Barbara Gatlin v. State of Tennessee, Department of Human Services, In the Matter of Felicia Gatlin, a child under the age of 18

BARBARA GATLIN, )
)
Petitioner/Appellant, )
)
VS. ) Appeal No.
) 01-A-01-9607-JV-00311
STATE OF TENNESSEE )
DEPARTMENT OF HUMAN )
SERVICES, ) Davidson Juvenile
) No. 09-47-86
Respondent/Appellee. )
)
IN THE MATTER OF:
FELICIA GATLIN,
)
)
)
FILED
a child under the age of 18. ) February 5, 1997
Cecil W. Crowson
COURT OF APPEALS OF TENNESSEE Appellate Court Clerk
MIDDLE SECTION AT NASHVILLE
APPEALED FROM THE JUVENILE COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE ANDREW J. SHOOKHOFF, JUDGE
KATHLEEN G. MORRIS
P. O. Box 128091
Nashville, Tennessee 37212
Attorney for Petitioner/Appellant
CHARLES W. BURSON
Attorney General and Reporter
SUE A. SHELDON
Assistant Attorney General
Cordell Hull Building, 2nd Floor
426 5th Avenue North
Nashville, Tennessee 37243-0499
Attorney for Respondent/Appellee
REVERSED AND REMANDED
BEN H. CANTRELL, JUDGE
CONCUR:
TODD, P.J., M.S.
LEWIS, J.
OPINION
The Juvenile Court of Davidson County terminated Barbara Gatlin’s
parental rights respecting her ten year old daughter, Felicia. Because we find that the
record does not contain clear and convincing evidence of abandonment, we reverse.
I.
The United States Constitution protects a parent’s fundamental right to
the care and custody of his or her children. Stanley v. Illinois, 405 U.S. 645, 92 S. Ct.
1208, 31 L. Ed. 2d 551 (1972). The Tennessee Constitution provides the same
protection. Nale v. Robertson, 871 S.W.2d 674 (Tenn. 1994). This right continues
until the parent consents to relinquish it, abandons the child, or forfeits the right by
some conduct that substantially harms the child. O’Daniel v. Messier, 905 S.W.2d
182 (Tenn. App. 1995). The parent’s conduct allowing the state to terminate the
parent-child relationship must be established by clear and convincing evidence. Id.
This case involves a claim that Ms. Gatlin abandoned Felicia. Under the
statutes then in effect, a parent was deemed to have abandoned her child when she
wilfully failed to visit or wilfully failed to support or make reasonable payments toward
the child’s support for four consecutive months immediately preceding the
commencement of the action seeking an order of abandonment. See Tenn. Code
Ann. § 37-1-102(b)(1)(1994 Supp.). The petition to terminate Ms. Gatlin’s parental
rights was filed on November 27, 1995.
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II.
The record shows that Ms. Gatlin has a history of drug addiction. In
1993 she placed her four children with other members of her family and lived here and
there in a series of temporary arrangements. She testified that she was on drugs and
did not want her kids to be around her when she was in that condition.
In 1994, the Juvenile Court of Davidson County, on the petition of
Felicia’s aunt with whom Felicia had been staying, found her to be dependent and
neglected and placed her in her aunt’s custody. In March of 1995, Felicia came into
contact with the Department of Human Services (DHS) when she ran away from her
aunt’s home. Ms. Gatlin contacted the juvenile court and DHS but was told that
without a job or a place to live, there was nothing that she could do to regain custody
of Felicia. She made no other attempts to contact the child; neither did DHS contact
her.1
After the March 1995 incident, DHS took action to provide temporary
shelter for the child and on May 5, 1995 formally took custody. Felicia was placed in
a foster home with a woman who requested custody because she learned about
Felicia’s situation from a friend. In September of 1995 Felicia saw her mother in a
housing project where Felicia lived in her foster home. The mother and child visited
for a brief time and Ms. Gatlin got the foster mother’s telephone number. Ms. Gatlin
called her daughter frequently and asked the foster mother if she could visit the child.
