the Tennessee
Child Support Receipting Unit evidenced an arreage of $2,695.30 as of August 24, 2000.
Although Bombard was temporarily unemployed during a portion of this time period, the proof
presented at trial revealed he paid other debts but failed to pay his child support. These facts
indicate Bombard’s failure to support his child was willful. Likewise, the record indicates
Bombard visited Austin for the first time since September 1996 shortly before the filing of the
Petition to Terminate Parental Rights on December 14, 1999. This isolated visit may certainly
be considered “token” or perfunctory visitation and merely established minimal or insubstantial
contacts with the child. This Court concludes Bombard’s failure to appropriately visit or support
Austin prior to the filing of the Petition to Terminate Parental Rights is consistent with the trial
court’s determination of abandonment.

        Next, the Court should reflect upon the frequency of gifts on special days. Bombard
asserts he sent a Valentine gift in 1999, although it is unclear if the gift was ever received, or by
whom, as he was not located by DCS until June 1999. Bombard also sent Austin gifts, cards and
emails after he applied for custody until the court ordered no further contact. Thus, Bombard’s
gifts to Austin on special days since September 1996 were insignificant. This finding also
supports the trial court’s determination of abandonment.

        The Court should also take into account whether custody of Austin was voluntarily given
over to another. Bombard was removed from the home by DCS due to child abuse and lost
contact with his child after the mother was evicted from their residence. DCS ultimately
concluded Marion’s children were dependent and neglected and temporarily placed Austin into
foster when unable to locate Bombard. Thus, although Bombard did not affirmatively give
custody of Austin to another, these facts suggest Bombard’s contact with Austin was disrupted
as a consequence of his violent behavior. These facts may also be viewed as consistent with the
trial court’s ruling regarding abandonment.

        Next, the Court should assess the length of time the child has been away from his natural
parents. Bombard had no contact with Austin from the time he was removed from the residence
in September 1996 until after he was located by DCS in June 1999. The State subsequently filed
a Petition alleging Austin and the other children living in Marion’s household were dependent
and neglected. An emergency protective order temporarily placing the children in the custody of
DCS was entered on August 11, 1997. An Order of Adjudication and Disposition was entered
on December 19, 1997 whereby Austin and Marion’s other children were found to be dependent
and neglected, and legal custody was to remain with DCS. Austin was placed in foster care and
Marion’s other children were placed with their biological father. DCS was unable to locate
Bombard at this time. Austin was later placed in the temporary care of his maternal aunt and
uncle, Appellees Jocelyn and Michael Baral, in May 1998. Thus, Austin had been separated
from his father for nearly three years, and his mother for nearly two years, when Bombard was
located by DCS in June 1999. This lengthy period of separation from the child also supports the
trial court’s determination of abandonment.

        Finally, the Court should evaluate the home environment and conduct of the natural
parents prior to the removal of the child from their custody. Again, Bombard was removed from
the residence in September 1996 by DCS after pleading guilty to child abuse. DCS was also
required to remove the children from Marion’s care after concluding the children were
dependent and neglected. These facts strongly suggest the home environment and conduct of
Bombard and Marion were unacceptable prior to the removal of Austin from their custody.
These facts are also consistent with a finding of abandonment. This Court concludes the totality
of the circumstances support the trial court’s determination Bombard abandoned the minor child
by clear and convincing evidence.
B.     Whether there was sufficient evidence to support a finding that Bombard posed a
       risk of substantial harm to his child?

        Even though the totality of the circumstances provide Bombard abandoned the minor
child, a parent’s rights may not be terminated unless it is shown the parent is unfit or that
substantial harm to the child will result if parental rights are not terminated. See In re Swanson
at 188. Consequently, Bombard also challenges the sufficiency of the evidence supporting a
finding he posed a risk of substantial harm to the child. In defense of this position, Bombard
asserts he has never been involved with any child abuse of Austin, he has never been responsible
for the severe child abuse of any child, and his current wife does not consider him to be a threat
to her children. However, it should be noted the Bond court found the threat of substantial harm
to the child’s welfare was sufficient to justify the state’s involvement.

       “In light of this right to privacy, we believe that when no substantial harm threatens a
       child’s welfare, the state lacks a sufficiently compelling justification for the infringement
       on the fundamental right of parents to raise their children as they see fit (emphasis
       added).” Bond, at 548, quoting Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993).

        Thus, the trial court was appropriately concerned by Bombard’s history of child abuse
and failure to satisfactorily address his past instances of child abuse or follow the
recommendations of Luton Mental Health Center regarding additional parenting classes and
counseling to address his temper and abusive conduct. Expert testimony presented to the trial
court suggested Austin is a mentally and emotionally fragile as a result of past abuse, neglect and
multiple placements. Austin’s age would make it difficult for the child to bond again if removed
from the possession of the Barals, and such removal would have serious short-term and long-
term consequences for the child. This Court concludes these facts are more than sufficient to
support a finding that placement of Austin with Bombard posed a risk of substantial harm to the
child.

