Michael Baral v. George Joshua Bombard

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.