The foster mother denied Ms. Gatlin the right to visit and referred her to DHS. The
foster mother did, however, get the impression that the mother and child loved each
other.
1
DHS did mak e some attempts to contact Ms. Gatlin, but by July of 1995 the Department had
decided to seek a term ination of he r parenta l rights. W e do not express an opinion abo ut whether
DHS’s efforts satisfied the “diligence” required by the statutes.
-3-
Ms. Gatlin spent the month of November in jail on an assault charge
brought by her boyfriend. While in jail she attended a drug treatment program, and
at the time of the hearing below (February 15, 1996), she had been tested for drugs
three times with negative results. She had gotten a job (the day before the hearing)
and was seeking a second job.
We think the proof fails to show that Ms. Gatlin wilfully failed to visit or
wilfully failed to support Felicia for the four month period prior to November 27, 1995.
Admittedly, Ms. Gatlin’s conduct since 1993 has been worthy of condemnation. She
lived a life dominated by drugs and severely neglected her children. But the law
recognizes a difference between neglect and abandonment. Neglect may result in a
termination of parental rights, but only when it persists for more than six months after
the child is removed from the home and there is little likelihood that the condition can
be remedied at an early date. See Tenn. Code Ann. § 37-1-113(g)(3). Whether Ms.
Gatlin’s parental rights may yet be terminated under this provision remains to be seen.
However, in September of 1995 Ms. Gatlin and Felicia met by chance
in the project where Felicia lived. After that chance encounter Ms. Gatlin tried to visit
her daughter, but was told that she should proceed through DHS. She testified that
she did not contact DHS because she had been told previously that she could not get
her daughter back unless she had a home and a job. She did telephone her
daughter. During the month of November, Ms. Gatlin was in jail. The proof is not
clear and convincing that Ms. Gatlin wilfully failed to visit her daughter.
We think the proof also fails to establish that Ms. Gatlin wilfully failed to
support Felicia for that same four month period. Ms. Gatlin testified that she had no
money, and there is no proof to the contrary. An inference might be drawn that she
had enough resources to live and support her drug habit, but she testified that she
was living with someone else. An equally logical inference could be drawn that that
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person was providing her support. In any event, it is understandable that she could
not support her child during the month of November while she was in jail.
The judgment of the court below is reversed and the cause is remanded
to the Juvenile Court of Davidson County for further proceedings. Tax the costs on
appeal to the State.
_____________________________
BEN H. CANTRELL, JUDGE
CONCUR:
_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_______________________________
SAMUEL L. LEWIS, JUDGE
-5-
IN THE COURT OF APPEALS OF TENNESSEE
MIDDLE SECTION AT NASHVILLE
BARBARA GATLIN, )
)
Petitioner/Appellant, )
)
VS. ) Appeal No.
) 01-A-01-9607-JV-00311
STATE OF TENNESSEE )
DEPARTMENT OF HUMAN )
SERVICES, ) Davidson Juvenile
) No. 09-47-86
Respondent/Appellee. )
) Reversed
IN THE MATTER OF: ) and
) Remanded
FELICIA GATLIN, )
a child under the age of 18. )
JUDGMENT
This cause came on to be heard upon the record on appeal from the
Juvenile Court of Davidson County, briefs and argument of counsel; upon
consideration whereof, this Court is of the opinion that the judgment of the trial court
should be reversed.
In accordance with the opinion of the Court filed herein, it is, therefore,
ordered and decreed by this Court that the judgment is reversed. The cause is
remanded to the Juvenile Court of Davidson County for any further proceedings
necessary and for the collection of costs accrued below.
Costs of this appeal are taxed against the State of Tennessee.
ENTER _______________________.
_________________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION
_________________________________
SAMUEL L. LEWIS, JUDGE
_________________________________
BEN H. CANTRELL, JUDGE