                IN THE COURT OF APPEALS OF TENNESSEE




IN THE MATTER OF:               )    C/A NO. 03A01-9611-JV-00369
                                )
     MICHAEL LYNN SHIPLEY       )
     BEVERLY ANN SHIPLEY
     TIFFANY ALEITHA SHIPLEY
                                )
                                )
                                                     FILED
     FRANK MICHAEL SHIPLEY,     )
          Children under the age)                    September 29, 1997
          of eighteen years,    )
                                )                    Cecil Crowson, Jr.
                                )                    Appellate C ourt Clerk
                                )
STATE OF TENNESSEE              )
DEPARTMENT OF                   )    APPEAL AS OF RIGHT FROM THE
CHILDREN’S SERVICES,            )    GREENE COUNTY JUVENILE COURT
                                )
          Petitioner-Appellee, )
                                )
                                )
                                )
v.                              )
                                )
                                )
                                )
                                )
RALPH MICHAEL SHIPLEY,          )
                                )    HONORABLE JAMES D. CARTER,
          Defendant-Appellant. )     JUDGE



For Appellant                         For Appellee

T. WOOD SMITH                         JOHN KNOX WALKUP
Greeneville, Tennessee                Attorney General & Reporter
                                      Nashville, Tennessee

                                      DOUGLAS EARL DIMOND
                                      Assistant Attorney General
                                      General Civil Division
                                      Nashville, Tennessee




                          OPINION


AFFIRMED AND REMANDED                                           Susano, J.

                                 1
            This is a termination of parental rights case under the

new Adoption Code.1     Following a bench trial on July 17, 1996,

the court terminated the parental rights of Ralph Michael Shipley

(“Father”)2 with respect to his minor children, Michael Lynn

Shipley (DOB: 9/20/87), Beverly Ann Shipley (DOB: 10/28/88),

Tiffany Aleitha Shipley (DOB: 3/29/90), and Frank Michael Shipley

(DOB: 2/3/91).     Father appealed.       He argues that the evidence

preponderates against the trial court’s determination that

multiple grounds existed for the termination of his parental

rights.



                         I.     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).



                          II.    Law and Analysis



            We commence our analysis by observing what is




      1
       Chapter 532, Public Acts of 1995, effective January 1, 1996, as amended
by Chapter 1054, Public Acts of 1996, effective May 15, 1996.
      2
       The children’s mother, Alice Shipley, had earlier surrendered her
parental rights.

                                      2
well-established: 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 likewise 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 trial court found -- expressly predicating its

findings on clear and convincing evidence -- that it was in the

subject children’s best interest to terminate Father’s parental

rights and to award their custody to the State of Tennessee,

Department of Children’s Services.   It based its decision to

terminate, again by a finding of clear and convincing evidence,

on three basic grounds:



          That [Father] has abandoned [the] child[ren]
          in that [he] has willfully failed to visit or
          to engage in more than token visitation for
          four (4) consecutive months immediately
          preceding the filing of this petition prior
          to incarceration;

          That the child[ren] [have] been removed by
          order of a court for a period of six (6)
          months; the conditions which led to the
          removal of [the children] still persist;
          other conditions persist which in all
          probability would cause the child[ren] to be
          subjected to further abuse and neglect and
          which, therefore, prevent the children’s
          return to the care of [Father]; there is
          little likelihood that these conditions will
          be remedied at an early date so that [the
          children] can be returned to [Father] in the
          near future; and the continuation of the
          legal parent and child relationship greatly
          diminishes the children’s chances of early
          integration into a stable and permanent home;




                                3
          That, prior to incarceration, [Father’s]
          conduct was such as to show a wanton
          disregard for the welfare of his children;



          The statutory authority for the grounds relied upon by

the trial court can be found in the Code, as follows:



                        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 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;

                           *    *    *

          (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;


                                4
(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
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:

                 *    *    *

(iv) A parent or guardian is incarcerated at
the time of the institution of an action or
proceeding to declare a child to be an
abandoned child, or the parent or guardian
has been incarcerated during all or part of
the four (4) months immediately preceding the
institution of such action or proceeding, and
either has willfully failed to visit or has
willfully failed to support or make
reasonable payments toward the support of the
child for four (4) consecutive months
immediately preceding such parent’s or
guardian’s incarceration, or the parent or
guardian has engaged in conduct prior to
incarceration which exhibits a wanton
disregard for the welfare 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;

                 *    *    *

(E) For purposes of this subdivision (1),
“willfully failed to visit” means the willful
failure, for a period of four (4) consecutive


                      5
          months, to visit or engage in more than token
          visitation;

                              *    *    *



                        A.   Lack of Visitation



          At the time of the hearing below, Father was serving a

sentence of imprisonment at the Brushy Mountain State Prison in

Petros.   He had been incarcerated continuously since December 8,

1994, and was incarcerated when the State filed its petition to

terminate on May 3, 1996.