C.     Whether termination of Bombard’s parental rights was in the best interests of the
       child?

        As the Court concluded the grounds for termination of Bombard’s parental rights were
established by clear and convincing evidence, and further, that Austin’s placement with
Bombard posed a risk of substantial harm to the child, we will now consider if termination of
Bombard’s parental rights was in the best interests of the child. T.C.A. § 36-1-113(c)(2). The
trial court questioned Bombard’s credibility due to lack of serious effort to locate Austin and his
failure to support or visit four additional children whose whereabouts are presently unknown.
The trial court also emphasized Bombard failed to comply with the requirements of the
Permanency Plan even when he was fully aware his parental rights might be terminated as a
result. Bombard failed to satisfactorily address his past instances of child abuse or follow the
recommendations of Luton Mental Health Center regarding additional parenting classes and
counseling to address his temper and abusive conduct. Expert testimony presented to the trial
court suggested Austin is a mentally and emotionally fragile as a result of past abuse, neglect and
multiple placements. Austin’s age would make it difficult for the child to bond again if removed
from the possession of the Barals, and such removal would have serious short-term and long-
term consequences for the child. This Court agrees with the trial court that termination of
Bombard’s parental rights is in the best interests of the child.

D.     Whether the trial court erred by failing to dismiss the Barals’ Petition for failure to
       state a claim upon which relief can be granted?

        The trial court denied Bombard’s motion to dismiss or for summary judgment and
overruled the father’s objection to allowing the Barals to amend their Petition to Terminate
Parental Rights. Bombard maintains the Barals failed to allege sufficient grounds upon which
relief could be granted in their Petition to Terminate Parental Rights. A review of the Tennessee
Rules of Civil Procedure, the Petition, the record and case law evidences this position is without
merit. Rule 8.01 of the Tennessee Rules of Civil Procedure provides a pleading is to set forth a
claim for relief and shall contain a short and plain statement of the claim showing the pleader is
entitled to relief, and a demand for judgment, or relief in the alternative demanded. Bombard
argues Rule 8.05 of the Tennessee Rules of Civil Procedure requires a pleading to state all of the
facts necessary to constitute a breach of a statutory violation. However, there are no technical
forms for pleadings, and Rule 8.05 provides the averment of a pleading shall be simple, concise
and direct. Where a pleading states a claim based on a statute, a statement of all the facts
necessary to constitute such a breach is to be stated so the other party can be duly apprised of the
statutory violation. T.R.C.P. 8.05.

        The sole purpose of a motion to dismiss is to test the legal sufficiency of the Complaint.
Such motions are not favored and are rarely granted in light of liberal pleading standards.
Further, complaints should not be dismissed no matter how poorly drafted, so long as a cause of
action is stated. Dobbs v. Guenther, 846 S.W.2d 270 (Tenn. Ct. App. 1992). A motion to
dismiss for failure to state a claim for which relief may be granted is determined from
examination of the complaint alone, and should not be dismissed unless it appears the plaintiff
can prove no set of facts in support of his claim that would entitle him to relief. Fletcher v.
Board of Professional Responsibility, 915 S.W.2d 448 (Tenn. Ct. App. 1995); Sullivant v.
Americana Homes, Inc., 605 S.W.2d 246 (Tenn. Ct. App. 1980). When a complaint is
challenged, the Court takes the material factual allegations as true and construes the complaint
liberally in favor of the plaintiff. Axline v. Kutner, 863 S.W.2d 421 (Tenn. Ct. App. 1993). In
ruling on motions for judgment on the pleadings, all well pled allegations of the opposing
parties’ pleadings are to be taken as true and all allegations of the moving party, which are
denied, are to be taken as false. Id. A judgment on the pleadings should not be granted unless
the moving party is clearly entitled to the judgment. Thus, the issue before the Court is whether,
under the facts alleged, the plaintiffs’ complaint states a cause of action.

        The Barals filed their Petition to Terminate Parental Rights on December 14, 1999. The
Petition set forth the names and addresses of the petitioners, the name and address of the
respondent, and the fact that legal custody of the minor child was with DCS. Paragraph 7 of the
Petition states Bombard had not paid any child support from December 14, 1997 until the most
recent court date of November 23, 1999, nor had he visited with the child or made any
reasonable efforts to locate the child. That paragraph concludes with the allegation that
Bombard had in fact abandoned the child. Paragraph 13 of the Petition specifically states
termination of Bombard’s parental rights is in the best interests of the minor child. The Barals
stated in paragraph 10 of the Petition Bombard is not a fit custodian for the minor child and
represented a substantial danger to Austin due to his lack of responsibility, failure to provide,
visit or attend to the needs of his son, and criminal history of child abuse. Paragraph 11 states
awarding custody of the minor child to Bombard poses a threat of serious risk of substantial
harm to the physical and emotional welfare of the child. Bombard clearly had notice as to the
allegations against him and the bases of the Petition for Termination of Parental Rights. The
Barals’ pleadings comply with Rule 8 of the Tennessee Rules of Civil Procedure. Consequently,
this Court concludes the Barals’ Petition to Terminate Parental Rights adequately stated a cause
upon which relief could be granted. The trial court did not err by failing to dismiss the Barals’
Petition for failure to state a claim upon which relief can be granted.




