The opinion
IN THE COURT OF APPEALS
AT KNOXVILLE
FILED
April 30, 1998
Cecil Crowson, Jr.
Appellate C ourt Clerk
STATE OF TENNESSEE, ) HAMILTON JUVENILE
DEPARTMENT OF CHILDREN'S ) C.A. NO. 03A01-9710-JV-00485
SERVICES, )
)
Petitioner-Appellee )
)
)
vs. )
)
)
)
)
GAIL DENISE EPPS, )
) HON. SUZANNE BAILEY
Respondent-Appellant ) JUDGE
)
)
)
)
)
IN THE MATTER OF: )
)
DEANTWUNG DAVE, )
REKENDRIA DAVE, and )
LEBRON EPPS, )
) AFFIRMED AND REMANDED
Children under eighteen years )
of age )
KENTON HOLLOWAY, Chattanooga, for Appellant.
JOHN KNOX WALKUP, Attorney General and Reporter, and DOUGLAS EARL
DIMOND, Assistant Attorney General, for Appellee.
O P I N I O N
McMurray, J.
In this action, Gail Denise Epps (Mother) appeals from an
order of the Hamilton County Juvenile Court terminating her
parental rights to her three oldest children, Deantwung Dave (DOB
12-19-86), Rekendria Dave (DOB 3-9-90), and Lebron Epps (DOB 3-4-
91). We affirm the judgment of the trial court.
Our standard of review is set forth in T.C.A. § 36-1-113 (c),
which states:
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 [sic: of]
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.
Thus, we review this case to determine if the statutory
requirements for termination of parental rights have been demon-
strated by clear and convincing evidence. The record on appeal
does not contain either a transcript of the evidence or a statement
of the evidence as required by Rule 24, Tennessee Rules of
Appellate Procedure. I t i s w e l l - s e t t l e d t h a t a b s e n t a t r a n s c r i p t
o f t h e e v i d e n c e o r s t a t e m e n t o f t h e e v i d e n c e f i l e d i n a c c o r d a n c e
w i t h R u l e 2 4 , T . R . A . P . , t h e r e i s a c o n c l u s i v e p r e s u m p t i o n t h a t t h e
e v i d e n c e w a s s u f f i c i e n t t o s u p p o r t t h e j u d g m e n t o f t h e t r i a l c o u r t .
S e e M c D o n a l d v . O n o h , 7 7 2 S . W . 2 d 9 1 3 ( T e n n . A p p . 1 9 8 9 ) . S e e a l s o
2
T r a n e C o . v . M o r r i s o n , 5 6 6 S . W . 2 d 8 4 9 ( T e n n . 1 9 7 8 ) a n d D a n i e l v .
M e t r o p o l i t a n G o v e r n m e n t , 6 9 6 S . W . 2 d 8 , ( T e n n . A p p . 1 9 8 5 ) . Thus, we
would be justified in indulging in a conclusive presumption that
the evidence presented at the trial supports the judgment of the
trial court. Since, however, we believe that the subject under
consideration, i.e., termination of parental rights, is of such
great importance, we will closely examine the entire record to
determine whether an error is therein shown. Upon consideration of
the entire record, we are constrained to hold that there was no
error and that the pleadings and reports contained in the record
establish, insofar as we can determine, that the trial court was
correct in finding that the state carried its burden of proving the
necessary elements by clear and convincing evidence.
This case began on February 23, 1992 when the police found the
children alone in the mother's apartment. The children were then
6 years, 2 years, and 11 months old respectively. The Department
of Human Services' petition for temporary custody alleges that the
mother had been gone from the apartment for at least two days, and
there is nothing in the record to contradict this assertion. A
report filed with the court on February 26, 1992 states that the
eldest child, Deantwung, "was able to give the police and counselor
needed information. Deantwung states he fed his brother and sister
milk and bread (the milk was spoiled, the bread was in a brown
paper bag and very hard)." On February 26, 1992, the Juvenile
Court entered a protective custody order placing temporary care and
custody of the children with the DHS.
3
Legal and physical custody of the children remained with the
DHS until February 2, 1995. During the interim, the mother took
parenting classes and received counseling. The DHS' periodic
review summaries in the record indicate that the mother was
generally cooperative, but that she refused to take a psychological
examination for a long time, which apparently held up her progress.
A review summary filed November 3, 1993 concludes that it is
"doubtful that mother is capable of caring for children."
At some point in time not revealed by the record, the
children were placed in foster care. The mother had periodic
visitation with the children. A court report dated December 12,
1994 states that the mother "is having visits every week or every
other week."
On February 2, 1995, physical custody of the children was
returned to the mother, with DHS retaining legal custody. The next
progress report, dated April 21, 1995, states that the "school
reports De[antwung] has been looking sickly since moving back in
with his mother." It also notes that his grades "slipped from A's
to F's and he was out of school two to three days per week up until
end of March." Lebron, the youngest child, showed up one morning
at the Signal Center with a broken-off steak knife. The children
were reported as coming to school unclean and ungroomed. Under the
"emotional/behavioral" category, the report states that "Suzanne at
Signal reports Rekendria and Lebron have regressed since going back
home to live with Mom."
4
The family was enrolled in the "Home Ties" program, "to help
with areas of hygiene, school attendance, discipline, management
and family communication." However, the family had to be withdrawn
from the program because the mother could not be reached for
participation.
At the DHS' request, the Juvenile Court Referee recommended
that physical custody be returned to the state. Apparently
physical custody was removed from the mother on June 29, 1995. The
children were returned to foster care. A court report dated July
12, 1995 states that the mother did not contact the state or the
foster parents after their removal.