          The trial court found that Father had “willfully failed

to visit [his] children,” see T.C.A. § 36-1-102(1)(E), “for four

(4) consecutive months immediately preceding [his]

incarceration.”   T.C.A. § 36-1-102(1)(A)(iv).    In this

connection, the individual who supervised Father’s visitation

during the period from August 1, 1994, to December 8, 1994,

testified as follows:



          Q. Ms. Woody, you said that there had been
          some visits after the children came into your
          care, the Department’s care, in most recent
          time, and that he slept during a couple of
          those; right?

          A. Yes.

          Q. How long did those visits last?

          A. The ones that we were attending, there was
          [sic] two in August and two in September.
          The one in August, of course, was during the
          summertime when the kids were out of school.

          Q. So those would have been three hours?

          A. Three hours.


                                   6
Q. And the others would have been two hours?

A. Two hours, yes.

Q. And which two did he fall asleep during?

A. I’ll tell you, I believe it was the first
-- first two, but I will look. Let’s see,
8/1 of ‘94; 8/1 of ‘94, visit held at park,
12:00 to 3:00 p.m.; Mr. Shipley attended,
however, he did sleep on the picnic table for
most of the visit.

On 8/8/94, visit held at the park, 12:00 to
3:00 p.m. Again, Mr. Shipley did attend,
however, he did -- he did report he was tired
and slept on the picnic table for most of the
visit again.

                 *     *    *

Q. Okay.   Go ahead.

A. Let’s see, the next one was 9/15 of ‘94,
visit held -- the last one was 9/29 of ‘94.
The visit, again, held 3:00 to 5:00 p.m. He
did attend, however, laid on the table away
from the children. One of the children
approached him and asked him to come and
play, but he said he did not feel like it.

Q. Now, being the thorough case worker that
you are, I’m sure you inquired as to why he
was tired and sleepy during those August
visits; right?

A. Yes, I did.

Q. And what did he tell you?

A. He said he was not feeling well and that
his hip hurt.

Q. So basically, illness and a hip problem is
what he was complaining of, feeling ill?

A. Yes.

Q. And did you have any evidence that he was
not feeling poorly?

A. Anything that I observed or that someone
had told me?

Q. Anything you observed?

A. No.


                       7
          Q. And during the two September visits, you
          stated that he remained away from the
          children for part of that visit; is that
          accurate?

          A. Yes.

          Q. And did you inquire about that?

          A. Yes.   He stated he was not feeling well.



          Father did not dispute his inattention to the children

during these visits.   He tried to justify his conduct by stating

that discs in his back were inflamed and were “putting pressure

on the nerves and I couldn’t hardly walk.”   He “explained” his

failure to visit on other occasions during the critical four-

month period by stating that he “was on the run” and “hiding

again” because new criminal charges had been placed against him

and he was trying to avoid capture.



          The trial court pointed out that Father had not

mentioned a disc problem to Ms. Woody, the witness whose

testimony is quoted above.   It is obvious from the transcript of

the trial judge’s remarks following the hearing that he did not

believe Father’s testimony with respect to his back problem.     A

trial court is in the best position to assess the credibility of

witnesses; therefore, such determinations are entitled to great

weight on appeal.   Massengale v. Massengale, 915 S.W.2d 818, 819

(Tenn.App. 1995); Bowman v. Bowman, 836 S.W.2d 563, 567

(Tenn.App. 1991).   His second reason for not visiting -- because

he “was on the run” from law enforcement -- even if true, is a

problem of his own making.   As such, it can hardly serve as a

legal basis for his failure to visit.   He could have visited had

he chosen to do so; he chose not to.

                                 8
          As described by Ms. Woody, Father’s visitation was

“perfunctory” in nature.      See T.C.A. § 36-1-102(1)(C).   It was

“token visitation” at best.      Id.