E.     Whether DCS made reasonable efforts to assist the father in finding a suitable home
       for his child?

        Bombard’s next assignment of error alleges DCS failed to make reasonable efforts to
assist him in gaining custody of his son. Fathers have a right to know what happens to their
children while in foster care, and to provide a home for them if possible. DCS policy supports
this principle, yet the facts in this case indicate Austin entered the DCS system in August 1996
and DCS employees did not locate Bombard until June 1999. Yet, DCS policy or actions do not
control the analysis of termination of parental rights. T.C.A. § 36-1-101, et. seq. governs the
analysis of this issue and clearly provides parental rights may be terminated upon a finding of
abandonment. DCS is not responsible for Bombard’s failure to appropriately support or visit his
son from September 1996 until after the filing of the Barals’ Petition. T.C.A. § 36-1-101, et.
seq. does not contain an exception to termination of parental rights where DCS failed to make
reasonable efforts to assist a parent in gaining custody of their child. Nor is Bombard able to cite
any Tennessee authority supporting such a position. T.C.A. § 36-1-101, et. seq. squarely places
the burden on parents to provide their minor children with regular support and visitation or face
termination of their parental rights. Bombard is solely responsible for his failure to support or
establish a relationship with his child.

        Furthermore, a review of the record indicates Bombard’s position is without merit. The
trial court determined the inability of DCS to locate Bombard during the initial proceeding to
determine if Austin was dependent and neglected was caused by his own actions, where he left
no forwarding address, used several aliases, had no phone listing, and allowed his driver’s
license to expire in Tennessee. Bombard took no serious steps to locate his minor child and
cannot place the blame for his irresponsibility on DCS. This Court concludes DCS made
reasonable efforts to locate Bombard and assist him in finding a suitable home for his child.

Whether third parties can rely upon failure to comply with a plan of care as grounds to
terminate a parent’s rights to his child?
         Bombard maintains the Barals, as foster parents, may not “bootstrap” their position to
that of the State and rely on the Plan of Care as grounds for termination of parental rights.
Bombard argues the rights of foster parents, as set forth in T.C.A. § 37-2-415 and 416, are
extremely limited and do not contemplate enforcement of a Plan of Care. Bombard suggests
there is nothing in the statute authorizing a private party to use a parent’s compliance with a plan
of care against the parent. Bombard further argues references to “agency” in T.C.A. § 36-
113(g)(2), T.C.A. § 37-2-401 and 402 refer to child welfare entities rather than foster parents.
However, a review of the relevant statutory authority reveals Bombard’s arguments are
misplaced. T.C.A. § 36-1-113(g)(2) provides initiation of termination of parental or
guardianship rights may be based upon substantial noncompliance by the parent or guardian with
the statement of responsibilities in a permanency plan or plan of care pursuant to the provisions
of title 37, chapter 2, part 4. This portion of the statute does not make any reference whatsoever
to any “agency” other than through a reference to title 37, chapter 2, part 4. Nor does T.C.A. §
37-4-401 contain a reference to any “agency.” The final statute cited by Mr. Bombard, T.C.A. §
37-4-402, is the definitional statute and includes a definition of the term “agency.” This Court
fails to see how the Barals have attempted to “act under color of state law” or “bootstrap”
themselves into the position of the State and enforce the Plan of Care. The Barals did not
petition the Court to enforce the Plan of Care. The Barals have appropriately referred to
Bombard’s actions in disregard of the plan of care as support for their Petition to Terminate
Parental Rights, or in the alternative for custody. Furthermore, the Court considers Bombard’s
analysis particularly lacking since he overlooks the provision in T.C.A. § 36-1-113(g)(1)
declaring initiation of termination of parental rights may be based upon abandonment, the true
basis for the Barals’ Petition. Enforcement of a Plan of Care is a separate issue from petitioning
the Court for termination of parental rights, although analysis of these issues may share reliance
on certain facts, such as failure to visit or support the minor child. Thus, this Court concludes
Bombard’s final assignment of error is without merit.


                                         IV. Conclusion

        This court concludes the trial court’s termination of Bombard’s parental rights on a
finding of abandonment and custody order were proper. For the foregoing reasons, the judgment
of the trial court is affirmed. Costs of this appeal shall be assessed to the appellant.



                                                     ___________________________________
                                                     DON R. ASH, S.J.