The progress report dated October 31, 1995 states the
following:
De's grades have gone back up to A's and his sister
and brother are doing well since being placed back with
foster parents. All three children have bonded well with
their foster parents since going back to them five months
ago.
* * *
Mother has never finished her parenting classes.
Home Ties could not reach [mother]. [Mother] had the
children back six months, and didn't work on her foster
care plan with the state. We contacted Dot Stephenson to
resume individual and family counseling, but [mother]
failed to follow through for the second time.
The record reflects that visitation with the children after
they were removed the second time was sporadic. When the mother
did pick up the children for visitation, they were returned in
5
"filthy" condition. After June 25, 1996, there was only one
visitation by the mother. A review summary on November 14, 1995
states, "Mother shows no interest in getting children back," and a
summary dated November 12, 1996 describes a "complete lack of
parental interest."
On December 6, 1996, the Department of Children's Services
filed a petition to terminate mother's parental rights. On May 28,
1997, the Juvenile Court found the following:
... the subject children have been in the custody of
Petitioner for at least six (6) months; that the condi-
tions which led to said child's [sic] removal still
persist; that there is little likelihood that said
conditions will be remedied at an early date so that the
children can be returned to the natural mother in the
near future; that the continuation of the legal parent
and child relationship greatly diminishes the children's
chances of early integration into a stable and permanent
home; that the Defendant; Gail Denise Epps, has failed to
comply in a substantial manner on the reasonable
responsibilities of the Foster Care Plan; that the
Defendant ... has willfully abandoned the children for
more than four (4) consecutive months next preceding the
filing of the petition in this cause and it is, there-
fore, for the best interest of the said children and the
public that all of the parental rights of the Defendant
... be forever terminated ... .
T.C.A. § 36-1-113(g) provides the following grounds for
termination of parental rights, as pertinent to the present case:
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
§ 36-1-102, has occurred;
(2) There has been substantial noncompliance by the
parent or guardian with the statement of responsibilities
in a permanency plan or a plan of care pursuant to the
provisions of title 37, chapter 2, part 4;
6
(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;
(ii) There is little likelihood that these condi-
tions 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(1)(A) defines "abandonment" as:
"Abandonment" means, for purposes of terminating the
parental or guardian rights of parent(s) or guardian(s)
of a child to that child in order to make that child
available for adoption, that:
(i) For a period of four (4) consecutive months immedi-
ately preceding the filing of a proceeding or pleading to
terminate the parental rights of the parent(s) or
guardian(s) of the child who is the subject of the
petition for termination of parental rights or adoption,
that the parent(s) or guardian(s) either have willfully
failed to visit or have willfully failed to support or
make reasonable payments toward the support of the child;
* * *
(E) For purposes of this subdivision (1), "willfully
failed to visit" means the willful failure, for a period
of four (4) consecutive months, to visit or engage in
more than token visitation;
* * *
(C) For purposes of this subdivision (1), "token visita-
tion" means that the visitation, under the circumstances
of the individual case, constitutes nothing more than
perfunctory visitation or visitation of such an infre-
quent nature or of such short duration as to merely
establish minimal or insubstantial contact with the
child;
7
* * *
(F) Abandonment may not be repented of by resuming
visitation or support subsequent to the filing of any
petition seeking to terminate parental or guardianship
rights or seeking the adoption of a child; and
(G) "Abandonment" does not have any other definition
except that which is set forth herein, it being the
intent of the general assembly to establish the only
grounds for abandonment by statutory definition.
Specifically, it shall not be required that a parent be
shown to have evinced a settled purpose to forego all
parental rights and responsibilities in order for a
determination of abandonment to be made. Decisions of
any court to the contrary are hereby legislatively
overruled;
We concur in the trial court's finding that the mother has
"willfully abandoned" her children, as that term is defined
statutorily. This conclusion is amply supported by the information
available in the record. It is abundantly clear that termination
of the mother's parental rights, which will allow the children to
be placed in a more stable and secure permanent home, is in the
children's best interests under the distressing circumstances of
this case.
We affirm the judgment of the trial court. The case is
remanded for such other and further action as may be necessary.
Costs on appeal are assessed to the appellant.
__________________________
Don T. McMurray, Judge
CONCUR:
8
___________________________________
Houston M. Goddard, Presiding Judge
___________________________________
Charles D. Susano, Jr., Judge
9
IN THE COURT OF APPEALS
AT KNOXVILLE
STATE OF TENNESSEE, ) HAMILTON JUVENILE
DEPARTMENT OF CHILDREN'S ) C.A. NO. 03A01-9710-JV-00485
SERVICES, )
)
Petitioner-Appellee )
)
)
vs. )
)
)
)
)
GAIL DENISE EPPS, )
) HON. SUZANNE BAILEY
Respondent-Appellant ) JUDGE
)
)
)
)
)
IN THE MATTER OF: )
)
DEANTWUNG DAVE, )
REKENDRIA DAVE, and )
LEBRON EPPS, )
) AFFIRMED AND REMANDED
Children under eighteen years )
of age )
JUDGMENT
This appeal came on to be heard upon the record from the
Juvenile Court of Hamilton County, and briefs filed on behalf of
the respective parties. Upon consideration thereof, this Court is
of opinion that there was no reversible error in the trial court.
We affirm the judgment of the trial court. The case is
remanded for such other and further action as may be necessary.
Costs on appeal are assessed to the appellant.
PER CURIAM