          The evidence does not preponderate against the trial

court’s findings regarding Father’s “willful[] fail[ure] to

visit.”   See T.C.A. § 36-1-102(1)(E).     Those findings show,

clearly and convincingly, that there was an “abandonment” of the

subject children by a failure to visit, such as to justify

termination under T.C.A. § 36-1-113(g)(1) and T.C.A. § 36-1-

102(1)(A)(iv).



                 B.   Remaining Grounds for Termination



           The trial court found two other bases for terminating

Father’s parental rights.     It found clear and convincing evidence

of the basis for termination found at T.C.A. § 36-1-

113(g)(3)(A)(i)-(iii), and clear and convincing evidence of

“wanton disregard for the welfare of [his] child[ren]” prior to

his incarceration.      See T.C.A. § 36-1-102(1)(A)(iv).



           The subject children had been in the care of the State

since September 3, 1992.     When placed in the State’s care, the

children were, approximately, ages 5, 4, 2, and 7 months.      By the

time of the hearing below they were, respectively, approximately

ages 8, 7, 6, and 5.     We believe that the continuation of the

parent and child relationship “greatly diminishes the

child[ren]’s chances of early integration into a stable and

permanent home.”      See T.C.A. § 36-1-113(g)(3)(A)(iii).   Their


                                       9
mother surrendered her parental rights prior to the hearing

below.    Their father was in prison -- for the third time.   He had

recently had a parole hearing, out of which came a recommendation

that parole consideration be continued for another year.      If he

serves his full sentence, he will be released in March, 2000.

With time off for good behavior, he would be released in the

middle of 1999.    His parole is uncertain.   The proof was clear

and convincing that the children in this case cannot rely upon

the availability of Father to provide them “a stable and

permanent home.”     Id.   There is “little likelihood” that the

unsavory conditions described below “will be remedied at an early

date so the child[ren] can be returned to [Father] in the near

future.”    See T.C.A. § 36-1-113(g)(3)(A)(ii).



            There was compelling evidence that prior to his

incarceration, Father had a drug and alcohol problem.     In fact,

Father admitted that it was this problem that led to his violent

conduct toward his former wife -- the mother of these children --

which in turn prompted the trial court to place the children with

the State in 1992.    There was also evidence that while undergoing

counseling for his drug and alcohol addiction or abuse, he was

still using these substances.     His counselor recommended

inpatient treatment when he reported to her in the late winter of

1994 that he had passed out from drinking the night before.        He

failed drug screens in July, 1993, May, 1994, and September,

1994.    In the year before his incarceration, he resisted the

suggestion that he attend meetings of Alcoholics Anonymous.        His

drug and alcohol counselor closed his case in December, 1994,

concluding that he was just “going through the motions.”


                                   10
          The record even contains evidence from which one could

reasonably conclude that Father was still using drugs and abusing

alcohol in prison.   When interviewed there on January 25, 1996,

Father was evasive about the subject.   In response to the

interviewer’s comment -- that, of course, he wasn’t using these

substances in prison -- he said, “Well, who says I don’t.”



          By his own admission, Father has engaged in criminal

conduct to the extent that he now finds himself in prison for the

third time.   His most recent criminal activity took place while

he supposedly was trying to put his life in order so that he

could again have the care and custody of his children.   This,

coupled with his drug and alcohol problems, is very significant

evidence that all of the conditions for termination set forth in

T.C.A. § 36-1-113(g)(3)(A)(i)-(iii) were shown in this case.     All

of this conduct also shows “a wanton disregard for the welfare of

[his] child[ren]” prior to his incarceration.   See T.C.A. § 36-1-

102(1)(A)(iv).



                         III.   Conclusion



          The evidence before us does not preponderate against

the trial court’s findings of fact supporting termination.     The

evidence is clear and convincing that termination of Father’s

parental rights is in the best interest of the children.     There

is also clear and convincing evidence of the three bases for

termination relied upon by the trial court.




                                 11
          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 enforcement of the judgment and the collection of

costs assessed below, all pursuant to applicable law.



                              __________________________
                              Charles D. Susano, Jr., J.




                               12
CONCUR:



________________________
Houston M. Goddard, P.J.



________________________
Herschel P. Franks, J.




                           13
